Licensed to thrill
Scottish ministers are proposing a new licensing regime for sexual entertainment. How well will it sit with other relevant licensing provisions?
The Scottish Government has released a new licensing consultation on the proposed regulation of sexual entertainment venues. Although likely to be controversial due to the subject matter, there are various points of interest for those interested in licensing law. The consultation is effectively a reworking of similar proposals brought forward unsuccessfully twice previously: once back in 2005; and then as a bolt-on to the Criminal Justice and Licensing (Scotland) Act 2010. Those aware of the sexual entertainment venue licensing regime in England will immediately recognise the draft legislation.
In 2005, a working group was established to look at a number of issues including a definition of “adult entertainment”, which it stated should be: “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 on the introduction of the Licensing (Scotland) Act 2005.
Interestingly, what is not mentioned in the consultation is that the regulations under the 2005 Act, the Licensing Conditions (Late Opening Premises) (Scotland) Regulations 2007, provide a different definition than the one provided by the working group. The Regulations’ 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 than the one proposed by the working group.
What is now proposed is a new licensing regime which would introduce double licensing, and yet another definition to contend with, that of “sexual entertainment”, which is entirely different to the already adopted legal definition of “adult entertainment” noted above. The proposed definition 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)”.
It is important to 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. The Scottish Government estimates that just 20 venues in Scotland 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.
The draft legislative provisions are the same as those produced before, and therefore almost identical to proposals enacted in England & Wales when they introduced a sexual entertainment licensing regime under the Policing and Crime Act 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 important as the local authorities who issued them move to adopt the sexual entertainment venue provisions under the PCA 2010.
The long shadow of Brightcrew
The reason the two previous attempts to introduce a new system in Scotland failed was because the Parliament was not convinced at the need for “double licensing”. It thought the 2005 Act was sufficient. In addition, in relation to the 2010 proposals, there was also lack of time for scrutiny. Separately, I believe heed was given to suggestions that the proponents of 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. It is my understanding that the police generally have no difficulties with these premises, which attract few if any issues or adverse reports, and are incredibly well regulated and managed. It is, no doubt, entirely coincidental to the issue of this consultation that the police have raised their profile considerably in relation to the licensing of saunas in Edinburgh recently, attracting much debate.
The first of the above reasons has been markedly changed by the impact of the decision in Brightcrew v City of Glasgow Licensing Board, on which I have opined at Journal, January 2012, 18. Brightcrew, in short, reminds us that a licensing board has limitations, and seeking to regulate matters beyond those limitations is ultra vires. In Brightcrew, this had been the adoption of an adult entertainment policy, influenced by the working group, much of which the court said was beyond the scope of a licensing board.
The Brightcrew pebble continues to cause ripples, with many, such as the Highland Licensing Board convener in relation to an application to add adult entertainment to an Inverness alcohol premises licence in May 2013, suggesting that it robs the licensing board of any real control over adult entertainment. The Government clearly feels emboldened to pursue a separate regime, albeit under the civic legislation, the irony being that these additional powers would be given not to the licensing board but to the separate licensing committee of the council, which is a different animal altogether.
The proposed regime
The proposals would 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 this Act. The scheme would be optional and it would be left to local authorities to decide whether to license such venues in their area, or not. It would be open to authorities to set the acceptable figure of such premises in their area as zero. That would be an interesting proposition for existing operators. Standard conditions would apply, and the 1982 Act is undergoing its 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 proposed regime provides for an exemption for premises offering such entertainment less than three times a year. The English equivalent allows for 11 such events before the licensing requirement kicks in, which is 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 from the comedic end of the scale to something more erotic, and a separate question about eroticism or the depiction of sexual encounters as an art form. This will all no doubt come down to the individual performer and performance, and to that end there must be an element of subjectivity in the regulations.
The closing date for the consultation is 24 September 2013.
Stephen McGowan is a director of TLT Scotland Ltd and head of licensing (Scotland), and chairman of the British Institute of Innkeepers (BII) Scotland