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Chapter 2. Reasons for change

The Better Regulations Task Force, now the Better Regulation Commission, in its March 2005 report Regulation - Less is More noted its serious concern that, despite the UK being placed among the world's leaders in better regulation and even after eight years of intense BRTF activity, the volume, complexity and costs of regulation continued to grow. It found too few examples of better regulation in principle leading to less costly regulation in practice. It noted that regulation probably costs the UK around £100 billion each year and, of this, some £30 - £40 billion is administrative cost - bureaucracy, paperwork and red tape. Those costs have to be paid each year by business, consumers and citizens.

The AEWG's starting point for our recommendations on regulation was whether there were sound and evidence based reasons for adding to the regulatory burdens already in place. We also thought that we had a duty to take into account the costs that our recommendations would, if accepted, impose on those being regulated and on local authorities and council tax payers. As the BRTF says, people may rightly vote for cleaner air, longer holidays or safer travel but no-one votes for red tape or excessive monitoring, inspection and form filling.

We took into account the BRTF's Five Principles of Good Regulation

Proportionality - Regulators should only intervene when necessary. Remedies should be appropriate to the risk posed, and costs identified and minimised.

• Policy solutions must be proportionate to the perceived problem or risk and justify the compliance costs imposed - don't use a sledgehammer to crack a nut.
• All the options for achieving policy objectives must be considered - not just prescriptive regulation. Alternatives may be more effective and cheaper to apply
• "Think small first". Regulation can have a disproportionate impact on small businesses, which account for 99.8% of UK businesses.
• EC Directives should be transposed without gold plating.
• Enforcement regimes should be proportionate to the risk posed.
• Enforcers should consider an educational, rather than a punitive approach where possible.

Accountability - Regulators must be able to justify decisions and be subject to public scrutiny.

• Proposals should be published and all those affected consulted before decisions are taken.
• Regulators should clearly explain how and why final decisions have been reached.
• Regulators and enforcers should establish clear standards and criteria against which they can be judged.
• There should be well-publicised, accessible, fair and effective complaints and appeals procedures.
• Regulators and enforcers should have clear lines of accountability to Ministers, Parliaments and the public.

Consistency - Government rules and standards must be joined up and implemented fairly.

• Regulators should be consistent with each other, and work together in a joined-up way.
• New regulations should take account of other existing or proposed regulations, whether of domestic, EU or international origin.
• Regulation should be predictable in order to give stability and certainty to those being regulated.
• Enforcement agencies should apply regulations consistently across the country.

Transparency - Regulators should be open, and keep regulations simple and user-friendly.

• Policy objectives, including the need for regulation, should be clearly defined and effectively communicated to all interested parties.
• Effective consultation must take place before proposals are developed, to ensure that stakeholders' views and expertise are taken into account.
• Stakeholders should be given at least 12 weeks, and sufficient information, to respond to consultation documents.
• Regulations should be clear and simple, and guidance, in plain language, should be issued 12 weeks before the regulations take effect.
• Those being regulated should be made aware of their obligations, with law and best practice clearly distinguished.
• Those being regulated should be given the time and support to comply. It may be helpful to supply examples of methods of compliance.
• The consequences of non-compliance should be made clear.

Targeting - Regulation should be focused on the problem and minimise side effects.

• Regulations should focus on the problem and avoid a scattergun approach.
• Where appropriate, regulators should adopt a "goalsbased" approach, with enforcers and those being regulated given flexibility in deciding how to meet clear, unambiguous targets.
• Guidance and support should be adapted to the needs of different groups.
• Enforcers should focus primarily on those whose activities give rise to the most serious risks.
• Regulations should be systematically reviewed to test whether they are still necessary and effective. If not, they should be modified or eliminated.

Taking all of those cautionary notes into account, the AEWG did find three compelling reasons for additional regulation.

2.1 Concerns regarding exploitation

Exploitation

Although the term 'adult entertainment' is understood by most people as referring to some form of sexual activity, there is no common agreement as to the distinction between sexually explicit and sexually exploitative activity.

There are activities which are sexually explicit but which are considered acceptable for adults, including for example, comedy with strong sexual language, and nudity in film or theatre. Such activities may fall under existing regulation, such as obscenity laws, or film classification. There are other forms of activity which are sexually explicit and which are regarded by many as unacceptable, because they are exploitative.

In order to effectively address sexual exploitation, it is essential to describe clearly the difference between an activity that is sexually explicit and an activity that is sexually exploitative. If this distinction is not agreed, the same legislation and regulation needs to be applied to both acceptable and unacceptable activity.

A suggested distinction from Professor Donna Hughes, ² is that sexual activity becomes sexual exploitation if it breaches a person's human right to dignity, equality, respect, and physical and mental wellbeing. It becomes commercial sexual exploitation when another person, or group of people, achieves gain or advancement through the activity.

In line with this definition, commercial sexual exploitation is a multi-billion dollar business which encompasses pornography, internet sex chat rooms, sex phone lines, escort services, prostitution, trafficking for prostitution, peep shows, lap dancing, pole dancing, table dancing and stripping. All these activities are gendered, in that, overwhelmingly, it is women who are paid, and men who pay. The fact that there are some male strippers, or that women may sometimes pimp other women in prostitution, does not take away from this gendered nature.

Once the idea of commercial sexual exploitation exists there can be pressure on vulnerable women to become involved. The AEWG heard evidence that once involved in lap dancing and related activities, there is pressure on women to take part in further sexual activity.

"There is a strong implication that women in the industry are vulnerable. There are several negative impacts on performers, for instance power relationships are often formed whereby club owners make strong and explicit demands on performers to the point where they feel they have no choice but to do as they are told. For instance, potential female performers are 'employed' or hired on a certain understanding that they will be paid for dancing for customers, but it is often a different story once these women are 'in the door'. Club owners are likely to change the goal posts of the working conditions, whereby more is expected and even demanded of performers, such as being 'asked' to provide additional (sexual) services. Performers are more at risk of manipulation, as well as negative sexual health implications.

Representatives of the NHS Sandyford Initiative have found that women working in this industry are very defensive of their position - claiming things like: "I work there but don't have sex with the clients." This infers that women working in this environment expect the general public to assume that sex IS on offer in this environment. This kind of reaction implies and emphasises a social stigma, which is attached to working in this type of industry, since in general it does not look good to others, as it is not quite socially acceptable. There is also the stigma performers feel when thinking about other jobs of 'who will employ me? What if people think I am a prostitute?' It is certainly a view that performers who partake in adult entertainment activities may move onto other more explicit sexual services."(Sandyford Initiative Interview see Annex 6 (6.7))

Women involved in commercial sexual exploitation report adverse effects on their mental wellbeing. ³

It is acknowledged by support services and research that many women need to dissociate in order to 'perform', and they do so through the use of drugs and alcohol, and/or by 'splitting' themselves off mentally. This is damaging to women in the long term. ⁴

Scottish Women Against Pornography feel that adult entertainment ruins women's lives and that research showed that a conservative estimate of 60% of women interviewed who were involved in the sex industry were victims of sexual abuse. They feel that the pornography industry, prostitution/lap dancing/stripping does not ultimately exist because of women's choices. Rather it exists because men as a class, demand there be a sub-class of women and children and transgender people but mostly women, who are available for their unconditional sexual service. ( Scottish Women Against Pornography Interview see Annex 6 (6.2))

A number of organisations think that such activities have a negative impact on the position of all women through the objectification of women's bodies, irrespective of whether individual women claim success or empowerment from the activity. ⁵ These activities represent a commodification of sexuality and intimacy, and sexualise male dominance and the denigration of women. The fact that there is a demand for sexually exploitative activities does not make these activities legitimate: for example there is also a demand for child pornography.

The AEWG noted that activities that are regarded as sexually exploitative are incompatible with the Scottish Executive's work on gender equality and violence against women, the latter perhaps the most sensitive indicator of women's inequality within society. Acceptance of these activities serves to reinforce gender inequality by facilitating and normalising men's violence against women. Similarly, there is an inherent contradiction between sanctioning such activities and adhering to a position that supports the principles of equality and human rights.

This wider view on exploitation helped the AEWG to find out what the general public think:

• 61% of respondents to the Public Attitudes Survey think some or all of the 6 groups (women in general, female strippers, local residents, customers, male strippers, men in general) are exploited by activities such as lap dancing, pole dancing, male or female strippers. (Public Attitudes Survey see Annex 3)
• 41% males and 46% females think women in general are exploited. (Public Attitudes Survey see Annex 3)
• 37% males and 43% females think female strippers are exploited. (Public Attitudes Survey see Annex 3)
• 37% males and 31% females think customers are exploited. (Public Attitudes Survey see Annex 3)
• 33 of the 52 respondents (63%) to the Public Consultation thought that the impact on the performers was negative and examples of the impacts given were as follows - sex objects, not worthy of respect, degraded, lack of self-esteem, emotional, psychological and physical effects, feeling cheap, demeaned, dehumanised, exploited. It was also felt that these performers were open to and subject to verbal, physical, mental and sexual abuse and that there was an increased threat of rape, sexual assault and harassment. (Consultation Analysis see Annex 4)
• "As with the other cities it was felt necessary by Edinburgh Council and the industry to tighten up other regulations, for example changing facilities for workers, CCTV and declaration of AE activity. This would ensure a well-controlled and socially acceptable industry. However, not all performers shared this point of view and some stated they would prefer a less well-regulated industry that gave them the potential for higher earnings. " (Economic Impact Report page 55 see Annex 5)
• The general consensus amongst women aged 18-30 and some under 18s at the YWCA is that it is felt to be exploitative to performers. ( YWCA Interview see Annex 6 (6.5))
• SWAP believe young men today believe that they have a right to the access of young women's bodies. SWAP feel that we are all now the audience which is proof of desensitisation. If you live in a city you have no choice but to view women as a sexual commodity. ( SWAP interview see Annex 6 (6.2))

The performer's perspective

Personal identity

Much of the literature relating to the performers in adult entertainment venues comprises of qualitative explorations of their experiences, specifically how they manage their 'identity' or cope with the stigma involved in such work.

One article explores women's pathways into stripping through an examination of their backgrounds (Sweet and Tewksbury 2000) ⁶. These included: being sexually mature at an early age; having early independence from or at home; average educational attainment; having a background in sports or entertainment; and 'ugly duckling syndrome'. Two-thirds of the sample indicated some experience of sexual abuse in their upbringing. They conclude by suggesting that the common link between most of these factors is their relationship to women's self-esteem and confidence; that low confidence and self-esteem are part of the pathway to stripping.

Other studies focus more on the direct impetus to becoming a stripper and highlight factors such as economic need; having no better paying alternative; personal social networks providing the opportunity; and being intoxicated (Thompson and Harred, 1992) ⁷.

Bell et al. (1998) ⁸ focus on the issue of the performers' exploitation. From interviews with 13 current and 17 former topless performers, nearly half highlighted the negative effect of the stigma of topless dancing, including stereotyping, limited ability to move career and an internalisation of stigma. In relation to exploitation, whilst some felt that performers exploited customers, most considered the relationship between performers and customers to be mutually exploitative. None of the performers felt they were being exploited in the context of their work (Bell et al. 1998:361).

Thompson and Harred (1992) explore how performers manage the stigma of being topless performers. They identify two strategies: 'dividing the social world', that is only allowing some to know they participate in topless dancing whilst hiding it from others; and 'neutralisation', that is, condemning those that condemn them, denying any harm caused, and justifying their participation due to higher loyalties such as supporting a family. In a follow-up study ten years later, Thompson et al. (2003) ⁹ concluded that topless dancing is still a highly stigmatised occupation. Whilst this study also concluded the strategies for managing stigma remained the same, they in addition identified 'cognitive and emotive dissonance' strategies used by performers to cope with the emotional strain of the distance between their public and private selves.

Whilst much of the research draws a distinction between topless or lap dancing and the sale of sex, many highlight the way performances suggest sexual availability. Many of the performers interviewed were clear that they are not available for sexual intercourse, although they may know others who are. A study by Wesely (2003) ¹⁰ examines the ways in which performers' feelings about topless dancing and the boundaries they set change over time. She concluded that when the primary motivation is money, over time the desire to make more money leads to previously firm boundaries of acceptable activities becoming more fluid.

Pay and conditions

In their responses to the AEWG's own consultation and interviews, performers were more concerned by financial exploitation.

Performers - are generally self-employed and earn money from private dances. Charges are, typically, £5 for a topless dance at table and £10 for a full strip.

Operators - drinks tend to be standard club prices and operators make their money in two ways;

• Door charges, from nil to £5 or £10 depending on the day of the week and the time of entry.
• Charges to performers, firstly a fixed fee for night and then by taking a percentage of performers' direct earnings from the customers and also by fines for breaches of house rules. The research suggested that the industry commission from performers was typically 40% . ¹¹

One performer explained that

• Performers are asked to register as self-employed, and that was a contentious issue. She noted that the performer as a 'self-employed contractor' has no 'working rights'. Usually contracts are not issued, unless the performer is working through an agent, who will ensure that some kind of 'rights' are in place for both the performer and the club management. This normally only occurs when the club is based abroad. Performers are usually left open to exploitation by club management: they are expected to work for a club, usually paying them either a set fee or percentage of their earnings, regardless of the condition of the facilities and more importantly numbers of 'paying' customers. Commission taken by club owners can be as much as 50% of performers' earnings on a shift. While management will claim that they supply the premises and security arrangements that permit performers to ply their trade safely, they do not claim to present them with customers willing to pay for dances. As dances are the sole form of income for the performer, it is not unusual for a self-employed contractor to finish a shift in 'debt' to the club, as there have been no customers willing to pay for a dance. Furthermore, performers are asked to contribute to the general entertainment - management claim it is advertising for the performer - by way of nude/semi-nude stage/pole shows. No payment for this is received by performers, and often it will be detrimental to a performer's potential earnings as customers will have 'seen it all' so are unwilling to purchase a dance. At present there is only one club in Scotland that does not ask its performers to pay commission - this establishment functions well and demonstrates that 'commission' is not necessarily an essential part of a functioning club. These issues raise general concerns relating to working conditions, employment rights, taxation and exploitation of performers. (Anonymous response to consultation)
• Exploitation, performers feel, tends to come from commission related issues and management demands rather than from customers. (Anonymous response to consultation)
• The financial arrangements used by the clubs were perceived to be unfair and divisive. Clubs charged very high commission and many clubs also employed a system that fines the performers, typically from £10 to £50, for a range of activities. Performers can be fined for 'dirty dancing', being too drunk, being too long in the bathroom, lateness, talking to other performers too long and 'no shows'. One performer described how the type of 'finable' activities changed all the time. Some performers thought that clubs used fining as a convenient lever to reduce the amount of money the clubs pay the performers. One performer also said that her tips were also often taken by the management. (Performer Interviews see Annex 7)
• Performers were concerned that high commissions and the use of fines is increasing pressure on the performers to dance for longer than they may otherwise want to, just to pay back the club. Some said that it made the performers very competitive with each other, and made the performers more frustrated with customers who refuse a private dance. When asked what they would do to improve dancing, the need to reduce the amount of commission and stop the fining system was mentioned most frequently. (Performer Interviews see Annex 7)
• All of the performers interviewed said that they felt club owners treated them as the least important on their list of priorities and two complained that they had been treated unfairly by the club owners. One stated, 'We are lowest down the pecking order - it's management, bar staff, bouncers and then performers'. One performer said that management had the attitude that 'if you don't like it - you know where the door is'. Another said that 'general verbal abuse' was common between performers and management. (Performer Interviews see Annex 7)
• Performers explained that levels of violence depended on the club and their experience of violence and harassment by management varied considerably. Three of the five performers had never experienced violence of any kind. In contrast, one said that she was being sexually harassed by the management and another described an incident where she had been 'attacked verbally and physically' by management in a previous club, and that she had witnessed 'others being attacked'. Asked whether they had experienced violence outside work, three said that they had no experience of violence outside work. However, one indicated that she had been stalked and had to move home to avoid further harassment. Another said that she exercises caution to 'avoid hangers-on outside the club'. Three of the performers identified 'bad clubs' which give other good clubs a bad name. (Performer Interviews see Annex 7)

The Customers

In the AEWG commissioned research, all establishments and performers drew a clear distinction between weekday and weekend customers. Weekday customers were a mix of travelling businessmen and locals, and weekends were a mix of locals and visiting stag parties. On average, business customers spend the most per person, although overall expenditure is highest at the weekend due to the sheer volume of customers. ¹²

In her ethnographic study of 30 regular male customers of strip clubs in a Southern US town, Frank (2003) ¹³ found that their primary motivation for visiting was not for 'sexual release', but to 'relax'. Regular customers knew both that sex would not be available at the strip club and where to go if that was what they wanted. This contrasts with Bindel (2004) ¹⁴ who found that approximately half of customers interviewed in Glasgow had gone to a lap dancing venue looking for sex and a quarter claimed they had had sex on the premises. Frank (2003) identified four categories of 'relaxation': an escape from work and home; elements of excitement and risk within safe boundaries; an opportunity for personal and sexual acceptance by women; and the lack of pressure to physically perform in a sexualised encounter.

A recent small-scale qualitative piece of research conducted in the UK identified three types of customer at adult entertainment clubs: 'the lads', 'the philanthropist', and 'the tourist' (Booker and Clarke, 2005) ¹⁵. 'The lads' visit clubs approximately once a month as part of a group of friends, and see it as 'a laugh', a normal part of male heterosexual activity. The 'philanthropist' is a regular visitor who highlights relationships with performers over sexual gratification and is aware of their need to earn money. 'The tourist' only visits such clubs when abroad. It should be noted that this research is based on a limited sample of five customers and one club manager.

However, what both pieces identify is the relationship between the motivations for attending such clubs and idealised notions of heterosexual masculinity. Part of the enjoyment of such activity appears to be the experience of power, control and a boost to the ego without the responsibility of the 'fantasy' becoming 'reality'.

Referring to the document ' How to Conduct Yourself at FOR YOUR EYES ONLY' there is evidence to suggest that customers' attitudes to women are shaped by what the club intends its performers to display. The document outlines a section on FANTASY which states:

" When you are performing on the stage during a normal set, try and create a fantasy. You could try the "girl next door" look. The girl next door look is that of a bank clerk or possibly an airline stewardess or business woman. You find her wherever you go, but would not expect to see her at the local adult entertainment club, which begins to create a FANTASY. It is by achieving this look and then undressing that a FANTASY is created. Your clothing is of the utmost importance when creating a FANTASY! One would never expect the bank clerk or receptionist to take off her clothes, especially not in a sexy or seductive manner."(For Your Eyes Only Code of Conduct see Annex 10)

Performers commented on customers' behaviour

• All performers said that the majority of customers treated them 'fairly' although all said that a small number could be rude, offensive and treat them like a 'commodity'. All performers said they receive a mixture of compliments and insults from customers. All noted that the biggest problem were often 'new' customers who did not understand the strict rules of the club. Asked which aspects of the job they disliked the most, alcohol induced rudeness from clients was mentioned most frequently, along with the fines and commission. (Performer Interviews see Annex 7)

In some instances performers reported exploiting customers' naivety in relation to charging patterns in order to make money. ¹⁶

The AEWG also noted from its own visits that an operator had reduced the timing of a private dance from 3 minutes in order to increase the probability that the customer would want to buy a second dance.

Desensitisation

The AEWG wanted to understand the wider social impact of the adult entertainment industry. Of particular interest has been the possible impact that viewing adult entertainment performances may have on social attitudes towards women. We could not find literature relating directly to this topic and commissioning such research would have been beyond the timeframe of this group. However, a significant literature does exist which explores the issue of desensitisation in relation to pornography and moving images. Research has sought to determine whether there is a causal link between pornography and violence against women, but the findings are contradictory. For example, some research concludes that exposure to pornography makes men more likely to accept rape myths (Donnerstein and Linz 1987 ¹⁷; Malamuth et al., 1979) ¹⁸. Mullin and Linz (1995) ¹⁹ concluded from their research on the effects of repeated exposure to sexually violent films that participants were significantly desensitised in their views towards domestic violence victims, and whilst resensitisation can occur, long term exposure to such images may cause men to become more easily desensitised (Mullin and Linz, 1995). In contrast, other studies have shown that sex offenders tend to have had less exposure to pornography than other men (Goldstein and Kant, 1973) ²⁰.

2.2 Inconsistencies and gaps surrounding the current regulation of the industry

Believing that rules and standards must be joined up and implemented fairly, the AEWG found gaps and inconsistencies in current regulatory provision.

The current licensing régime.

Current powers and obligations to regulate adult entertainment are contained in the Civic Government (Scotland) Act 1982; the Licensing (Scotland) Act 1976; and the Cinemas Act 1985. The Licensing (Scotland) Act 2005 contains further additional provisions.

The Civic Government (Scotland) Act 1982

This Act provides local authorities with certain discretionary powers to license places of public entertainment. It does not, however, create a mandatory licensing regime for these places.

Public Entertainment Licences

In terms of Section 41 of the 1982 Act a licence is required for the use of premises or a place of public entertainment. A "place of public entertainment" is defined as "any place where, on payment of money or money's worth, members of the public are admitted or may use any facilities for the purposes of entertainment or recreation" but does not include licensed premises within the meaning of the Licensing (Scotland) Act 1976 in which public entertainment is being provided during the permitted hours within the meaning of that Act. Thus, if premises providing adult entertainment already hold a liquor licence under the 1976 Act, there is no requirement for a separate licence under Section 41 of the 1982 Act provided the entertainment occurs during the permitted hours pertaining to the liquor licence.

The provisions contained in Section 41 of the 1982 Act are part of a discretionary licensing regime and only apply to a Local Authority area if the Local Authority has passed a resolution in terms of Section 9 of the 1982 Act specifying the places of entertainment and classes thereof which fall to be licensed. Thus, it is possible that the activities and places which require public entertainment licences could vary across all thirty-two Local Authority areas. The lists of places of public entertainment requiring licences for the cities of Aberdeen, Dundee, Edinburgh and Glasgow are as undernoted:-

If the category of public entertainment is not included in the resolution passed by a Local Authority and is not otherwise licensed under the Licensing (Scotland) Act 1976 it is not subject to any current regulation. If the type of premises and class of activity is not clearly specified in the resolution it may also escape regulation. The Courts have not been supportive of general categories, reflecting the following provision in SDD Circular 6/1983 which accompanied the coming into force of the 1982 Act: - "In other words, a general resolution to license all places of public entertainment would be involved. Authorities must instead specify all classes". Therefore, if authorities wish to regulate activities such as lap dancing and places such as saunas, massage parlours and sun tanning centres these will require to be clearly defined in their resolutions.

Other premises which are separately regulated in terms of Schedule 2 to the 1982 Act and which may include adult entertainment are sex shops. In terms of Paragraph 4 of the Schedule, no person may use any premises, vehicle, vessel or stall as a sex shop without a licence to do so from the Local Authority. A "sex shop" is defined as "any premises, vehicle, vessel or stall used for a business which consists to a significant degree of selling, hiring, exchanging, lending, display or demonstrating sex articles". "Sex articles" are in turn defined as "anything intended for use in connection with, or for the purpose of stimulating or encouraging ...... sexual activity ...... or acts of force or restraint which are associated with sexual activity".

The Schedule lists at Paragraph 2(4) additional types of material to which it is envisaged this will apply. This covers "any article containing or embodying matter to be read or looked at" ( e.g. books, magazines, posters, pictures, etc.) and any recordings of vision or sound.

Although the definition of "sex shop" is fairly wide and is not restricted to traditional "shop" premises, it is unlikely that this would encompass most of the types of premises providing adult entertainment, although there may be certain adult entertainment venues which would fall within the "display or demonstration of sex articles" part of the definition, provided this formed a "significant degree" of the business. Whilst the licensing of sex shops is mandatory it is still a matter for each Local Authority to interpret the words which consists to a significant degree, hence a national chain of sex shops may require a licence in one area but not in another.

The Licensing (Scotland) Act 1976

This Act provides for a mandatory licensing regime for any premises selling alcoholic liquor. Licensing Boards regulate the licensing activities under the 1976 Act. The type of licence granted is dependent on the activities and facilities on offer but where entertainment is being provided an entertainment licence, public house or hotel licence are most likely.

An Entertainment Licence is defined in Schedule 1 of the 1976 Act as:-

"a licence granted in respect of premises therein, being places of public entertainment such as cinemas, theatres, dance halls and proprietary clubs, which authorises the holder thereof to sell by retail or supply alcoholic liquor to persons frequenting the premises for consumption on the premises as an ancillary to the entertainment provided, subject to such conditions as the licensing board may determine to ensure that such sale or supply is ancillary to the entertainment provided".

This is the type of licence most frequently granted for premises providing adult entertainment such as lap and pole dancing.

Type of licence currently held by adult entertainment venues in each Local Authority: Entertainment Licence or Liquor Licence (Public House Licence)

The remaining 16 local authorities did not provide details.

Unlike the position with licences for hotels and public houses, Licensing Boards have a limited power to attach conditions to Entertainment Licences to seek to ensure that the provision of alcohol is genuinely ancillary to the entertainment. If Boards have issues with the type of entertainment in these premises the only real option is to refuse the Licence on the grounds that the premises are not suitable for the sale of alcohol having regard to the nature and extent of the proposed use and the persons likely to resort to the premises, or that the use of the premises for the sale of alcohol is likely to cause undue public nuisance or a threat to public order or safety. In the case of Risky Business v City of Glasgow Licensing Board 2000 SLT 923 the Court found that the Licensing Board had gone too far in relying on local knowledge to establish that the sale of alcohol in a topless dancing club would lead to sexual assaults and disorder.

Public House and Hotel licences authorise the sale of alcohol and whilst the holders of these licences may also provide adult entertainment in the premises, no consent or permission is required and Licensing Boards cannot attach conditions to these licences. The provision of adult entertainment in these premises is, therefore, unregulated although the fitness of a licensee to hold a licence may be questioned by a Licensing Board if there is any misconduct arising from adult entertainment events within the premises.

Byelaws

Section 38 of the 1976 Act provides Licensing Boards with the power to make Byelaws inter alia "for the setting out of conditions which may be attached to licences for the improvement of standards of and conduct in licensed premises". Byelaws are not generally considered a reliable or appropriate method of regulating adult entertainment in licensed premises following on the decision in Applegate Inns Ltd. V. North Lanarkshire Licensing Board [1997] 7 S.L.L.P. 10. Whilst this case related to the use of Byelaws to regulate the provision of musical entertainment in licensed premises, in finding the use of the Byelaw condition ultra vires it has effectively limited the use of the Byelaw making power by Boards since it is considered susceptible to challenge.

The Licensing (Scotland) Act 2005

The Licensing (Scotland) Act 2005 Act makes provision for the imposition of conditions on licences both at a national and local level and this may permit greater regulation of adult entertainment in liquor licensed premises. Schedule 3 lists a set of mandatory conditions with which premises licence holders must comply. These conditions are intended to ensure a nationally consistent approach on those matters which are central to the delivery of the policy underlying the Act, such as training and irresponsible drinks promotions.

Section 27(3) of the Act enables Ministers to prescribe discretionary conditions which Boards may draw on as required within their locality. This allows Ministers to prescribe a 'pool' of conditions that Boards must have regard to. This power allows Ministers to prescribe and modify conditions that become desirable over time once the new system has bedded in or on advice from the National Licensing Forum. It is very likely, as new practices develop within the trade or as new public order issues arise, there may be need to add additional licence conditions. The AEWG noted that this approach is helpful, and in line with its aim to have a coherent, but locally responsive, regulatory régime.

Summary of the Limitations and Gaps in Current Legislation and Regulation

From the foregoing it can be seen that adult entertainment may currently be provided quite legitimately in both unlicensed and licensed premises without being subject to any regulation or control. It may also take place in premises which are subject to the licensing provisions contained in the Civic Government (Scotland) Act 1982 or the Licensing (Scotland) Act 1976, albeit there are also gaps and limitations in these provisions.

Premises where there is little or no control

Adult entertainment may take place without any control in a number of different situations. Provided alcohol is not being supplied, if the category of public entertainment is not included in a resolution passed by a Local Authority in terms of Section 9 of the Civic Government (Scotland) Act 1982 then no licence is required. If the category of public entertainment is not clearly specified in the resolution then the premises may also escape the need for a licence under the 1982 Act.

Where alcohol is being provided a licence is necessary under the Licensing (Scotland) Act 1976. The primary purpose of the 1976 Act, however, is to regulate the sale and supply of alcohol in different types of premises rather than the other activities taking place in these premises. If the adult entertainment takes place in any premises licensed under that Act (other than for entertainment), e.g. public houses, hotels, restaurants, then there is no control over the adult entertainment. This is because no permission is required for the entertainment and the 1976 Act does not permit Licensing Boards to attach conditions to any licence other than an entertainment licence.

The only measure of control in any of these premises arises in the form of a penalty where a proprietor may have a licence removed after being found to be not fit and proper and/or where the conduct in the premises breaches the laws against obscenity or indecency, or indeed any breach of the criminal law.

The AEWG was also told that adult entertainment is often hired on an ad hoc basis and takes place on premises that may not have a specific licence. The occasional nature of this type of activity makes it especially hard to regulate.

"Having spoken with what the Central Scotland Rape Crisis and Sexual Abuse Centre ( CSRCC) class as survivors, CSRCC is aware that forced or consensual, legal or illegal, lap dancing, strip shows (in all contexts), shows of sexual acts, heterosexual or homosexual, involving one or more men, women or children and prostitution (of adults and children) occur in licensed premises, within people's homes and in other secret locations in towns, cities and rural areas." ( CSRCC Interview see Annex 6 (6.1))

Premises which are subject to some control

Where premises are licensed to provide public entertainment in terms of Section 41 of the 1982 Act a Local Authority may attach conditions which inter alia restrict the use of the premises to a specified kind of entertainment. Thus there appears to be control exercisable in premises subject to this licence. However, if the conditions attached to the licence are not sufficiently clear and unambiguous they may be susceptible to differing interpretations and Court challenges, e.g. conditions may need to specify the exact nature and type of dancing permitted and prohibited or the degree of nudity prohibited.

Premises which hold an entertainment licence under the 1976 Act are also regulated although the provisions of Section 101 which allows the attaching of conditions to the licence are clearly focused on regulating the sale of alcohol as opposed to the type of entertainment. Section 101(2) of the 1976 Act provides "A licensing board, when granting an entertainment licence, may attach conditions to the licence, in order to secure that the sale or supply of alcoholic liquor is ancillary to the entertainment". Any condition designed to control the type of entertainment is likely to be found to be ultra vires. Licensing Boards must consider what entertainment is to be provided in order to ensure that the alcohol is provided as ancillary but in this regard it is the scale and quantity rather than the type of entertainment which should be addressed. As the Risky Business case demonstrates, it is difficult to refuse the licence outright.

The AEWG noted particular concerns that it had become clear to the City of Edinburgh Council that without the necessary powers to control the growth of adult entertainment venues in their city, they are unable to respond adequately to the concerns of communities most affected. Of the 6 establishments in the Tollcross area, only 1 is a licensed club (Bottoms Up), which can be properly controlled by the Licensing Board. The area has a great many public houses, situated within easy walking distance of each other and there is growing concern that more of them will convert to unregulated 'lap dancing' establishments, without any local authority control. There is evidence that the Tollcross community is keen to see Local Authorities being awarded the powers necessary, through further legislation, if required.

Adult entertainment provided in vehicles

Adult Entertainment activities such as lap dancing and striptease by both male and female performers does take place in vehicles. Operators advertise on the internet the provision of AE in vehicles such as stretched limousines.

Vehicles that carry more than 8 passengers are regulated by the Vehicle and Operator Services Agency ( VOSA). If the vehicles carry 8 or less passengers they can be licensed as Private Hire Cars, in terms of the Civic Government (Scotland) Act 1982. The drivers of these vehicles could also be licensed by the relevant local authority. With few exceptions, these vehicles and their drivers are not currently licensed by all local authorities in Scotland, though this situation is currently being addressed.

Under the Licensing (Scotland) Act 1976, vehicles cannot be licensed to sell alcohol, however there is provision, in terms of section 118 of the Licensing (Scotland) Act 2005, for vehicles to be authorised to sell alcohol, on or from a vehicle, by way of a premises licence.

Adult entertainment activity in vehicles should be subject to the same regulations as AE in other locations. Failing to do that would leave a significant loophole for operators who wished to avoid any tightening up of regulation.

2.3 Demands from the Industry

Club owners and managers

Interestingly, and perhaps not what the public might expect, there is demand for better regulation from the industry. The AEWG was told that most of the operators in the adult entertainment business want a level playing field for all. Operators thought that it was not fair for some of them to spend money on facilities and controls, operating legal activities, when others were able to set up business on the back of a liquor licence and not apply or monitor Codes of Conduct for performers and customers.

Having visited a range of premises providing adult entertainment, the AEWG saw for itself significant differences in the standards of self-regulation: some operated lengthy and detailed Codes of Conduct, with tight security and adequate facilities for performers, whereas others did not.

We noted in particular Codes from For Your Eyes Only, The Truffle Club and Spearmint Rhino. All three are experienced operators and we were convinced by the level of detail in their Codes that they were worried that illegal activities would probably take place without these strict and strictly monitored rules. One commented that "There is a potential negative impact on performers if they stray into prostitution, although the risk of this is more likely in venues which are poorly operated with poor controls." ( For Your Eyes Only Interview see Annex 6 (6.3))

We noted specific Code of Conduct examples aimed at preventing illegal activities

• "When you are doing a table dance, don't lean into the guest, this is a NO DISTANCE NO CONTACT club."
• "No touching the customers in any way (shoulders, legs, face or crotch)".
• "Don't let customers touch you - legs, breasts, other personal parts, hands or face."
• "Don't go on the floor, crouch down quickly but don't stay down there and don't have your knees on the floor."
• "Don't put your breasts in a customer's mouth."
• "Don't insert your fingers into your "fanny"."
• "Don't touch another girl when you are dancing with her or don't act like you are touching her." ( FYEO Code of Conduct see Annex 10)
• "Performers may not perform any act that clearly simulates masturbation, oral sex or sexual intercourse, including the insertion of any object, including their own finger into any genital opening. Performers may not touch their breasts with their mouths, lips or tongues."
• "Performers are never to perform a nude table dance unless performer is in a supervised area or within 5 metres of a floor supervisor."
• "For the purpose of constraint, performers may only touch a customer above the customer's chest with only the performer's hands."
• "Performers must not sit on or straddle the customer."
• "Performers are never to intentionally touch the genitals or breasts of another performer or to knowingly permit another performer to intentionally touch their genitals or breasts."
• "Performers are never to engage in an act of prostitution (the receiving of gratuities or payments for any form of sexual favour or offer as such).
• "Performers may not accept the customer's offer of payment in return for sexual favours (solicitation )."
• "If a customer attempts to touch, or to speak to a performer inappropriately, the performer must immediately stop the performance and explain the relevant rules. If necessary, ask for assistance from and cooperate with a floor supervisor, who will take appropriate action, which may include escorting the customer out of the Club." (Spearmint Rhino Code of Conduct see Annex 9)

There is an obvious worry amongst those in charge of premises providing adult entertainment that without appropriate controls and safeguards, performers could stray into illegal activities including prostitution or soliciting. We note also that the operators bear the costs of their self-regulatory controls yet still, with an eye on profit, consider that those costs are worthwhile.

The Performers

Research by Bindel ²¹ (2004) highlighted the level of dissatisfaction with working conditions amongst the performers she interviewed. Issues raised included: a lack of dedicated changing facilities; a lack of refreshments away for the public area; and poor environmental conditions. In addition the fact that all performers are self-employed, paying the club a fee to dance and relying on tips and private dances for income, can mean that they sometimes struggle to make a profit. In some instances performers reported exploiting customers' naivety in relation to charging patterns in order to make money. Bindel concludes that clubs, whilst absolving themselves of all responsibility, may be creating the financial conditions that may lead some performers to offer sexual services.

The AEWG conducted its own research into performers' views. Asked what performers would improve about their job, most said that the performers need more protection, that commission should be reduced and rudeness from customers should not be tolerated.

• All performers talked about the variability in earnings. At the top end, they could earn up to £800 per shift, but they all said that they sometimes ended up owing the club money. This degree of variation made establishing an average very difficult. Performers found it marginally easier to estimate an average range that was £200-£300 for around 10-20 hrs work (after commission). The ability to earn a living from dancing was mediated by a range of factors. These include the need to pay commission and/or a deposit to the club, fines and penalties, whether they worked on week days or weekends (which are more lucrative) and number of private dances they managed to secure. One performer also mentioned that she also had to pay for her own drinks and sometimes she would have to pay extra for protection and the DJ. All said they sometimes end up out of pocket and that they have to work long shifts just to break even. ( Performer Interviews see Annex 7)
• Two out of the five performers mentioned that the prospect of earning money had formed part of the reason for starting to dance. The financial benefits associated with dancing seemed to relate to the belief that performers could earn additional money quickly in an emergency or when they needed extra money for 'luxuries'. Only one performer chose to rely on the money as a sole source of income. One said she had started dancing to 'pay off debts' and another wanted money to pay for plastic surgery. Another only danced 'now and again … when I need money quickly for something particular '. (Performer Interviews see Annex 7)
• The AEWG noted that financial reward was not mentioned by any performer as the sole reason for starting dancing. Enjoyment, excitement and curiosity were more frequently mentioned as the main reasons for being attracted. The reluctance to rely on adult entertainment performance as a sole source of income may be partly due to the unpredictability of the amount of money performers are able to earn.

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