Memorandum submitted by Object
WHY LICENSING REFORMS ARE NEEDED FOR LAP DANCING
CLUBS
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 provices 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 (PCRB)
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 100-200 metres 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
one to three 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.
LAPDANCING ESTABLISHMENTS: LEGAL BRIEFING
ADVICE
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 (eg 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, eg 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"
(eg 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; and
(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 18 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, eg 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.
1
LGMPA 1982, Sch 3 para 12. Back
2
LGMPA 1982, Sch 3 para 27(3). Back
3
LGMPA Sch 3 para 2. Back
4
LGMPA Sch 3 para 3A. Back
5
LGMPA Sch 3 para 3A. Back
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. Back
7
Morning Advertiser, ibid. Back
| 
