Consultation on Guidance on the Provisions for Licensing of Sexual Entertainment Venues and Changes to Licensing of Theatres
1. The key aims of civic licensing are the preservation of public safety and order and the prevention of crime. The Scottish Government considers that it is appropriate that sexual entertainment venues should be licensed in order that both performers and customers benefit from a safe, regulated environment and that the licensing of these venues would help limit the risk of criminality, such as prostitution and human trafficking.
2. The Air Weapons and Licensing (Scotland) Act 2015 (the '2015 Act') therefore provides for the creation of a new licensing regime for sexual entertainment venues ( SEV), such as lap dancing clubs. The provisions, when commenced, will allow local authorities to licence such venues under the Civic Government (Scotland) Act 1982 (the "1982 Act"). We understand that there are currently only around a dozen such establishments in Scotland.
3. The draft guidance is a work in progress primarily to support implementation of the new licensing regime for SEV. It also includes material on the repeal of the existing mandatory licensing regime for theatrical performances under section 12 of the Theatre Act 1968 and the ability of local authorities to licence theatres under the more flexible public entertainment licence requirements contained within the 1982 Act. The 2015 Act provides for this but much will depend on commencements or amendments to secondary legislation that are still to be made. In particular, details of the timeline will be dependent on the particulars of any commencement order and the guidance will be updated to reflect the final position before publication.
4. The SEV provisions in the 2015 Act were subject to detailed stakeholder engagement, consultation and parliamentary scrutiny. In developing the licensing regime care was taken to balance individual freedom of choice with the right of local authorities to exercise appropriate control and regulation of sexual entertainment venues that operate within their areas.
5. The provisions at section 76 of the 2015 Act establish a specific licensing regime for the regulation of SEV. This allows for greater local control over the provision of such venues by allowing local authorities to licence SEV and to set the number able to operate in their area taking account of local circumstances.
6. However, this is not a mandatory regime and it will be for individual local authorities to determine whether they wish to licence SEV. If a local authority passes a resolution to licence SEV, the resolution must specify a date when it is to take effect, which is at least one year from the date the resolution is passed and the local authority must also prepare a policy statement. Both the resolution and the policy statement should be published, at the same time and in the same manner, not less than 28 days prior to the resolution taking effect.
7. Where a resolution is in place, the established procedure for considering applications to operate SEV, which is laid out at Schedule 2 of the 1982 Act, should be followed. Where no resolution is in place, no licence will be required to operate SEV.
Purpose of Consultation
8. In carrying out its functions in relation to SEV, a local authority must have regard to non-statutory guidance issued by Ministers. The purpose of this consultation is to invite views on the draft non-statutory guidance which has been developed prior to it being finalised and published.
9. The non- statutory Guidance on the Provisions for Licensing of Sexual Entertainment Venues and Changes to Licensing of Theatres at Annex A is a technical document to support the operation of the new licensing regime, as such, the guidance cannot go much beyond explaining the legislation in layman's terms. While the interpretation of the primary legislation is ultimately a matter for the courts, the guidance aims to provide advice to local authorities, SEV operators, local people and other interested parties on the new measures introduced by the legislation.
10. The draft guidance takes account of engagement with local authority stakeholders. The views of Scottish Government policy officials with an interest in violence against women and girls, prostitution and human trafficking have also been taken on board to ensure that it recognises the relationship between licensing SEV and other strategies such as Equally Safe: Scotland's strategy for preventing and eradicating violence against women and the Trafficking and Exploitation Strategy.
11. A non- prescriptive approach has been taken to drafting the guidance as we consider that local authorities are best placed to reflect the views of the communities they serve and to determine whether sexual entertainment establishments should be licensed within their areas and if so, how many and under what conditions.
12. The prime intention of the draft guidance is to assist local authorities in taking forward work in relation to licensing SEV and to help ensure that such activities take place in safe and regulated environments.
13. It is important that the guidance meets its aims and we would welcome comments on :
a) any areas within the draft non-statutory guidance which you found were unclear or not easily understood, please specify the paragraph
b) other issues which you believe should be taken into account within the guidance.
14. Please note that this consultation is not seeking views on the legislation relating to the licensing of SEV which was fully explored during the parliamentary passage of the 2015 Act.
Deadline for responding
15. You are invited to send your views and comments on the draft Guidance on the Provisions for Licensing of Sexual Entertainment Venues and Changes to Licensing of Theatres by midnight on 07/02/2018.
Responding to this Consultation
16. Please respond to this consultation using the Scottish Government's consultation platform, Citizen Space. You view and respond to this consultation online at https://consult.scotland.gov.uk/justice/licensing-of-sexual-entertainment-venues. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before consultation closes at midnight on 07/ 02/ 2018.
17. If you are unable to respond online you can submit a response along with a completed Respondent Information Form (see "Handling your Response" below) to:
Handling your response
18. If you respond using Citizen Space ( http://consult.scotland.gov.uk) you will be directed to complete the Respondent Information Form. Please indicate how you wish your response to be handled and, in particular, whether you are happy for your response to published.
19. If you are unable to respond via Citizen Space please complete the Respondent Information Form provided at Annex B and submit it alongside your response. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.
20. All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.
Next steps in the process
21. Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at http://consult.scotland.gov.uk. If you use Citizen Space to respond, you will receive a copy of your response via email.
22. Following the closing date, all responses will be analysed and considered along with any other available evidence. Responses will be published where we have been given permission to do so.
Comments and complaints
23. If you have any comments about how this consultation exercise has been conducted, please send them to Licensing.Consultation@gov.scot
Scottish Government consultation process
24. Consultation is an essential part of the policy-making process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.
You can find all our consultations online: http://consult.scotland.gov.uk. Each consultation details the issues under consideration, as well as a way for you togive us your views, either online, by email or by post.
25. Consultations may involve seeking views in a number of different ways, such as public meetings, focus groups, or other online methods such as Dialogue ( https://www.ideas.gov.scot)
26. Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:
- indicate the need for policy development or review
- inform the development of a particular policy
- help decisions to be made between alternative policy proposals
- be used to finalise legislation before it is implemented.
27. While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.
Email: Anne Hampson