Memorandum submitted by OBJECT

 

About Object: Object is a human rights organisation which campaigns against 'sex object culture' - the increased sexual objectification of women in the media and popular culture. This promotes attitudes underpinning discrimination and violence based on gender. Object acts as an adviser to Amnesty International UK and provides educational material to groups such as NSPCC, WOMANKIND worldwide and Rape Crisis England and Wales. Our current campaign 'Stripping the Illusion' strips the illusion that lap dancing clubs are harmless, impact-free leisure venues and challenges a licensing regime which has facilitated normalising of the industry.

 

Executive Summary: Since 2005 lap dancing clubs have been licensed as restaurants. This has acted as a green light to the industry which has doubled in size since 2004. The spread of lap dancing clubs - which councils have been near powerless to stop - and their subsequent mainstreaming runs counter to the promotion of gender equality. The Licensing Act 2003 is not an adequate vehicle for the licensing of lap dancing clubs. Object and the Fawcett Society are therefore calling on the Home Office to introduce clauses in the upcoming Policing and Crime Reduction Bill (PRCB) which will extend the Sex Encounter Establishment category nationwide and remove an exemption for Premises Licence holders. This will enable local councils to licence lap dancing clubs as SEEs and give local communities greater powers to control the number of lap dancing clubs in their area.

 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


1. WHAT ARE LAP DANCING CLUBS?

Lap dancing clubs are venues where customers pay female performers to dance their on their lap whilst removing most or all of their clothing. This occurs at tables, in private rooms or in private booths.

 

2. CURRENT LICENSING OF LAP DANCING CLUBS

Since introduction of the Licensing Act 2003 it has become far easier for lap dancing clubs to obtain licences. Prior to the Act local councils could impose two licences on lap dancing clubs: a public entertainment licence and a licence for striptease. Today lap dancing clubs require only a licence to retail alcohol and are boxed into the same 'one size fits all' licensing category as cafes and karaoke bars.

 

3. WHY IS THIS A PROBLEM: LOCAL COUNCILS

In taking their lead from the Act many local councils do not differentiate between Premises Licence applications. This makes monitoring difficult, for example in London 20% of local authorities are unsure how many lap dancing clubs they licence.

Local authorities may only apply regulation to lap dancing clubs which corresponds directly to four licensing objectives; public safety, public order, public nuisance and protection of children from harm. This prevents them from putting in place conditions relevant to lap dancing clubs such as how many licences are granted in an area or the use of private booths.

In London alone half of all local authorities are unhappy with current licensing and at least 25 local authorities across England and Wales have experienced serious problems in the licensing of lap dancing clubs.

 

4. WHY THIS IS A PROBLEM: LOCAL PEOPLE

The Licensing Act introduced restrictions on who can have a say in the licensing of lap dancing clubs. Views will only be considered if they come from residents who pass a 'postcode test' and live within 100 - 200m of a proposed lap dancing club. This fails to take into account the impact of lap dancing clubs on people who work in or travel near the area.

It is extremely difficult for residents to prove that licensing objectives will be breached and the Act places the onus on residents to provide evidence of this rather than placing the onus on club operators to justify their application.

Prior to the Act residents could contribute to licence renewal hearings which took place every 1-3 years. However a Premises Licence runs in perpetuity unless an application for a review finds a licensing objective has been breached.

 

5. WHY THIS IS A PROBLEM: GENDER EQUALITY

Lap dancing clubs are part of the commercial sex industry and have a different social impact from other venues included in the Premises Licence category. This is not accounted for in 'one size fits all' licensing.

Lap dancing clubs promote seeing women as sex objects, not people. They fit into a wider culture of sexual objectification which underpins discrimination and violence based on gender - as Object's Stripping the Illusion campaign highlights. However a local authority cannot take this into account when licensing lap dancing clubs - the Licensing Act 2003 prevents them from using policy (such as a gender equality policy) to overrule the four licensing objectives. This runs directly counter to the 2007 Gender Equality Duty which requires local authorities to promote gender equality in all they do.

 

6. LAP DANCING INDUSTRY PROPOSALS

Lap dancing club owners, represented by the Lap Dancing Association, are arguing against tighter regulation. Their proposals would instead see changes to the Licensing Act 2003, to ensure that all applications for lap dancing clubs are clearly noted by local councils as 'major variations'. This is a wholly inadequate proposal that does not address the fundamental problem: legislation drafted to licence coffee shops and karaoke bars is simply not adequate for regulating the commercial sex industry. Tinkering with the Licensing Act 2003 would do nothing to give local communities a greater say in whether lap dancing clubs are given licences and would not allow gender equality to be considered as a licensing objective.

 

7. THE ONLY VIABLE SOLUTION: SEX ENCOUNTER ESTABLISHMENT LICENCES

Local councils should be enabled to licence lap dancing clubs as Sex Encounter Establishments (SEEs). An SEE is a venue where live visual entertainment of a sexual nature is provided. The licence is currently used for peep shows in London and allows local councils to decide how many such venues they licence and where they should be located. It also allows councillors to set 'null policies' - where the decision is taken not to grant any licences.

 

Lap dancing clubs clearly fall under the category of SEEs - yet this is not legally recognised. The law should be changed so that lap dancing clubs can be required to purchase both a Premises Licence (for alcohol) and an SEE licence for lap dancing. The same powers that currently apply only to sex shops, peep shows and sex cinemas will therefore also apply to lap dancing clubs. This will restore democracy to the licensing process by giving local communities greater powers to decide on whether any lap dancing clubs should be operating in their area. Crucially it will allow gender equality to be considered in the licensing of lap dancing clubs.

For further information please contact Sandrine Leveque, Advocacy Officer at sandrine@object.org.uk

 

LAPDANCING ESTABLISHMENTS: LEGAL BRIEFING

 

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ADVICE

 

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INTRODUCTION

1. I am instructed on behalf of Object and the Fawcett Society to advise briefly on the system for the regulation of lap dancing in England and Wales. The context is that Gerry Sutcliffe MP, a Minister in the Department of Culture, Media and Sport, has written to the Chief Executives of local authorities, inviting them to state whether they desire additional powers to control such establishments, and in the light of their response the Home Secretary has indicated that additional powers will be granted to local authorities. I understand that this advice will be shared with Members of Parliament.

THE PROBLEM

2. Under the Licensing Act 2003, licensing authorities may only impose controls on lap dancing establishments (whether by attaching conditions or outright refusal) if a) a relevant representation has been made on the application by a responsible authority (e.g. the police) or interested party (a local resident or business) and b) the authority considers it "necessary" in order to promote one of the licensing objectives. These are the prevention of crime and disorder, public safety, prevention of public nuisance and the protection of children from harm.

3. The experience of licensing authorities is largely that the Act provides an ineffective tool to control the proliferation of such establishments or to prevent fully nude dancing or the maintenance of distance between dancers and customers. The reasons for this are at least threefold. First, objecting residents have to live in the vicinity. It is not enough if they just visit there to shop or enjoy leisure. Second, it is very difficult for residents to prove that a particular harm will arise from the licence. This problem has recently been exacerbated by the decision of the High Court in Thwaites v Wirral Borough Magistrates Court [2008] EWHC 838 (Admin) which emphasised that findings as to future harm need to be based on evidence. Of course, it is very difficult to prove harm to the licensing objectives prospectively. Third, the ambit of the licensing objectives is inapt to reflect wider community objectives, e.g. tourism or regeneration policies; or the kind of concerns to which lap dancing establishments may give rise, regarding the character of the area and the fears of those, particularly women, who have to pass by such establishments.

4. A further difficulty facing authorities is provided by the Secretary of State's Guidance under section 182 of the Licensing Act 2003, to which authorities are obliged to have regard. This provides:

2.17 The Indecent Displays Act 1981 prohibits the public display of indecent matter, subject to certain exceptions. It should not therefore be necessary for any conditions to be attached to licences or certificates concerning such displays in or outside the premises involved. For example, the display of advertising material on or immediately outside such premises is regulated by this legislation. Similarly, while conditions relating to public safety in respect of dancing may be necessary in certain circumstances, the laws governing indecency and obscenity are adequate to control adult entertainment involving striptease and lap-dancing which goes beyond what is lawful. Accordingly, conditions relating to the content of such entertainment which have no relevance to crime and disorder, public safety, public nuisance or the protection of children from harm could not be justified. In this context, however, it should be noted that it is in order for conditions relating to the exclusion of minors or the safety of performers to be included in premises licence or club premises certificate conditions where necessary. The Local Government (Miscellaneous Provisions) Act 1982 insofar as its adoptive provisions relate to sex establishments - sex shops, sex cinemas and in London sex encounter establishments - also remains in force.

5. In fact, the Local Government (Miscellaneous Provisions) Act 1982 ("LGMPA") provides no control over the proliferation of lap dancing establishments. Object and the Fawcett Society's argument is that it should do so. It is easy to understand the justification.

6. The LGMPA allows local authorities to licence and regulate sex establishments in their area. It is important to note that the provisions are adoptive, so that an authority which does not wish to have these powers may simply refrain from adopting the legislation.

7. The benefit of the LGMPA is that it provides a much wider list of grounds for refusal of a licence than is provided for under the Licensing Act 2003. These include that the number of sex establishments in the locality is equal to or exceeds the number which the authority consider is appropriate for that locality; and that a licence would be inappropriate, having regard to the character of the relevant locality, or the use to which any premises in the vicinity are put, or the layout, character or condition of the premises themselves.[1] Indeed, if the licence is refused on those particular grounds, there is no appeal to the magistrates court.[2]

8. However, the LGMPA cannot currently be used to regulate lap dancing. This is because of the definition of "sex establishment."

9. Outside London, a sex establishment is defined as a sex cinema or a sex shop.[3] Therefore, outside London, while the LGMPA regulates sex on celluloid or on the page, it does not regulate live sex. The reason for the lacuna is principally historic rather than logical.

10. In London, the definition of "sex establishment" goes wider than merely a sex cinema or a sex shop. It includes "sex encounter establishments." These are premises supplying (inter alia) performances "which wholly or mainly comprise the sexual stimulation of persons admitted to the premises", services provided by persons "who are without clothes or who expose their breasts or genital, urinary or excretory organs while they are providing the service" (e.g. topless bars), and entertainments by persons "who are without clothes or who expose their breasts or genital, urinary or excretory organs during the entertainment" (striptease).[4] Thus, the definition in London is plainly wide enough to encompass lap dancing. However, any premises which have and use a licence under the Licensing Act 2003 for regulated entertainment or late night refreshment are taken out of the definition of sex encounter establishments.[5] Thus, in London a live sex show is regulated under the LGMPA, but not if customers can buy a pizza with the show. Again, the logic is hard to discern.

THE SOLUTION

11. Object and the Fawcett Society therefore argue for a simple amendment to the LGMPA:

a. to give authorities outside London the same power to regulate sex encounter establishments as are enjoyed by London authorities;

b. to remove the exemption for premises with licences for regulated entertainment or late night refreshment.

12. This is the thrust of the Ten Minute Rule Bill presented to Parliament by Roberta Blackman Woods MP on 18th June of this year, which obtained cross-party support.

13. In short the benefit for local authorities would be that they could obtain wider powers to control the proliferation of lap dancing establishments than they currently enjoy under the Licensing Act 2003, with less risk of appeal (and therefore costs). Those authorities who do not wish to have the powers need not adopt the legislation. It is important to note that an amendment to the LGMPA would not require authorities to refuse licences. It would simply give authorities wider powers than they currently have to regulate whether, where and on what terms lap dancing premises may be established, to reflect the priorities and wishes of the wider community.

14. In his letter, the Minister requested views as to whether planning law might assist in the control of lap dancing establishments. The answer is that planning plays at best a marginal role. Any premises currently enjoying a D2 (assembly and leisure) use would not need planning consent to introduce stripping. Even if they enjoyed a different planning use, such as A4 (pubs), they might be able to argue that stripping was merely incidental to the primary use and did not involve a change of use requiring planning permission. Even if this argument did not avail them, it is fair to say that national and local planning policy is largely silent on stripping as a species of entertainment, and it would be hard to use planning powers effectively to protect against such proliferation. I am far from saying that planning is entirely toothless, for the character of the area and legitimate fears of crime among local people are material planning considerations. But for practical purposes, planning does not provide a significant hurdle for those wishing to establish lap dancing venues. The benefit of the licensing regime is that it is far more sensitive to the precise content of the "entertainment" being offered, and any variations in the nature of such entertainment over time.

LEGISLATIVE AMENDMENTS

15. The legislative amendments required are brief. A suggested Bill is attached at Appendix 1.

16. One other matter worthy of consideration is how to ensure that nudity as part of a dramatic work is not accidentally picked up by the definition. I do not believe that the definition of sex encounter set out above could seriously be held to encompass nudity incidental in a play. However, should it be considered necessary, the definition may be followed by a new section: "For the avoidance of doubt nudity incidental to a dramatic work shall not require a licence under this Act."

17. I also understand that the Home Office is considering whether pubs which have a weekly striptease would be made to seek a sex encounter licence. It does not seem to me that this raises any issue of principle. The definition of sex cinema and sex shop in Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982 both include the test of "significant degree". That leaves the matter as one of sensible judgment by the licensing authority. There is no reason for a different approach in the case of sex encounter. The authority would have to consider a) whether the entertainment or service provided meets the definition of sex encounter, and b) whether this is occurring to a significant degree. These are pre-eminently licensing judgments for the licensing authority, of a kind which authorities are well-used to making.

ARGUMENTS OF THE LAP DANCING ASSOCIATION

18. The Lap Dancing Association has published certain arguments against tighter restriction, and it is right that I deal with them here.

 

Argument

Response

Lap dancing is entertainment, not sex encounter.

The fundamental nature of the transaction is that a man pays a woman to take her clothes off and place her sexual organs near his face. The notion that this is not part of the commercial sex industry is not seriously sustainable.

Performances are ancillary to alcohol

No customer believes that he goes into a lap dancing club primarily to drink. The clue is in the title.

Anyone can object to a lap dancing club

This is untrue. Under the Licensing Act 2003 objections from local people have to come from those living or working in the vicinity. "Vicinity" is usually taken by licensing authorities to mean 200 metres or less. There is no scope for a local resident to object to a lap dancing club on their local high street unless they happen to live or work within that radius.

Councils have sufficient powers to impose restrictions on premises licences.

This is simply untrue, as the councils who have taken on the lap dancing industry and lost will testify. The problem is that the Licensing Act 2003 does not provide sufficient tools for any control over the quantum, location or operating conditions of establishments, because the licensing objectives are not directed at the real concerns to which these premises give rise.

Lap dancing clubs are not sexist establishments because many are owned and run by women. Performers are self-employed so choose when, where and for whom to perform.

The viewing of young women as objects whose nudity can be procured for a sum of money is of course inherently sexist. But in any event this argument does not begin to address the real point, which is that communities are entitled to some choice as to the quantity and location of such establishments.

To licence premises as sex encounter establishments will add red tape.

"Red tape" is simply a derogatory synonym for a licence. There are many establishments that require more than one consent, e.g. casinos and bingo clubs with bars. This is no different. Should there be an issue regarding fees, the Secretary of State can issue Guidance that fees should be limited to cost recovery.

The industry will go underground.[6]

That is an argument against regulation of anything. If it does, it will be the duty of the enforcement authorities to prosecute. Furthermore, it is revealing that the Lap Dancing Association argues that if an attempt is made to regulate its members they will conduct their business criminally. This is an argument for more, not less, regulation.

Regulation will do nothing about prostitution and drugs.

The argument for greater regulation is not principally concerned with prostitution and drugs. The Chairman of the Lap Dance Association is reported as saying: "Like Object we are concerned about the practises of irresponsible operators and potential links with prostitution and drugs."[7] If prostitution and drugs are linked with lap dancing establishments, that again is an argument for greater regulation.

It would be sufficient to ensure that the introduction of adult entertainment is treated as a major variation of a premises licence under the Licensing Act 2003.

That does not address the problem, because the licensing objectives provide insufficient criteria for the control of the quantity, location and operating conditions of such premises.

An obligatory code of practice would suffice.

Even were such a code of practice to be introduced and observed, that could only control the operational practises of the clubs, not whether and where they should be permitted in particular local authority areas.

CONCLUSION

19. It seems to me that to bring lap dancing into the same category as sex cinemas and sex shops and to licence them as such is a modest and sensible response to the recent proliferation in such venues, enabling authorities to exercise greater control if they want to.

 

 

APPENDIX 1

PROPOSED AMENDMENTS TO THE LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1982

 

A Bill to extend the law regarding the licensing of sex establishments from London to the rest of England and Wales and for other purposes.

 

1. The provisions for the licensing of sex encounter establishments in London contained in the Local Government (Miscellaneous Provisions) Act 1982 shall apply to England and Wales.

2. In Schedule 2 paragraph 3A of the Local Government (Miscellaneous Provisions Act) 1982, sub-paragraphs (i) and (ii) shall cease to have effect.

3. Schedule 1 (which makes minor and consequential amendments) shall have effect.

 

Schedule 1

 

Local Government (Miscellaneous Provisions) Act 1982

 

1. In section 12, after the words "borough council" insert the words "in England and Wales."

2. In Schedule 2 paragraph 3A omit sub-paragraphs (i) and (ii).

3. In Schedule 2 paragraph 3A omit the notation "(iii)".



[1] LGMPA 1982, Sch 3 para 12.

[2] LGMPA 1982, Sch 3 para 27(3).

[3] LGMPA Sch 3 para 2.

[4] LGMPA Sch 3 para 3A.

[5] LGMPA Sch 3 para 3A.

[6] This claim was made by Simon Warr, President of Lap Dancing Association, reported in the Morning Advertiser of 22.4.08 and the Independent of 26.4.08.

[7] Morning Advertiser, ibid.