Lapdancing in Court!

A very significant decision from the Court of Session this week in Brightcrew Ltd v. the City of Glasgow Licensing Board, on the subject of lap-dancing. Or more precisely, the extent to which such establishments can be regulated by alcohol Licensing Boards across the country.  Although the vires powers of a public body may not immediately set political hearts racing, it is important to understand this judgment in its context, and the uses to which Glasgow attempted - in the event unsuccessfully - to put its alcohol licensing powers. The Council's general view is that “lap-dancing is a form of sexual exploitation which degrades women and encourages their objectification by men.” While Glasgow's Licensing Board is an independent regulatory body, it is constituted by eight city councillors. Without attempting to distort their approach, essentially Glasgow City Council attempted to use its alcohol licensing powers to try to control - and exclude - lap-dancing clubs from the city.  In support of this approach, a non-statutory Code of Practice was promulgated, with extensive provisions with respect to adult entertainment in licensed premises. This document is not published, but is substantially spoken to in the Board's long Liquor Licensing Policy Statement. Section eleven of the statement narrates a number of strictures to obtain in licensed premises laying on adult entertainment, noting that:

"The Board believes that in premises where the sale of alcohol is combined with adult entertainment, which is designed to be sexually explicit and therefore, potentially, involves a higher degree of risk to both customers and performers than in some other types of licensed premises, it is entitled to regulate that particular activity by way of licence conditions ... in terms of the Licensing Objectives of Securing Public Safety and Improving Public Health."

By withholding alcohol licences, the Board clearly hoped that the proprietors of such clubs would become financially unsustainable - presumably lager-breathed men in a crumbled suits require sustained alcoholic refreshment to accompany gyrating female nudity - and so close their doors and clear their stages. The specific club at issue in the case was "Spearmint Rhino", situated on the city's Drury Street.  Glasgow's Licensing Board refused the licences on the 15th of May 2009. The Board's powers to grant or refuse "premises licences" for the sale of alcohol are governed by the Licensing (Scotland) Act 2005.  Section 23 of the Act sets down how such applications are to be determined, including grounds for refusal. Basically, if none of the grounds for refusal are present, the Board must grant the licence and if any grounds for refusal are present, they must reject the application. The statute does not afford the body any residual discretion to supplement the list of grounds, however, some of the standards they are directed to apply are clearly of a more discretionary character. These include a ground of refusal, where the Board...

"(c) that the Licensing Board considers that the granting of the application would be inconsistent with one or more of the licensing objectives" [2005 Act §23(5)(c)]

And...

(d) "... having regard to—

(i) the nature of the activities proposed to be carried on in the subject premises,

(ii) the location, character and condition of the premises, and

(iii) the persons likely to frequent the premises,

the Board considers that the premises are unsuitable for use for the sale of alcohol..." [2005 Act §23(5)(d)]

The relevant licensing objectives are set out in §4 of the Act...

The licensing objectives

(1) For the purposes of this Act, the licensing objectives are—
(a) preventing crime and disorder,
(b) securing public safety,
(c) preventing public nuisance,
(d) protecting and improving public health, and
(e) protecting children from harm.

In line with the claims made by their Licensing Policy Statement, the Board rejected Spearmint Rhino's licence application on the basis that they were protecting and improving public health and preventing crime and disorder. They also held that the premises were unsuitable for the sale of alcohol. Here, the Court of Session only had to decide on the first of these grounds for rejecting the club's application, the issue under §25(5)(d) having been resolved at the shrieval level. The matter was set before Lords Eassie, Clarke and Wheatley to determine.

The Board based its decision on Spearmint Rhino's application on breaches of its non-statutory Code of Practice, including risk assessments concerning (i) hazards faced by dancers in such establishments; (ii)  flyers distributed by the club, which must include "no exposure of breasts or genitalia", a condition which the Board believed the club had breached; (iii) drinks promotions; (iv) reported physical contact between dancers and "patrons" and (v) dancers shedding all of their clothes, contrary to the requirements set out in the Board's code. As an aside, an anthropologically curious detail. Apparently Edinburgh's "pubic triangle" is governed by different rules of propriety than Glasgow. Under this heading, a Glaswegian licensing official alleged that that they had spotted two dancers in the club who had "removed their lower garments to knee level thereby exposing the genital area". Lord Eassie primly narrates...

"It was explained to the Board at its meeting that the two ladies in question were engaged only for that evening; that they were told at a "briefing" to retain their bikini bottoms; but they were accustomed to different practice in Edinburgh, whence they came." [para 9]

There are some questions about whether particular instances complained of were evidenced or without foundation - we need not get into them. The Board contended that, taken together, these breaches of its non-statutory Code justified its refusal to grant Spearmint Rhino a liquor licence, under the licensing objectives set out in the 2005 Act.

For the club's proprietors, jaunty wig-wearer and Dean of the Faculty of Advocates, Richard Keen QC, argued that the Board's function was limited to the sale of alcohol and that...

"...the generality of the objectives described in the 2005 Act as licensing objectives - such as "protecting and improving public health" - did not give to a licensing board, properly exercising its function ... power to lay down conditions, however desirable those conditions might be seen, which were not linked to the selling of alcohol".

Ever one for a picturesque metaphor and telling comparison, Keen argued that on the Board's logic, it would be entitled to deny pubs licences for the sale of alcohol, if they refused to accompany every plate of pie and chips sold with a delightful and healthy salad, better to trim the waists of the nation and thereby "protect and improve public health". No so he contended. Regulating lap-dancing via alcohol licensing, analogous to mandatory cucumber-provision in hostelries, proceeds on a "misconception of the proper ambit and use" of the Board's powers. As Keen's opponent, Sarah Wolffe QC recognised, the Dean's approach was a "full frontal" attack on the powers and practice of the Glasgow Board. And that full frontal assault carried the day and persuaded the Court. Giving judgment, Lord Eassie held that...

"...while the [licensing] objectives so catalogued are couched in very general terms such as "preventing crime and disorder", it is important to note that those objectives are not, so to speak, "freestanding". They are qualified by the introductory reference to their being "licensing" objectives. Since the licensing with which they statute is concerned is the licensing of alcohol, it follows in our view that, in the context of section 23(5)(c) of the statute, inconsistency with a licensing objective is inconsistency flowing from permitting of the sale of alcohol on the premises in question. The fact that the objectives listed in section 4 of the 2005 Act are all desirable in a general sense does not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol." [para 26]

Basically, this means that the Glasgow Board's attempts to use its powers to grant alcohol licences creatively to regulate the activities of lap-dancing establishments in the city - has comprehensively miscarried and cannot continue. Despite past practice, the Court of Session has held that their code is, bluntly, irrelevant to the question of whether or not a premises licence ought to be granted to an applicant, whether or not their establishment includes adult entertainment. Instead, in each instance, the Board would have to demonstrate how an infraction of their non-statutory code actually relates to the sale of alcohol. Take the flyers. As Eassie notes in typically circumspect and circumlocutory judicial style...

"... while it may be that on a close examination of the offending flyer an observer might conclude that the artist had not plainly demonstrated the presence of a garment covering the breasts of the two ladies whom he depicted with the consequence that there was thus, in the view of the Board, a breach of their code of practice, it is not evident, and is not explained by the Board why that incident can properly be said to make the sale of alcohol at the premises inconsistent with a licensing objective." [para 28]

This decision will undoubtedly leave the Board and the rest of Glasgow City Council fuming, as it substantially narrows the powers they thought and purported to wield. While the Board may now encourage clubs like Spearmint Rhino to make provision for the sanitation of their employees, and encourage or deprecate some forms of adult "performance" - insofar as these strictures do not speak to the issue of alcohol - they are irrelevant to the issue of determining whether a liquor license is granted or withheld. Having hoped to use the threat of denial of a licence as the stick to regulate how lap dancing clubs comport themselves with respect to their employees and how their employees ought to conduct themselves with respect to their ogling public - the Board finds itself not just disarmed, but its regulatory stick comprehensively broken across the knees of the Court of Session by Keen's argument.