21 July 2011

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 2005Section 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.

11 comments :

  1. Fascinating stuff. I am no fan of lap dancing clubs but it seems that the way forward is to set up a different regulatory system for them. It seemed a bit of a long shot even if you support the objective.

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  2. Me neither, Caron. I find the idea of sitting in one signally appalling, for any number of reasons. Even given the dominance of the Murdochs and phone hacking in the press, I'm surprised that this story hasn't been taken up with more pepper. Given the scale of the Board's defeat on this, knocking flat the whole regulatory approach it adopted (and implicitly, by Glasgow City Council) - they must be decidedly unhappy with the Court's ruling. "Rats, foiled again!"

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  3. Why do wee frees never have sex standing up?

    Because it could lead to dancing.

    I know Glasgow Council are not wee frees, but what joyless people they and you are. I find lap dancing clubs a fun and harmless way to spend a lonely evening in a new city while travelling. I have quite a few friends who work in lap dancing clubs (no, I have not seen them there), and I met my wife in an establishment which was not actually such a club but shared a similar ethos.

    Sexuality is enjoyable. It always will be. Stop being such politically correct small-minded prim dullards.

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  4. It's not about being prim or prudish but there are valid concerns about the commercialisation of sex, links to organised crime etc.

    We do not live in the Victorian era any more - people can go on the internet and link up with others who share the same tastes and interests. Whatever you are into the chances are you will find it somewhere not too far away from your own doorstep or indeed in whatever town you may be visiting.

    But there obviously are issues when, as I said, sex is commercialised. There's a great deal of anxiety about this kind of thing now in Glasgow particularly with the issue of trafficking. People are very worried about it and a decision like this will only add to that.

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  5. If 'organised crime' was the problem in this instance, was it because the club in question had refused a donation to the Glasgow Council Benevolent Fund?

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  6. hector mcglashan22 July 2011 09:46

    Perhaps the matter could have been resolved, without recourse to expensive litigation, by allowing the punters to look at alcoholic drinks (for a fee, of course) but not to actually imbibe?

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  7. The decision is not surprising and probably correct but unfortunate. In 2004 I objected to an application to site a club on the flat beneath my then office and thus got some detailed knowledge of how these places operate. In the USA there are close links between the clubs and organised crime and prostitution and there were fears that this would spread here. I believe that Glasgow City Council lobbied for express powers to be included in what became the 2005 Act but those handling the consultation had apparently been hardened (no pun intended) by exposure to the pubic triangle.

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  8. Ha!

    Splendid idea Hector. I shall have to open up my own "beer leering" establishment, post haste!

    Ewan,

    Beyond the 2005 Act, I'm not terrifically au fait with the operating practices of these places, nor whether, as a generalisation, the industry in Scotland has any connections with criminality. I wouldn't be surprised if we see the 2005 Act revisited in some respect. It is fair to say that this decision up-ends certain assumptions about the breadth of licensing objectives, which I dare say aren't limited to Glasgow City Council and its Licensing Board.

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  9. Ewan: "In the USA there are close links between the clubs and organised crime and prostitution and there were fears that this would spread here."

    Such fears are nothing but ill-informed nonsense, perpetuated by puritanical idiots with ulterior motives. It's true that in the USA the dividing line between lap dancing clubs and brothels can be somewhat blurred at times, but this is not the case in the UK, where booths have CCTV and any request for "extras" will result in the bouncer showing you the door. Many people have stories of mates managing to "score" with a lap dancer, but far more people have "scored" with many more ladies in normal clubs. Any carnal relations between a lap dancer and a patron of her club will take place because she has genuinely found him charming, and not because money has been exchanged - in fact, the ladies in question are likely to be insulted by the suggestion.

    Indy: "There's a great deal of anxiety about this kind of thing now in Glasgow particularly with the issue of trafficking. People are very worried about it and a decision like this will only add to that."

    Trafficking is nowhere near as bad as the media like to make out. It's a heinous crime, but it is used as a stick with which to beat the sex industry with. The vast majority of women involved in the sex industry do so entirely of their own free will, and generally, if a "punter" gets even a hint that coercion is involved, he gets the hell out of there.

    Prostitution in itself is perfectly legal, but many sections of society wish it wasn't. As a result, they try to perpetuate this idea that sex trafficking is rife in order to try and get the police to clamp down on prostitution until it no longer exists. But it won't work, because as long men want sex and there are women out there willing to provide it as a service, then prostitution will exist. All that will happen is it will be pushed further and further underground, pushing it closer to the criminal world, leading to increasing dangers to the women who just want to make a living.

    The sooner society accepts that prostitution exists and starts thinking about the welfare of the women involved, the better. At the moment, it is illegal for two women to work from the same premises, but such practice actually makes things safer for the woman, as it means she has back up if something does go wrong.

    People think prostitution is all about junkies standing on street corners offering unprotected sex with dodgy characters for £20, because it's all she can do to get money for her next fix. This is very much the minority though, as most women in the industry are just women who love sex and have the nous to make (a LOT of) money from something they would otherwise be doing for free anyway. A bit like an artist who realises he can make money from selling paintings that he would be painting anyway.

    Glasgow City Council is engaged in a battle to wipe out prostitution, and has closed down all the massage parlours as a result. All this has done is force the women who would like to make money from their hobby to find other ways of providing their services. Edinburgh, on the other hand, are fairly tolerant of such practices, meaning the ladies in question have the benefit of working with experienced ladies, who can pass on tips for (particularly for dealing with troublesome clients) and offer the safety of numbers.

    As I say, the sooner society accepts that prostitution exists and starts thinking about the welfare of the women involved, the better. The war on sex is even more futile than the war on drugs.

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  10. Anonymous kind of sums up the problem here - the determination to view this issue through a moralistic lense, as though everyone who has concerns about the red light industry is a po faced prude who just needs to chill out.

    That is not the case. No-one is saying that the lap dancing clubs which currently exist are fronts for organised crime. But there is very strong evidence that the red light industry CAN be used as a front for organised crime - drug dealing, prostitution and trafficking.

    As for the comments about trafficking - that is a completely irresponsible point of view. There have been very few prosecutions in Scotland because the victims are too scared to give evidence, not because it isn't happening. Any police officer will tell you that.

    We may get a fuller picture of the scale of the problem when the current enquiry reports back but the anecdotal evidence, particularly in areas like Govanhill, is huge. I have seen with my own eyes teenaged Roma girls walking the streets but they simply will not report their abuse to the police.

    It may well be that there are women in the sex industry who are just making money from their hobby but that is not the point. They could continue to go on making money from their hobby even if there were no lap dancing clubs or saunas.

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  11. Indy - true, not everyone bases their concerns on moral issues. However, I suspect such people are very much in the minority, and the most vocal opponents - Harriet Harman, Julie Bindel etc - are most certainly moral crusaders who want to abolish the sex industry, rather than just abolish the dangers that do exist in it.

    No-one is saying that the lap dancing clubs which currently exist are fronts for organised crime. But there is very strong evidence that the red light industry CAN be used as a front for organised crime - drug dealing, prostitution and trafficking.

    My first comment here would be to point out, as I did before, that prostitution is not, in itself, a crime in the UK. Women are perfectly entitled to offer sex services for money, and such women even pay their taxes on these legally-gotten gains. The fact you include it amongst drug dealing and trafficking - which are crimes - is one of the sex industry's main problems, as many people think it is illegal. This isn't helped, of course, by the fact that several practices in the industry are illegal, most for no real good reason.

    I'm perhaps drifting off the original issue of lap dancing clubs here. As a some-time patron of such places (having realised they were far more pleasant places to end the night than sweaty, loud nightclubs with over-priced drink), I can say that I have never come across any drug dealing (something which I cannot say about nightclubs), and no evidence of trafficking. Well, not in the coerced sense at least, and this is the problem. It is quite common for women from Eastern Europe to come over to the UK for the weekend, make a nice wad of money dancing for men, and then return home to their family. One such woman explained it to me in great detail. Such women are included in "trafficked" statistics, despite the absence of coercion. Indeed, escorts who travel the country on tours are technically being trafficked, despite doing it of their own accord.

    I'm not suggesting for a moment that trafficking doesn't go on, and that the low rate of convictions are due to genuinely trafficked girls being too scared to give evidence. What I am suggesting, however, is that certain parties with a vested interest make trafficking out to be a major problem in the sex industry, when the reality is the vast, vast majority of women in the industry are there completely of their own free will. In fact, probably with far more free will than many of us in the 9-5 rat race. But I'm perhaps in the minority in thinking that prostitution of the mind is far worse than prostitution of the body.

    As for anecdotal evidence, it has a habit of having an absence of input from women who have been more than willing participants in the industry for years, who would have lots of good things to say about it.

    It may well be that there are women in the sex industry who are just making money from their hobby but that is not the point. They could continue to go on making money from their hobby even if there were no lap dancing clubs or saunas.

    Well, my point is actually that MOST women in the sex industry are just making money from a hobby. But without lap dancing clubs, women who are willing to dance naked but not actually indulge in sexual services would not be able to make money (leaving many female students with nowhere to go). As for saunas, as I said, they are a valuable source of information to those new to the industry, who can pick up a wealth of tips and good practices from experienced women. They also offer a safer working environment than independent flats, which you would think would be the main concern for those who claim to be feminists.

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