Overview

Introduction

1. 1. East Lothian Council is the licensing authority for the East Lothian area in relation to a wide range of activities. The responsibility of licensing certain activities is delegated to the Licensing Sub-Committee (“the Sub-Committee”).

1. 2. Recently, the Scottish Government brought legislation into force to introduce a new discretionary licensing regime for sexual entertainment venues (“SEVs”). These changes came into effect on 26 April 2019. As of a result of these changes, the Sub-Committee now has discretionary powers in relation to whether SEVs in its area should be licensed.

1. 3. As it is a discretionary licensing regime, it is for local authorities to determine whether they wish to licence SEVs. If a local authority chooses to licence SEVs it must determine what the appropriate number of SEVs in its area should be.

1. 4. The responsibility for determining policy in relation to SEVs and applications is delegated to the Council’s Licensing Sub-Committee.

What is a SEV?

2.1     The Civic Government (Scotland) Act 1982 defines (the ‘1982 Act’)a SEV “as any premises at which sexual entertainment is provided before a live audience for (or with a view to) the financial gain of the organiser”.

1. 2. For the purposes of the definition of a SEV, the following terms and definitions apply:

‘audience’ includes an audience of one, or more;

‘financial gain’ includes financial gain arising directly or indirectly from the provision of sexual entertainment;

‘organiser’ means either the person who is responsible for the management of the premises or the organisation or management of the sexual entertainment or where that person exercises that responsibility on behalf of another person (whether by virtue of a contract of employment or otherwise), that other person;

‘premises’ includes any vehicle, vessel or stall but does not include any private dwelling to which the public is not admitted;

‘sexual entertainment’ means any live performance or any live display of nudity which is of such a nature, ignoring financial gain, such that it must be reasonably assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience; and

“display of nudity” means: in the case of a woman, the showing of (to any extent and by any means) her nipples, pubic area, genitals or anus; and, in the case of a man, the showing of (to any extent and by any means) his pubic area, genitals and anus.

2.3     However, the 1982 Act also states that premises where sexual entertainment is provided on no more than 4 occasions in a twelve-month period are not to be treated as a SEV.

Current Position

3.1     At present there is no legal requirement for SEVs to be licensed in Scotland. If the premises in which the sexual entertainment is taking place sells alcohol then, at present, the premises would only require a Premises Licence under the Licensing (Scotland) Act 2005, which would include “adult entertainment” as an activity on the approved operating plan.

3.2     However, case law in this area has ruled that the licensing regime in the 2005 Act is limited to the regulation of the sale of alcohol only and cannot extend to matters not directly linked to the sale of alcohol.

Potential Impact

4.1     If a decision is made to licence SEVs, the 1982 Act requires the local authority to pass a resolution in order for SEV licensing to have effect in its area. If such a resolution is passed, all SEVs in East Lothian would require to apply for a SEV licence.

4.2     If the Sub-Committee does not adopt the discretionary power available to it to licence SEVs, these venues would not require to be licensed and could continue to operate without any direct regulation from the local authority.

4.3     A local authority which chooses to licence SEVs is obliged to publish a SEV policy statement. If the Sub-Committee decides to pass a resolution to licence SEVs, a draft SEV policy statement would be subject to a separate consultation process.

4.4     Local authorities who pass a resolution to licence SEVs must periodically determine the appropriate number of SEVs for both their area and for each relevant locality within their area. Such determination would be made after a period of consultation.

4.5     There are various grounds for refusal of a SEV licence grant or renewal application under the 1982 Act, including that the number of SEVs in the local authority area or the relevant locality at the time the application is made is equal to or exceeds the number which the local authority considers is appropriate for that locality.

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