GLASGOW CITY COUNCIL LICENSING AUTHORITY RESPONSE TO CONSULTATION ON THE REGULATION OF SEXUAL ENTERTAINMENT VENUES Q1: Should sexual entertainment and the sale of alcohol be licensed separately? If so, what impact, if any, would a parallel regime for sexual entertainment venues have on alcohol licensing? The Glasgow Licensing Authority would welcome the introduction of a dual licensing system in relation to sexual entertainment venues ( SEVs ) and the sale and supply of alcohol within such venues. It is the view of this Authority that the Inner House decision detailed in the case of Brightcrew v City of Glasgow Licensing Board 2011 CSIH 46, makes it clear that Licensing Boards are prevented from regulating any activity that does not directly relate to the sale and supply of alcohol. To that end, this Authority is further of the view that SEVs therefore require to be regulated and has no issue with a dual licensing system being introduced on the basis that the licensing provisions for SEVs are adequately detailed and cover all areas of concern, such as enforcement for example. This Authority cannot foresee there being any adverse impact on the existing licensing provisions for the sale and supply of alcohol in such venues if a dual system is introduced. A dual licensing system is not a new concept in Scottish law as a number of premises currently require a licence under the Licensing (Scotland) Act 2005 ( the 2005 Act ) in respect of the sale of alcohol and under separate legislation in relation to the provision of certain activities, for example theatres, cinemas, late hours catering, indoor sports entertainment, regulated stances and stadia. In respect of these activities, there is no suggestion that these matters can be regulated under the 2005 Act. It should be noted however that the current definition of Adult Entertainment provided in the Licensing Conditions (Late Opening Premises)(Scotland) Regulations 2007, as it also relates to the form of Operating Plan detailed in Schedule 5 of the Premises Licence (Scotland) Regulations 2007, will require to be looked at and amended prior to the introduction of any separate licensing provision for SEVs.
Q2: Do you agree that sexual entertainment premises should be licensed separately from other forms of public entertainment? The Glasgow Licensing Authority agrees that SEVs should be licensed separately from other forms of entertainment. Sexual entertainment is a specific form of activity which, in the view of this Authority, has acquired a reputation over the years as being one that can attract and provide the opportunity for criminality with exploitation, prostitution and human trafficking being particular criminal activities that have gained an association with this type of entertainment. A separate licensing system for this type of activity is therefore necessary in order to implement controls that are both adequate and tailored to this particular type of activity with a view to closing the regulatory gap that currently exists. Q3: Is the definition of an audience as an audience of one appropriate? Yes, particularly as the Glasgow Licensing Authority is aware that many SEVs operate private booths whereby customers, usually individuals, can obtain a private dance from a performer away from the main public area for an additional payment. This Authority is concerned about the reference to live audience and its lack of definition as detailed in the legislative proposals attached to this consultation paper. It is the view of this Authority that this term requires to be defined as a whole, not just the word audience. Taken literally, the term live audience could be taken to mean members of the public who are within the SEV having paid an entry fee. However, in this ever evolving technological age, the way in which SEVs currently operate may change with the possibility of performers performing within the venue itself to an online audience. The potential development of this strand of sexual entertainment would therefore require to be incorporated into any licensing provisions introduced. Q4: Is the definition of sexual entertainment sufficiently clear? Are additional measures required to protect the position of artistic performances including, for example, exotic dancing? The Glasgow Licensing Authority is of the view that some elements of the proposed definition could be better defined. In the view of this Authority, the
terms live display of nudity and artistic performance require to be further defined. This Authority is also of the view that the aforementioned terms are interlinked and that without clear definition, the term artistic performance is subjective to the reader. By way of example, individual views on the characteristics of artistic performances such as burlesque or exotic dancing such as they are referred to in this consultation paper, are likely to differ. Clear definition is therefore required in order to avoid potential issues regarding interpretation from arising if licensing provisions are introduced. Q5: Are there any other venues which should be exempt? In the view of the Glasgow Licensing Authority, no SEV should be exempt from the proposed licensing provisions as to do so would be contrary to the premise behind the introduction of specialist licensing provisions for SEVs i.e. to limit the risk of criminality associated with this particular type of activity, as opposed to the sale of alcohol, and to provide adequate protections and safeguards to those engaging in the activity. Creating an exemption would also be contrary to the overarching principles of the 1982 Act, which Act it is proposed the relevant licensing provisions shall be inserted. The overarching principles are the preservation of public order and safety and the prevention of crime. Notwithstanding this Authority s general view on this matter as detailed above, with reference to the specific proposal that holders of Public Entertainment Licences ( PELs ) should be exempt from the proposed licensing provisions, the nature of a PEL is such that the licence holder themselves define which activities shall be taking place under that particular licence. This may therefore include sexual entertainment but, in terms of the current licensing proposals, as the holder of a PEL, the licence holder would fall out with the scope of being regulated by the proposed regime which creates a clear loophole that requires to be addressed. Q6: Is it appropriate that premises that are used for sexual entertainment on less than three occasions per year should be exempt from licensing? In the view of the Glasgow Licensing Authority, no such cap should be placed on premises that are used for sexual entertainment. As noted in its response
to question 5 above, this Authority is of the view that to do so would be contrary to the premise behind the introduction of the proposed licensing provisions and the overarching principles of the 1982 Act. It is also the view of this Authority that the potential for criminality can exist during one performance or one hundred performances in a SEV and the number of performances does not reduce that risk. Likewise, the potential for public order and public safety to be compromised can exist during one performance in a SEV or many. SEVs should therefore always be subject to the requisite licensing regime. Further, in the view of this Licensing Authority, if a cap were to be introduced, it would be extremely difficult to monitor in practice which SEVs had fulfilled their quota of three performances and which had not. Q7: Is it appropriate that local authorities be allowed to decide that there should be no sexual entertainment venues in their area? Whilst the Glasgow Licensing Authority acknowledges Glasgow City Council s policy on violence against women and is acutely aware of the risk of criminality and criminal activities such as exploitation, prostitution and trafficking that can be associated with SEVs, it recognises that these venues currently form part of Glasgow s economy. This Authority is of the view that the ability to introduce a policy setting a cap at zero should be made available to Local Authorities. However, each Authority would require to be pragmatic in any approach taken regarding the possible introduction of the ability to set such a cap. Transitional provisions for existing premises would need to be considered and each Local Authority would require to clearly evidence why it feels it is appropriate to set a zero venue cap where such a policy is introduced. Q8: Does the approach detailed above offer an adequate regulatory regime to provide control of sexual entertainment and provide local licensing authorities with the powers to determine the nature of the activities they wish to allow in their areas? No. In the view of the Glasgow Licensing Authority, what has been provided in this consultation paper is basic and sets out a provisional position which requires to be added to. It is therefore difficult to comment upon this consultation in any great detail. The general view of this Authority is that
consideration requires to be given to the definitions provided in the draft legislative provisions contained in this consultation paper. Further, detailed consideration requires to be given to the possible introduction of a national mandatory set of conditions for licence holders of a SEV. It is the view of this Authority that such a set of conditions would go some way to establishing a coherent position on the protection of performers in SEVs. This would be particularly useful when dealing with SEV operators running a chain of establishments in different Local Authority areas. Further conditions should include detailed provision regarding the use and operation of CCTV equipment within SEVs as well as the provision of CCTV tapes and equipment to authorised officers of Local Authorities and the police upon request. Conditions regarding advertising and the distribution of promotional materials should also be contained in such a set of conditions as should the impact of such venues upon children and young persons. A condition requiring each SEV to maintain a list of their performers should also be considered. In the further view of this Licensing Authority, crucial to the operation of a successful SEV licensing regime are transitional provisions for existing premises as well as detailed enforcement provisions. In order to assist with the regulation of SEVs and to help ensure the protection of performers, members of the public in attendance at the SEV and to reduce the risk of criminality, detailed enforcement provisions akin to those provided in Part 2 of the 2005 Act for Licensing Standards Officers should be introduced. Transfer provisions for which there is no current provision contained within the 1982 Act should also be considered. Q9: Are there any other issues which Scottish Ministers should take into account in considering possible legislation to provide for the licensing of sexual entertainment venues? This Licensing Authority has no comment to make having detailed its views in question 8 above.