Licensing of sexual entertainment venues
28. Section 76 of the 2015 Act introduces a discretionary licensing regime for SEV. It achieves that by amending the existing licensing regime for sex shops provided for in Part III and Schedule 2 of the 1982 Act so that the provisions, with necessary modification, also apply to SEV. It is important to emphasise that it is not mandatory for a local authority to licence SEV. A flowchart setting out the steps local authorities are required to take is at Annex A.
29. When deciding whether to licence SEV, local authorities should obtain independent legal advice in order to ensure that they are able to mitigate the risks of legal challenge to an acceptable level. They should also take into account the Public Sector Equality Duty to which local authorities are required to pay 'due regard' when carrying out their functions and the specific duty to assess and review policies and practices.
Local Authority Resolution
30. Where a local authority decides to licence SEV, section 45B of the 1982 Act, requires the local authority to pass a resolution in order for SEV licensing to have effect in their area. It also requires at section 45C that where a local authority decides to licence SEV it must prepare an SEV policy statement and further information on this is provided at paragraphs 38-57.
31. In considering whether to pass a resolution a local authority should consider, whether they will wish to control SEV even if no such premises are currently in operation in their area. If there is no resolution in place, then no licence is required to operate an SEV. Existing SEV could continue to operate, new SEV could come into operation, without an SEV licence. Sexual entertainment in those venues would remain largely unregulated. If a resolution is passed, existing SEV and any new SEV, will require an SEV licence.
32. In considering whether to pass a resolution to licence SEV, local authorities may wish to look carefully at their localities and consider a range of issues such as:
- whether there are any sexual entertainment venues already operating;
- the location of schools;
- the location of places of worship;
- the location of heavily residential areas;
- the location of women's refuges and shelters and other services focussed on supporting women, children and young people;
- whether there have been incidents involving anti-social behaviour, sexual assaults, prostitution or more minor harassment reported in any particular area; and
- whether there have been incidents of human trafficking or exploitation locally.
33. Local authorities who have resolved to licence SEV must determine the appropriate number of SEV for both their area and for each relevant locality within their area (see paragraph 9(5A) of Schedule 2 of the 1982 Act). Paragraph 9(5)(c) of Schedule 2 allows local authorities to refuse applications on grounds that, at the time the application is determined, the number of SEV in the local authority's area or relevant locality is equal to or exceeds the number that the authority considers appropriate for their area or that locality.
34. Local authorities have extensive experience of engaging with local people and will know what works best in their individual areas. Local authorities may wish, as a matter of good practice, to seek the views of local people and businesses prior to deciding whether to pass a resolution. In doing so, local authorities may wish to make any relevant information available to local people in order to inform their understanding. Local authorities may also wish to engage with the operators of known SEV as soon as a decision has been made, to ensure that they are aware of what action they will need to take, and to seek input from the local Police Scotland human trafficking champion or the Human Trafficking Unit at Gartcosh.
35. In considering whether to pass a resolution to licence SEV, local authorities must also have cognisance of other relevant legislation such as the EU Services Directive, the Regulatory Reform (Scotland) Act 2014 and the Convention rights of SEV operators. Local authorities should consider whether the decision to licence SEV is proportionate and justifiable.
36. If licensing SEV, a local authority must determine, from time to time, the number of SEV that they consider appropriate for their area and each relevant locality. Nil may be considered the appropriate number. The determination should be publicised. Further guidance on what a local authority may wish to consider in determining numbers and localities is provided below in relation to developing the policy statement.
37. Where a local authority passes a resolution, it must specify a date from when it is to take effect in their area. This must be at least one year from the date the resolution is passed. The local authority must also publish notice that they have passed a resolution not less than 28 days prior to the date the resolution is to take effect. The notice must state the general effect of the licensing procedure and provisions at Schedule 2 of the 1982 Act, as modified for SEV, and be published either electronically or in a local newspaper.