ON THE SCOTTISH GOVERNMENT’S CONSULTATION TO INTRODUCE A NEW LICENSING SCHEME FOR SEXUAL ENTERTAINMENT VENUES
[This is an extended version of the article which appeared in the Journal of Law Society of Scotland in August 2013, here].
The Scottish Government has released a new licensing consultation, this time on the proposed regulation of sexual entertainment venues. The consultation was launched on 24 June 2013 and the closing date for responses is 24 September 2013. The consultation can be accessed here.
There is nothing particularly new here for the avid licensing fan. The consultation is effectively a re-hash of similar proposals brought forward unsuccesfully twice previously, once back in 2005 and then as a bolt-on to the Criminal Justice and Licensing (Scotland) Act 2010. In addition, those with wandering eyes gazing south of the border will recognise the draft legislation immediately.
In 2005 a Working Group was established and they looked at a number of issues including a definition of adult entertainment. The report was published on 24 April 2006 and can be read here. The definition created by this working group was: “The performance in a public place of any activity that a reasonable person would, in all the circumstances, consider to be for the purpose of providing sexual gratification and/or titillation.” This report informed the Statement of Licensing Policy of many licensing boards across Scotland with the introduction of the Licensing (Scotland) Act 2005. Interestingly, regulations under the 2005 Act itself provide for a different definiton of “adult entertainment” which is actual law (as opposed to a definition provided by a working group) by way of the Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007, and this is not mentioned in the consultation. The legal definition is: “any form of entertainment which (a) involves a person performing an act of an erotic or sexually explicit nature; and (b) is provided wholly or mainly for the sexual gratification or titillation of the audience“. This enacted definition is a tighter version of that proposed by the Working Group, leaving less wiggle room.
What we now have is a new licensing regime which would introduce double licensing, and yet another definition to contend with, that of “sexual entertainment”, which is a different beast entirely to the already adopted legal definition of “adult entertainment” under the 2005 Act. The proposed definition of “sexual entertainment” is: “(a) any live performance; or (b) any live display of nudity, which is of such a nature that, ignoring financial gain, it must reasonably be assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience (whether by verbal or other means).”
The Scottish Government estimates that there are just 20 venues in Scotland which would be caught by the new regime. I estimate that most if not all of them will operate with an alcohol licence too. This means that two competing definitions relating to adult or sexual entertainment will exist and it does seem to me that this is unworkable for any number of reasons.
I also note that the draft legisative provisions are the same as those produced before and therefore almost identical to the proposals which were enacted in England & Wales when they introduced a sexual entertainment licensing regime under the Policing and Crime Act 2010, with the regime going live in England on 6 April 2010 and then later in Wales on 8 May 2010. Interestingly, there are completely separate rules for certain premises in London only, known as “sexual encounter venues” (these were granted under the old Greater London Council (General Powers) Act 1986 and will become less and less as the local authorities who issued them move away from the 1986 provisions and adopt the sexual entertainment venue provisions under the PCA 2010) and “hostess bars” (licensed under the London Local Authorities Act 2007).
THE LONG SHADOW OF BRIGHTCREW
The reasons the two previous attempts are introducing a new licensing system in Scotland failed were, as I understand it, because Parliament was not convinced at the need for “double licensing” and thought the 2005 Act was sufficient, but also because the proponents for the regime seemed to be trying to fix a problem for which evidence was lacking. There is much anecdotal and moral posturing about such premises as well as continual suggestions that they are linked to crime and disorder such as trafficking and prostitution. My understanding, however, is that the police generally have no difficulties with these premises which attract little if any issues or adverse reports and are incredibly well regulated and managed and this was a view which may have also been influential in Parliament’s thinking. It is no doubt entirely co-incidental to the issue of this consultation that the police have raised their profile considerably in relation to the licensing of saunas in Edinburgh in the last week, attracting much debate. In addition, as far as the “bolt-on” to the 2010 Act is concerned, there was also the lack of time to give the proposals scrutiny.
The first of these reasons not to adopt has been markedly changed by the impact of the decision in Brightcrew, on which I have opined on these blog pages on countless occasions as well as in numerous publications such as here and here). The Brightcrew decision, in short, reminds us that a licensing board has limitations and seeking to regulate matters beyond those limitations is ultra vires. In the case of Brightcrew, this had been the adoption of an adult entertainment policy (influenced by the working group) much of which was beyond the scope of a licensing board. The Brightcrew pebble continues to cause ripples and with many suggesting that it robs the licensing board of any real control over adult entertainment (see, for example, the Highland Licensing Board convenor’s comments in relation to an application to add adult entertainment to an alcohol premises licence in Inverness in May 2013), the Government cleary feels emboldened to pursue a separate regime (albeit under the civic legislation) which would re-introduce those additional powers.
As an aside, it is interesting to note the consultation’s reference to Brightcrew (although not specifically named) and the remit of the alcohol licensing scheme, and how these comments interact with the Government’s other comments made on the case in the Further Options for Alcohol Licensing consultation, which has now closed and results awaited.
THE PROPOSED REGIME
The details of the regime would be create a new type of licence under the Civic Government (Scotland) Act 1982. Note that there is an existing licence requirement for a “sex shop” under the 1982 Act (those interested in that scheme should read chapter 19 of my 2012 book Local Government Licensing Law in Scotland).
The scheme would be optional; in other words, it would be left to local authorities to decide whether to license such venues in their area, or not. Standard conditions would apply and the 1982 Act is undergoing it’s own fundamental changes in relation to “mandatory” and “standard” condition regimes. No doubt the list of proposed conditions would be influenced greatly by the Working Group report, those conditions created by individual licensing boards in their statement of licensing policy, and perhaps by way of further consultation. The procedural aspects such as application process are effectively a cut and paste of the sex shop licensing provisions, so expect such familiar licensing friends as site notices, the “fit and proper” test and so on.
There are some interesting points to make, however.
The regime provides for an exemption for premises offering such entertainment less than 3 times a year. The English equivalent allows for 11 such events before the licensing requirement kicks in, a substantial difference. There are also exemptions for licensed theatres, public entertainment venues and sex shops. There is no exemption for alcohol licensed premises. There is also recognition of the grey area surrounding the difference between an artistic display and entertainment provided for sexual stimulation. There can be a fine line in some burlesque style shows which perhaps tip the scales from the comedic oo-er-missus end of the scale to something more erotic; and a separate question about eroticism or the depiction of sexual encounters as an art form. Some will maintain that a “full monty” style male strip-tease has nothing to do with sexual stimulation and everything to do with hilarity. This will all no doubt come down to the individual performer and performance and to that end there must an element of subjectivity in the regulations.
I note that the definition proposed is not that sexual stimulation has actually occurred, but that the entertainment is of such a nature that it must reasonably be assumed it is provided solely or principally for stimulation. That will no doubt raise a sigh of relief from enforcement officers.
Lastly, I pause to observe that there is no prior or grandfather rights provisions envisaged here. That means that all 20 or so premises in Scotland will have to apply for the licence by whatever the relevant date is, with the knowledge that their application can be refused. It could even be the case that a local authority may adopt the licensing scheme and resolve that the appopriate number of licences is zero! How does that affect existing operators? It may seem inequitable that a premises which has traded for many years with not a blot on it’s copybook may suddenly be out of business. There is English caselaw on this sort of situation which I may develop upon another time. It will also be interesting to note what the application fee structure will be given the now all-too apparent influence of the European Services Directive and the case of Hemming v Westminster City Council 2012.