UK Law: Lap Dancing

Coventry Women's Voices asked Dr James Harrison (co-director of the Centre for Human Rights in Practice at the School of Law in the University of Warwick) about the legality of council bans on lap dancing.

Harrison wrote:

Sexual Entertainment Venues -- A rational decision that no venues should be granted licenses in a particular area will not breach human rights law

...

Local authorities must make some form of assessment of the character of the locality as the basis for any decision that nil is the appropriate number. However, as long as local authorities make some form of rational assessment of the character of the area this is highly unlikely (one could even go as far as to say almost impossible) to be subject to any kind of successful legal challenge. The courts have always given a great deal of discretion to public authorities in cases where they are exercising this kind of social control. Unlike in issues of fair trial or arbitrary detention, this is not an area where judges see themselves as particular experts, they therefore tend to defer to the greater knowledge and sensitivity of local decision-makers.

In the case of Belfast City Council v Miss Behavin' Ltd (Northern Ireland) the House of Lords found that there was no breach of Article 10 (freedom of expression) or Article 1, Protocol 1 (right to property) of the European Convention of Human Rights because Belfast City Council had failed to grant a licence for a sex shop on the basis that the appropriate number of sex shops in the relevant locality was nil.

The judges in the House of Lords found that Article 10 and Article 1 Protocol 1 were engaged but at a very low level -- Access to pornography was not seen by the judges as a very important issue that needed high levels of protection. This means that a local council will almost certainly be justified in restricting those rights as long as it makes its [nil policy] decision in a rational and reasonable way and in relation to each application it receives.

...Read the full article

The new lap dancing licensing regime comes into force on 6th April 2010. There are transitionary arrangements to begin with.

See Policing and Crime Act 2009 from opsi.gov.uk
See also Explanatory Notes from opsi.gov.uk

Part 2 of the Policing and Crime Act 2009 has sections

• Section 27 Regulation of lap dancing and other sexual entertainment venues etc 2.
• Schedule 3 Lap dancing and other sexual entertainment venues etc: transitional provision

These amend the Local Government (Miscellaneous Provisions) Act 1982.

The basic changes are that Sexual entertainment venues are now to be separately licensed from general bars.

Sexual Entertainment Venues are defined as having live performances including nudity that are intended as sexual stimulation. Events happening less than monthly are exempted

(1) In this Schedule sexual entertainment venue means any premises at which relevant entertainment is provided before a live audience for the financial gain of the organiser or the entertainer.

(2) In this paragraph relevant entertainment means—

(a) any live performance; or

(b) any live display of nudity;

which is of such a nature that, ignoring financial gain, it must reasonably be assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience (whether by verbal or other means).

(3) The following are not sexual entertainment venues for the purposes of this Schedule—

(a) sex cinemas and sex shops;

(b) premises at which the provision of relevant entertainment as mentioned in sub-paragraph (1) is such that, at the time in question and including any relevant entertainment which is being so provided at that time—

(i) there have not been more than eleven occasions on which relevant entertainment has been so provided which fall (wholly or partly) within the period of 12 months ending with that time;

(ii) no such occasion has lasted for more than 24 hours; and

(iii) no such occasion has begun within the period of one month beginning with the end of any previous occasion on which relevant entertainment has been so provided (whether or not that previous occasion falls within the 12 month period mentioned in sub-paragraph (i));

(c) premises specified or described in an order made by the relevant national authority.

Further definitions are included:

• audience includes an audience of one
   
• display of nudity means—

(a) in the case of a woman, exposure of her nipples, pubic area, genitals or anus; and

(b) in the case of a man, exposure of his pubic area, genitals or anus

Sexual Entertainment Venues are then liable to local authority licensing and of course fees. It is nominally optional for local authorities to adopt the new licensing regime.

In addition, councils have been given the arbitrary power to refuse licenses with the new justification:

that the number of sex establishments, or of sex establishments of a particular kind, in the relevant locality at the time the application is determined is equal to or exceeds the number which the authority consider is appropriate for that locality.

Also objectors are no longer restricted to those who just live or work near the proposed venue.

However, the new regime still does not take into account objections on moral grounds.