Licensing of lap dancing clubs, Public Sector Equality Duty and judicial review   

 

 Introduction

The local authorities have the discretionary power granted to them by the Schedule 3 Local Government (Miscellaneous Provisions) Act 1982 to grant licenses.  This licensing power grants a broad power to the Councils to consider various aspects of the environmental aspects before granting licenses under  Section 27 of the Policing and Crime Act (PCA) 2009 as Sexual Entertainment Venue (SEV), a definition which includes sex shops, sex cinemas and lap dancing clubs. In this evaluation the most important consideration are the Home Office guidelines in the document that concerns licensing.  The licensing condition that the local authority attaches before allowing a lap dancing club to conduct business is an important factor as the Public Sector duty which creates an obligation for local authorities to have due regard to the equal opportunity of participants so that they are not victimized.
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Environmental Risk Assessment and discretionary powers

 The local authorities have been given a broad power to either issue or refuse to grant of a Sexual Entertainment Venue  license on a wide range of grounds when a premises license application is determined. The grounds, set-out within Schedule 3 Local Government (Miscellaneous Provisions) Act 1982 (as amended by Section 27 of the Policing and Crime Act (PCA) 2009 , allows any application for the operation of a lap dancing club to be considered by the local authority .

The exponential growth of this industry has brought a convergence of interest for the regulators and policy makers and lap dancing transcends the environmental, employment and local authority law which all impact on the licensing of the industry. It has caused the judges to offer their perspective based its image as an innovation in public entertainment. In Sutton v Hutchinson EWCA Civ 1773 (2005) Ward LJ described it “ It has been said that one could guess at exactly what lap dancing involves but one could not faithfully describe it “.

The Home Office Guidance states “Once a local authority has decided to grant an SEV licence, it can impose terms, conditions and restrictions on the licence, either in the form of conditions specific to the individual licence or standard conditions applicable to all sex establishments. Standard conditions can relate to: the hours of opening; displays and advertisements; the visibility of the interior to passers-by; any change of use from one kind of sex establishment to another. It is an offence to knowingly contravene, or without reasonable excuse to knowingly permit the contravention of, a term, condition or restriction specified in a licence. A person guilty of an offence can be fined up to £20,000”. Lap dancing clubs –how are they licensed ? House of Commons Library, Briefing paper no 4751, 16/12/19.

This has potentially increased the risks for the local authorities in carrying out an  environmental risk assessment before the license can be issued. The commercial risk for regulators has to be assessed by the ruling in R (Thompson) v Oxford City Council [2013] EWHC 1819 (Admin.)

  which concerned the grant in 2011 by Oxford City Council of a SEV license for a lap dancing club called the Lodge. The following year the Council refused to renew the same licence in the same location which led to the decision being challenged by way of Judicial Review in the High Court.

Mr Justice Haddon-Cave held that in considering the renewal applications the local authorities “are entitled to take “a fresh look” at the matter and accordingly, it is open to a local authority to refuse to renew a licence even where no change in the character of the relevant locality or in the use to which any premises in the locality are put”. (para. 57)

In considering the future development of the area as opposed to its present disposition the judge stated “…licensing decision-makers are entitled to take into account both the present and future ‘character’ of an area. There is no reason to limit the reference to ‘character’ in paragraph 12(3)(d) only to the present character of the area. Indeed, it would make no sense to do so in the context of prospective licences which were to be granted for 12 months in the future. Prospective licences required a prospective view. The fact that an area is developing and in a continued state of change is a relevant consideration to why renewal might be inappropriate.” (Para 68)

The Appeal was heard in  R (Thomson) v Oxford City Council (Spearmint Rhino Ventures (UK) Ltd Intervening (2014) WLR D62  where Spearmint Rhino the operators of the Club raised the impact on them of the withdrawal of the license.  The Court of Appeal held that it was acceptable for a Council under its discretionary powers to take account of the character of the area in adjudging its suitability prior to granting a license with regard to future developments in that area.

Lord Justice Lloyd Jones held that “Under Schedule 3, LG(MP)A 1982, a Council is given a wide discretion in the assessment of whether the grant or renewal of a license would be appropriate having regard to the character of the relevant locality. It seems to me that in making that assessment it should be permitted, at least, to have regard to an imminent development of which it is aware, even if there can be no certainty that it will be completed and operational within the period of the licence”. Para 49

The judgment has prescribed to the local authority a time span which has to reflect the circumstances in the reasonable contemplation of the parties by stating: “Nevertheless, the ability to take account in this context of forthcoming developments cannot be open-ended. The fact that SEV licences can be granted for very short periods which may not, in any event, exceed twelve months has an important bearing on this. Accordingly, I would suggest that it would not be open to a Council to rely, in refusing to grant an SEV licence, on a Development Plan which contemplated development say some five years in the future”. (Para 50)

The Council’s licensing committee has to be reasonable and proportionate in exercising its decision even if they are based on a discretion. This is exercisable in the context of a 12 month period which is the projection from when it exercises its decision. The licensing power has to be reflect the nude dancing for the pleasure of customers and the environmental hazard that it might cause to the public in the surrounding area in terms of its proximity to a prescribed location in the statement of conditions.

The Licensing Act 2003 impacts the lap dancing clubs in its impact on the sale of alcohol. The local authority which issues this license has to have regard under Section 35 to the “ the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm”. The four licensing objectives aim to ensure that the carrying on of licensable activities on or from premises is done in the public interest. Section 36 states further that the “third licensing objective, the prevention of public nuisance, will not extend to every activity which annoys another person but will cover behaviour which, when balanced against the public interest, is found to be unacceptable. The fourth licensing objective relates to harm to children beyond matters relating to physical safety”.

 The health and safety issue which the local authorities  are required by law to undertake has to evaluate the intimate experience of  lap dancing that is based on the virtual sex experience that the dancers are trained to provide and the alcohol that can have an effect on the motivation and the stimulation of the  observing customer.  The local authority licensing committee under its powers can ensure that lap dancing clubs  are practicing safety at work conditions under the Health and Safety at Work Act (HSWA)1974 places a duty of care for employees, casual workers, self-employed workers, clients, visitors and the general public. Under Section 2 (1) “it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”.  Section 2 (2) “Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular (a)the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health“.

This means that there is a requirement for employers to exercise their statutory duty to provide a safe environment at work and the terms of the employment do not matter as long as there is a mutuality of obligation and the employee is working for that employer. The more the dancer can arouse the client the more he is likely to pay increasing the earnings of the dancer in the process through the likelihood of more private dances. However, this can also impact the members of the clients and a balancing exercise is required in the exercise of its discretion by the Council on the likely impact on the participants, customers and the community.

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PTSD and the JR challenges  

The risk assessment is not just for the hazard at the work place but it also includes the Public Sector Equality Duty (PSED) which is set out in Section 149 of the Equality Act.  Section 149 states “(1)A public authority must, in the exercise of its functions, have due regard to the need to—(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it“.

The public sector equality duty stems from the local authorities obligation to promote equal opportunity. It also includes the Public Sector Equality Duty (PSED) which is set out in Section 149 of the Equality Act and the Council has to pay due regard to the stipulation before granting a license for a SEV. This has to be balanced by the Local authorities need to consider the rights of SEV operators who may have under the European Convention on Human Rights (ECHR) particularly under Article 1, Protocol 1 (peaceful enjoyment of possessions) and Article 10 (freedom of expression) of the Convention.

The right to freedom of expression under Article 10 prohibits the government attempting to ban particular forms of political or artistic expression. The prohibition also includes all public bodies such as local authorities, schools and universities”. (Equality and Human Rights Commission,  Freedom of expression, GUIDANCE · LEGAL FRAMEWORK, Freedom of expression, p 10 https://www.equalityhumanrights.com/sites/default/files/20150318_foe_legal_framework_guidance_revised_final.pdf)

These human rights provisions include due regard to the public sector equality duty that prevents discrimination and exploitation. There is the  requirement for the local authorities to consider the freedom of expression of the SEV which has to exist in the sector of adult entertainment. It is an exercise that needs the balancing of the reasonable and proportionate factors prior to the granting of a license or the revocation and renewable of a license. This is justified for the protection of the rights and freedom of others and has to be justified to be in the general public interest.

In canvassing the views of the community the local authority can enter into a Public Consultation that may lead to a nil cap policy. The Edinburgh City Council initiated this with the following brief: “To seek views on whether the Council should adopt these powers and to gain a broader understanding of community views in the potential shape of a licensing system for SEVs, if it was introduced”. (Edinburgh City Council Licensing of Sexual Entertainment Venues. Consultation hub. Opened 8 July ‘2019 and Closed 17 August ’20 https://consultationhub.edinburgh.gov.uk/sfc/licensing-of-sexual-entertainment-venues/)

As a consequence in April this year the city’s regulatory committee voted to proscribe sexual entertainment clubs in the city from April 2023. There were two proposals on the table which were to limit the  number of clubs to four or to institute the nil cap policy and reduce them to zero. The ban will be challenged by the judicial review claim that will be raised by the Union of Sex Workers (USW) who will  attempt to overturn the ban. The USW will invoke gender discrimination under the Equality Act based on the fact that the ban will disproportionally affect women who could lose their livelihood as a result, which would amount to indirect gender discrimination against women under the Equality Act Section 9.

Conclusion

The framework for licensing lap dancing clubs within a local authority’s jurisdiction require consideration of the environmental factors which gives them a wide discretion to consider the demography prior to issuing of a license to operate as a lap dancing club.  This power has been enforced by statute under the Schedule 3 Local Government (Miscellaneous Provisions) Act 1982 to grant licenses and the environmental aspects are conducted under  Section 27 of the Policing and Crime Act (PCA) 2009 to issue Sexual Entertainment Venue (SEV) licensing of clubs that offer nude dancing to customers for the a profit. The local authorities retain a power of issuing a license including that of alcohol which  is under the Licensing Act 2003 that allows them to issue licenses for venues that stay open late night.

In its estimation of granting a license the  local authorities consider the risk assessment which in the instance of lap dancing is the impact on the local community and the potential for the breach of equal opportunity on the licensed premises. The licensing condition has been linked in judicial review to the importance to the “due regard” to the Public Sector Equality duty which creates an obligation for local authorities to prevent the participants from being harassed or victimized. This is an onerous task and the Council have to consider the local circumstances including the health and safety rules prior to issuing a license to a lap dancing club.

Zia Akhtar, LLB (Lon), LLM (Lon), Grays Inn 

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