Committee (3rd Day) (Continued)
71: After Clause 19, insert the following new Clause—
“Decriminalisation of associated workers in brothels
(1) The Sexual Offences Act 1956 (c. 69) is amended as follows.
(2) After section 33A insert—
“33B Associated workers in brothels
For the purposes of sections 33 and 33A, a person who is not directly involved in the provision of sexual services is not to be treated as assisting in the management of a brothel by reason only of being employed in a brothel.””
With Amendment 71, we are looking at the issue of the decriminalisation of associated workers in brothels. This is another step on our road to try to decriminalise as much of this as possible. In introducing these amendments, I commend the Minister for his versatility and energy. He had a lot more consensus, I think, on the Statement just now than he will find from any of us with this Bill. Nevertheless, I shall press on with the amendments in the hope that he will agree with us on some things.
Our first amendment is to decriminalise the associated workers. They are extremely important. The women who work as receptionists or maids are essentially there to keep the sex workers safe, to raise the alarm if something very untoward happens and even to provide company in extremely dull times when there are no customers. None of those should be criminal acts and their presence when they might come across violent clients is essential. Of all the things I saw when we were invited to visit some of the premises in Soho, one of the most shocking was the safe room where women go when they are threatened with violence. There is a steel door and several bolts. It is not used frequently but frequently enough. Something so real as that was, for me, a salutary illustration that these women often face violence. It can appear when they are at their most defenceless.
Amendment 72 concerns the definition of a brothel. I originally tabled this amendment to suggest that the premises should not be regarded as a brothel where there are no more than two prostitutes. The Minister will have noticed that I changed this late last week to four because I reread the Royal College of Nursing’s submission on this subject. With all the experience of nurses as health workers, they felt that four was the right number, so I decided to go for their recommendation.
The Minister has heard me talk before about New Zealand so he will not be surprised to hear me say that, in New Zealand, the law makes a distinction between a small, collectively run brothel of up to four people working together and larger brothels which must be licensed. Reports from New Zealand say that the new legislation has increased the safety and security of women by enabling them to work in this way. By contrast, there is no evidence that it has made life more difficult for those hoping to license the larger brothels, that it leads to more disorder or anything of that kind.
We are simply asking in the proposed new clause for recognition of the reality that, as long as women work in the sex trade, they should be kept as safe as possible. We aim to give the Government a chance to honour their commitment made on 17 January 2006. Fiona Mactaggart, then Minister of State at the Home Office, launched the Government’s Coordinated Prostitution Strategy. The strategy document said that the present definition of a brothel ran counter to the advice that the Government and others provide—that, in the interest of safety, women should not sell sex alone. It said:
“The Government will make proposals for an amendment to the definition of a brothel so that two (or three) individuals may work together”.
With this amendment I invite the Minister to go back to the commitment made at that time. I beg to move.
We support the amendments. I hope the Minister will be able to reassure us that nothing in this Bill would go against the safeguards that her new clauses seek to insert.
Amendment 71 raises an important point about those people working in incidental jobs in premises which are closed down. There is nothing to be gained by criminalising those who have done nothing wrong but work at a business that is later proved to be a front for an illegal brothel.
Amendment 72 rightly raises the concern that this new power will, if used inappropriately, drive prostitutes out of relatively safe brothels and on to the streets. We have all heard the statistics of violence and abuse against prostitutes. It would be entirely wrong to force prostitutes out of their private premises in order to expose them to more of these attacks. As the noble Baroness highlights, even the Home Office accepts that the current definition of brothel goes against common sense. Why have the Government continued with this harmful definition?
I resist these amendments and hope to persuade noble Lords why Amendment 71 will not achieve its aim and why the Government do not support Amendment 72. Amendment 71 seeks to amend the offence of keeping a brothel used for prostitution by exempting those who do not own the brothel, but are employed there not directly in the provision of sexual services. We do not believe this would be appropriate. However, the amendment could prevent the prosecution of someone who knowingly takes an active part in the running of a brothel. Existing case law already excludes people involved in purely menial and routine duties such as cleaning the stairs or answering the door. We consider it appropriate that someone can be prosecuted for managing or taking part in the running of a business where they have some control over it, even if they are not the owner. The classic example might be a man who has control and ownership of a brothel and employs his brother or friend to manage it. We are therefore not inclined to amend case law in this area by means of legislation.
Amendment 72 also seeks to amend the law in relation to brothels by amending the definition of a brothel to ensure that where one or two prostitutes—the amendment provides for up to four—work together at a premises, whether with or without a maid, the premises will not be considered to be a brothel as long as the prostitutes retain control of their earnings from that prostitution. This definition could apply to a number of offences in the Sexual Offences Act 1956 such as the offence of keeping a brothel. The question of the term “brothel” is defined by case law as a house,
“resorted to or used by more than one woman for the purposes of fornication”.
This covers two or more prostitutes working together at a premises even if only one of the prostitutes uses the premises at any given time.
The noble Baroness referred to opinions expressed by a previous Minister, and it is true that our Coordinated Prostitution Strategy, published in 2006, sets out a commitment to amend the definition of a brothel so as to allow two or three individuals to work together. This remains part of the prostitution strategy, and during the passage of the Criminal Justice and Immigration Bill last year, we made a commitment to consult before any change to the definition was made. Following the publication of the strategy, we received considerable feedback about the negative impact such a move might have on the ability of enforcement agencies to identify and deal with prostitution involving trafficked victims, the under-18s or those who have been exploited, as well as concerns from communities about the impact on local neighbourhoods. Furthermore, the recommendations arising from the Government’s review, Tackling The Demand For Prostitution, published in November 2008, make it clear that the priority of the Government should be to focus on measures that address demand. The Government fully accept the findings of that review, and Part 2 of this Bill includes measures to implement some of its specific recommendations. These measures, combined with the non-legislative recommendations made in the review, form the immediate priorities of the Government.
While we still accept that there are arguments in favour of allowing two women to work together in one premises, I am concerned that there could be problems with such a move. Instead, the Government intend to focus their efforts on tackling demand and reducing exploitation. On that basis, I ask the noble Baroness to withdraw her amendment.
Having listened to both sides of the debate, I concede that there is some weakness in Amendment 71 for the reasons advanced by the Minister, although it could be redrafted for the next stage so as to eliminate the aspects he mentioned. However, I do not think that the case he has made against Amendment 72 stands up at all. This is a thin Chamber at the moment and obviously there is no question of the noble Baroness deciding to divide the Committee, but the case she and the noble Viscount, Lord Bridgeman, have made for Amendment 72 is very strong. I hope that she will think seriously about bringing it back at the next stage.
I was a little late for the start of this debate and had not realised that it would end as quickly as this. I very much support the amendment and I find it quite extraordinary that it is being resisted in this way. What is being asked for here is the introduction of safer ways for people in this trade of selling themselves, if you like—whatever it is and for whatever reason. It would at least be safer for them under these circumstances. I am not at all convinced by what the Minister has said and I hope that the noble Baroness will bring the issue back on Report, if not sooner.
I am certainly tempted to test the opinion of the House sooner, given the amount of informed support that I have had, but I shall resist that in the hope that the Government, having heard it, and the kind offer of help with drafting so that I can table a perfect amendment on Report, will encourage me to do that. I warmly thank all noble Lords who have spoken.
The Minister’s only real argument in resisting Amendment 72 was considerable feedback from the enforcement authorities, but that is only one side of the equation. They are not concerned with health, and calling them enforcement authorities suggests that they are not concerned as much with women’s safety in this instance either. I hope that between now and Report—it is getting ever further away because we have a Statement or even two every day and are making slow progress—the Government will have plenty of time to rethink. In the mean time I beg leave to withdraw the amendment.
Amendment 71 withdrawn.
Amendment 72 not moved.
Clause 20 agreed.
Schedule 2 : Closure orders
73: Schedule 2, page 142, line 23, at end insert “, and
(c) that any persons identified under paragraph (b) have been consulted”
Amendments 73, 75, 78 and 80 concern what happens when a closure order is issued against premises. Amendment 73 would ensure that at least if a closure order is offered, it is done fairly by consulting those who should be consulted. Amendment 75 refers to the authorising officer having regard to the views of those consulted, and Amendment 78 is concerned with other measures that could be taken but the police decide for their own reasons that it would be much easier to issue a closure order than to undertake the other more onerous and difficult measures. I invite the Minister to put on record where closure orders should lie in the system of priorities.
We believe that they should be a last resort, particularly when bearing in mind that such premises may be people’s homes and children may be adversely affected. The closure order should be undertaken seriously. The Minister in another place talked about it being necessary to disrupt criminal activity and exploitation. Obviously there must be a level of evidence that serious criminal activity, such as violent pornography or class A drug-taking, is happening on the premises, but the Bill does not say that closure orders should be made only as a last resort, which is worrying.
That brings me to my last point, on proportionality. We should aim to ensure that only proportional action is taken. For example, a closure order was issued this year in Soho against premises, and it was thrown out of court. It was not found to stand up at all, and there was no good reason for issuing it. Had that gone through, the effect on the lives of the women would have been devastating, so obviously the courts came to a very sensible judgment. They looked at the evidence and decided that it would not stand up. We do not want to be drafting a Bill that would make that situation likely to fall the other way, so that people who have committed no serious crime but who have some hearsay evidence against them would face disruption to their lives and those of their dependants that would result from a closure order. I beg to move.
Again, we have sympathy with these amendments. They would add an important requirement to ensure that the police operate with the safety of those working within the brothels in mind. As previous debates have highlighted, it is often unclear where the line of exploitation is to be drawn. As the noble Baroness emphasised, it is imperative that when considering a closure order the police should talk to and listen to those in whose interests they are meant to be acting.
I support the amendments. The problem with these clauses brings us once again to the realities of work in the sex industry. While I am sure we all welcome the aim of combating trafficking and child exploitation, these provisions, once again, have unintended consequences. We know beyond any shadow of a doubt that sex workers are safer inside than outside—the research suggests 10 times safer—and so measures that drive sex workers out of their premises and on to the street are not desirable.
The noble Baroness, Lady Miller of Chilthorne Domer, mentioned the closure order that was taken out in Soho at the time we were visiting for meetings with the people who work there. Although in that case the order was not brought into effect, it is important to note that the women who lived there had prompt access to lawyers, who took action immediately. This is unlikely to be the case with many people in that situation. It is very important that the orders are used only for their avowed purpose of dealing with trafficking and exploitation.
It is worth putting on record the comments of the Joint Committee on Human Rights that these provisions carry a real risk of violations of the right to family life and respect for the home under Article 8 of the ECHR, and the protection of property under Article 1 of Protocol 1 where the premises are privately owned. The Joint Committee on Human Rights corresponded with Ministers about safeguards on these provisions but was not satisfied with the assurances. The replies led the JCHR to say that when designing policy,
“the state is required, as part of the proportionality exercise, to take the least restrictive measures to achieve its aim”.
This would mean that closure orders should be made only as a last resort when other methods have been tried and failed.
The JCHR also notes that there is no specific requirement in the Bill for the authorising officer or the court to consider whether an order would make someone homeless and, if so, if they could find alternative accommodation. That, too, leads the JCHR to feel that these measures need amendment. I very much support the noble Baroness.
I shall not add much to what has been said because my noble friend Lady Stern and the noble Baroness, Lady Miller of Chilthorne Domer, have put the case extremely well. Having had conversations with some of the sex workers who were here last week, it is quite clear that there is still huge concern about the actions that can be taken—and, indeed, are sometimes taken—under these circumstances. As we all know, children as well as the sex workers themselves can be made homeless, and it is important that the Government take this fully into account when proposing legislation of this kind.
I thank the noble Baroness, Lady Miller of Chilthorne Domer, for trying to expedite our procedures. We seem to have a single grouping now that previously was two groupings. I shall try to respond to all the amendments because, as the noble Baroness said, there is a certain logic in moving them en bloc.
Amendments 73 and 75 are the first of a number of amendments that relate to Schedule 2, which sets up the process for imposing the closure of premises to stop activities relating to certain pornography-related and prostitution-related offences from taking place. Indeed, as the noble Baroness has pointed out, Amendments 73, 75, 78, 80 and 82 have been recommended by the Joint Committee on Human Rights, which has commented on the need for appropriate safeguards in these provisions to prevent the inappropriate use of closure orders. We take seriously the points raised by the committee, and I assure the noble Baroness that we share her aim of ensuring that these orders are targeted only at premises where serious criminal activity involving prostitution or child pornography has taken place.
We understand the reasons underlying the committee’s concerns but we do not believe that its particular concerns relating to the closure orders are justified. While I also appreciate the points that the noble Baronesses have raised on this issue, I assure them that the amendments are unnecessary. We believe that the provisions already contain sufficient safeguards against the inappropriate use of closure orders.
It is important to reiterate why these new powers are so important. Currently, if the police suspect that premises are being used for activities related to prostitution or child pornography offences, the police may enter the premises and arrest those who are committing the offences. However, unless the premises are associated with the use of class A drugs, persistent disorder or nuisance, the police are powerless to prevent the premises from reopening once they have left. The provisions are intended to address that issue.
Amendments 73 and 75 would oblige the police to ensure that consultation has taken place with and that they have regard to the views of people identified as having an interest in the premises before they issue a closure notice. There is already a requirement for the authorising officer to be satisfied that reasonable steps have been taken to identify such people. While clearly well intentioned, these amendments could prevent such orders from working effectively. The point of a closure notice procedure is to ensure that premises can be shut quickly without tipping off those responsible for the prostitution-related or pornography-related offences that the notice is about to be served. Closure notices may well be used following covert surveillance on particular premises. It would therefore be inappropriate to go in beforehand and try to consult interested parties, albeit that some of those people may be victims rather than the perpetrators of the offence. Aside from disrupting the covert operations and the potential to obtain evidence to convict those who have committed the offences, it could also allow those involved time to organise themselves and take action to make it more difficult for the police to enforce closure notices.
I emphasise that within 48 hours of a closure notice being served, a magistrate’s court must hold a hearing to decide whether a closure order should be made. Any person who resides at the property or who has control of or responsibility for it or any other person with an interest in it may make representations to the court at the hearing. The court may also adjourn the hearing to allow such representations to be made. Such people also have the right to appeal against the making of a closure order and can apply for it to be discharged at any time. In addition, the schedule allows for compensation to be paid to those who incur financial loss as the result of a closure order or notice in appropriate circumstances.
A point was made about the offence in Soho, but that offence seems to prove the point. There was a closure order, it went to a court, the court did not accept the argument and the case was dismissed. That is what courts are supposed to be doing. I do not see that there is any need to be fearful; rather, it is reassuring.
Amendment 78 seeks to ensure that closure orders can be imposed only in circumstances where no other measure will prevent activity relating to the relevant child pornography or prostitution offences taking place. The fact that the order needs to be necessary should be sufficient safeguard to ensure that they are not used where other reasonably practicable steps could be taken by the police to prevent the use of premises or activities relating to specified prostitution or child pornography offences. There may be other measures that could be taken to prevent the use of the premises for such activities, but these may be within the power of the owner or the occupier rather than the police. Equally, measures that the police could take may not be reasonably practicable. For example, putting a police officer on the door of premises 24 hours a day may deter criminal activity but would clearly be very costly and could prevent the police dealing with other priorities in the area. However, we will make it clear in the guidance that police should consider what other steps they could take to prevent the premises being used before issuing a closure notice.
The purpose of Amendment 80 is to ensure that before authorising a closure order, a court must consider the effect that making such an order would have on the human rights of any person who owns or resides at the premises, or anyone likely to be affected by the order. We do not feel that that is necessary or appropriate. The police have to take reasonable steps to establish the identity of who resides in the premises, has control of or is responsible for the premises or has an interest in the premises. It is difficult to see how this would not involve them giving consideration to who could be affected by the order. A closure notice would have to be served on these people, who would have the opportunity to make representations to the court as to why the order should not be made. While we understand the desire to see safeguards in the Bill, it does not appear that this amendment provides a more structured approach to the requirement already imposed on the police and the courts as a public authority under Section 8 of the Human Rights Act 1998 to act in a way which is compatible with convention rights. Therefore, I hope that I can persuade the noble Baroness not to pursue that amendment.
Amendment 82 would omit the proposed new Section 136Q of the Sexual Offences Act 2003. This section gives the Secretary of State order-making powers to extend the power to issue a closure notice to persons other than police officers. That has not been referred to, so although it was mentioned in what I might call the supergrouping, it may be something to which the noble Baroness wishes to return and perhaps I should not proceed.
I accept that invitation. As I have said, the power in proposed new Section 136Q gives the Secretary of State order-making powers to extend the power to issue closure notices to people other than police officers. Although we have no current intention of extending these powers beyond the police, it will be necessary to review the situation on the basis of operational experience once the orders have been implemented. If the Secretary of State should decide to exercise the power provided by new Section 136Q, Parliament will, of course, have the opportunity to scrutinise the order exercising the powers; as such, the order will be subject to the affirmative resolution procedure. Therefore, I hope, although I do not expect, that the noble Baroness will be reassured that any attempt to widen these powers will receive sufficient parliamentary scrutiny and will be content not to press her amendments.
Finally, the noble Baroness, Lady Stern, spoke about off-street prostitution and about providing a safer environment. In the Government’s view, it is not necessarily a safer environment. Operation Pentameter, a national police operation targeted at trafficking for sexual exploitation, identified 167 adult victims located in different types of premises. This has highlighted the nature of the conditions in which some people are involved in off-street prostitution. In terms of safety, the difference between off-street prostitution and street prostitution can be exaggerated.
Does the Minister accept that there is a considerable difference between those who have been trafficked and are held against their will and the vast number of people who, for various, multifarious reasons, have decided to take up this work because that is how they can best make a living? We are in no way trying to reduce the importance of the numbers of those who are under coercion when talking about the effects that these measures might have on the large number of people who have chosen to do this work and are trying to do it as safely as possible.
I know what the noble Baroness is saying but I will avoid a temptation that will lead me into an argument that proved so unfruitful the other evening when we argued about statistics. I have offered to try to provide some information. There are parallels to an extension of the powers, which would be subject to an affirmative resolution. For example, local authorities already have the power to issue closure notices in relation to premises associated with persistent disorder or nuisance. Although we have no intention yet of so doing because circumstances do not suggest that it is necessary, we ask for this power so that the necessary view, based on operational experience, can be taken once the orders have been implemented.
I would be most grateful if the noble Lord could give a little more help. I heard what he said in reply to the points raised but the indication was that the 167 people who were found in the premises were being exploited. How many of them were trafficked? Does the Minister have the figures? That would be helpful.
I thank all noble Lords who have spoken, particularly the noble Viscount, Lord Bridgeman. The Government will get a strong message from the joint opposition to these clauses. The Minister made a comment about the relative safety of women working on or off the street. There have been about 60 murders of sex workers over the past 10 years. Of those 60, can the Minister tell the Committee how many were murdered while working on the street, and how many were murdered while working in brothels? As the Minister knows, I was not immensely happy with the replies to many of my points but I am afraid it went from bad to worse. The idea that we would want something of the nature that he suggested before this House by affirmative resolution is, given the breadth of problems that it might produce, something that we will be likely to resist very strongly. Before I finally withdraw the amendment, I invite the Minister to inform the Committee, if he has the figures.
No, I do not have the figures. I was seeking confirmation that the 167 persons mentioned in respect of Operation Pentameter were all victims of trafficking, indicating that brothels are not necessarily safe places. I take the point of the noble Baroness, Lady Stern, that there is perhaps a distinction to be made on occasion between those who are forced and those who are not forced. I do not have the statistics on the number of murders, but I suspect that the noble Baroness, Lady Miller, may have them, since she collects them with an avid interest. I will, of course, endeavour to look at them. The noble Baroness comes from a position that favours decriminalisation, which is not shared by the Government, so it is not surprising that there is not a meeting of minds on some of the amendments.
I thank the Minister. I do not have the figures for the division; it was not a trick question. Perhaps the Minister will find the figures easier to get than I would. I certainly would not want to suggest with any of our amendments that we underestimate the destructive, terrible and appalling nature of trafficking. Obviously, where that is the real reason for a closure order, it might be a substantial reason for issuing it. However, we still have doubts regarding the way the measure is drafted and the assessment of its impact on the lives of the people involved. A woman who is suspected of having committed one of the specified offences and whose premises are closed cannot even enter them to pick up her spectacles. The premises are closed there and then. She cannot collect her belongings and is excluded, as are any of her relations, dependants or people with whom she works. The English Collective of Prostitutes has called it a very violent psychological experience. The women who underwent such an experience recently in Soho had to withstand mutterings from hostile neighbours in addition to undergoing violent psychological trauma. This issue needs to be handled correctly. I hope that we can discuss it before Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 73 withdrawn.
74: Schedule 2, page 142, leave out lines 24 to 27
Amendments 74 and 79 are probing amendments to find out what this schedule is intended to achieve. These provisions are very similar to those relating to closure orders for anti-social behaviour and drug offences. It is particularly important that they are proportionate. I share the concerns raised by the Joint Committee on Human Rights in relation to the previous group of amendments that the Bill’s wording is pretty wide. For example, new Section 136B(8) states that,
“it does not matter whether the officer believes that the offence or offences in question have been committed or that they will be committed”.
That is extraordinary wording to have in a Bill in relation to an offence. All the officer has to have is “reasonable grounds”. I would like the Minister to tell us what constitutes reasonable grounds. If it does not matter whether the officer believes that the offence has been committed or will be committed, what would constitute those grounds?
Amendment 79 seeks to remove the words in new Section 136D(10),
“it does not matter whether the court is satisfied that the offence or offences in question have been committed or that they will be committed”.
That is incredibly wide drafting. I beg to move.
The noble Baroness has tabled important amendments with which we once again have considerable sympathy. I, too, invite the Minister to agree that, as drafted, the Bill gives great power to police to close brothels on nothing but speculation and rumour. We agree with the noble Baroness that brothels should not be closed without good reason, with all the associated danger for prostitutes working there, which was highlighted in the debates on previous clauses.
Amendments 74 and 79 relate to the issuing of a closure notice by a constable or a closure order by a court. As has been said, they would remove new Sections 136B(8) and (10), which Schedule 2 inserts into the Sexual Offences Act 2003. These subsections are intended to ensure that premises can be closed where the offences have not yet been committed as well as where offences have been committed.
The conditions for issuing a closure notice or making a closure order focus on whether activities related to the relevant prostitution or pornography offence have taken place on the premises rather than whether all the elements of the offence have yet been committed by a particular person. This means, for example, that where premises are being used for controlling prostitutes for gain, it is enough that the officer reasonably believes that sexual services are being provided at the particular premises. It is not necessary for the police officer to have reasonable grounds to believe that all the elements of the offence of controlling a prostitute for gain have yet been committed, so for example, they will not have to believe or prove that the controllers have yet received a gain from their activities. We believe, therefore, that these subsections are necessary to clarify the meaning of the conditions governing the issuing of a closure notice or the making of a closure order.
We share with the noble Baroness, and no doubt many of your Lordships, the aim of ensuring that appropriate safeguards are in place to protect individuals from their premises being closed arbitrarily. However, given the important issues that these orders aim to tackle, we also need to ensure that the police have the necessary powers to respond rapidly when they have reasonable grounds for believing that it is necessary to close premises to avoid future offences occurring. On that basis, I would ask the noble Baroness to withdraw her amendment. I think that I have defined “reasonable” as it is seen in the Government’s eyes.
I will read the Minister’s reply and before Report ask my noble and learned friends’ advice about whether the Bill as drafted should pass into law, given the reservations I expressed when moving the amendment. I hear what the Minister says but I still have considerable doubts. In the mean time, I beg leave to withdraw the amendment.
Amendment 74 withdrawn.
Amendment 75 not moved.
76: Schedule 2, page 142, line 39, leave out “regularly”
In moving this amendment I, too, want to make it clear that we would be very concerned if the police did not know that somebody working in a brothel had been trafficked. However, none of us is talking about those people. We are talking entirely about people who voluntarily and willingly exercise this trade. We may not particularly like it, but that is not our job; our job is to ensure that legislation does not target people unnecessarily.
This is a probing amendment. New Section 136C(1) states:
“A closure notice must—
(a) state that no-one other than a person who regularly resides on, or owns, the premises may enter or remain on them”.
I am not sure how anybody is going to identify whether somebody is regularly on the premises. We need to establish what inquiries will be made to find out whether somebody is on the premises continuously, every night or whether they use the premises occasionally but are still part and parcel of what is going on there. How will those inquiries be made? The Minister said earlier that inquiries would be made to ascertain who the people were, whether they were connected with criminal activity and whether such activity was taking place.
As I say, new Section 136C(1) says:
“A closure notice must—
(a) state that no-one other than a person who regularly resides on, or owns, the premises may enter or remain on them”.
Therefore, under this provision some people may be entitled to stay on the premises. To whom would that apply? Would people not engaged in illegal activity be allowed to go back; for example, prostitutes who are voluntarily there and are not acting illegally? Would they be able to return or would everyone be pushed out and made homeless? Will other agencies be able to help people in that situation? However, new Section 136D(2) states absolutely categorically:
“A closure order is an order that the premises in respect of which the order is made are closed to all persons”.
It cannot be both; either some people are allowed to remain for legitimate purposes or nobody is allowed to remain. It is not unfair to ask which this will be. I would certainly feel more comfortable with all this about the closure order if I felt that illegal activity, which we are all against, was being closed down.
All of this, as we have said, is about the voluntary aspect of this, and people being thrown out of their business or work premises, or whatever, for at least three months, and having to go to court as a result, because they are doing something illegal—which they may not be. We need to be clear about getting this definition right; that we are all talking about the same people, and we are not talking about those who are engaged in illegal activity. No one here would support any of that, but we would like to know what happens to those who are perfectly legitimately doing what they are doing, which no legislation stops them from doing, and how they will be supported by other agencies while their premises are closed. I beg to move.
I will seek to explain successfully what we are seeking to achieve and I hope that if I fail I will have the opportunity to write. I am pretty sure that I understand where we are, but I am not 100 per cent sure on the point that has been raised.
However, Amendment 76 would remove the word “regularly” from new Section 136C which deals with the content and service of a closure notice. A closure notice is issued by the police before an order can be applied for from the court. Under the current provisions, this must state that only those who regularly reside on or own the premises may remain on them.
The amendment would have the effect of allowing people who reside on the premises to visit the premises on an occasional basis. We believe that this widening is not appropriate. It could lead to people who had been using the place for prostitution staying overnight—perhaps on a visit from another city—claiming that that they could stay because they had visited the place before. That is not our purpose. The amendment would also make the closure notice more difficult to police because of difficulties in establishing who could be said to reside at the premises, however infrequently.
We believe that in circumstances where a closure notice has been issued—namely where a police officer has reasonable grounds for believing that the premises are associated with certain serious criminal offences—it is reasonable to expect people for whom the premises are not a sole or main residence to refrain from entering the premises. For these reasons, we resist the amendment.
I shall seek to deal with the precise point made by the noble Baroness. When a closure notice is made, those who regularly reside on the premises can remain there. In other words, in the period between the notice and the court’s decision, the owners or people who regularly reside there can stay. However, if the court makes a full closure order, no one is then allowed to remain. The court will of course consider representations from those affected. As I have said, people are free to go back to the court within the three-month period.
Closure orders are more likely to be used when police have covertly surveilled the premises and, therefore, may well have knowledge of those living on the premises as a result of that surveillance and other inquiries made during the investigation. We do not believe that the amendment is necessary; it would widen the aspects, and there is a distinction between the two parts of the legislation—between notice being given and court appearance, when there is a closure order. If that is not absolutely correct or clear, I will seek to write to the noble Baroness in greater detail.
Perhaps I may press the Minister further, because I hope that I asked—I meant to, if I did not—what agencies will be involved other than the court agencies? Earlier in the Bill it is stated that local authorities will have to be consulted. You can consult a local authority for all sorts of reasons. One may simply be to ask whether it knows of the premises, and whether it is bothered about it or has had concerns. Another reason might be that it is perfectly possible that people will be evicted or be out of the premises for two or three months—people may be on drugs and will need care. Who else will be involved? You cannot just tip people out; if you are going to make a closure order, you are going to prosecute because you are concerned about the nature of the activities that have taken place, which are likely to have been illegal—that, as I understand it, is the reason for the closure order—but you may also find that there are people there who are not acting illegally. What other agencies will provide support to the police? I am certain that a court would want to know the answers to these questions.
The answer in terms of how these orders are implemented in practice will lie in guidance to be issued. It would seem reasonable to say that the relevant social security or other agencies are to be alerted and able to assist people who are not directly to be prosecuted and who are thought not to be directly involved, but are put to hardship. I will seek to confirm that in writing to the noble Baroness.
Amendment 76 withdrawn.
77: Schedule 2, page 143, line 43, leave out “two” and insert “three”
This amendment seeks to ensure that all three of the conditions, instead of just two—which is all that the Bill requires at the moment—are satisfied before a closure order can be authorised. For example, what would happen if, as regards the third condition, reasonable steps had not been taken to establish the identity of any persons residing on the premises? You might be closing the premises although you had the wrong person. I should like to probe the Minister on why only two out of the three conditions apply, although the Bill specifies that three conditions need to be met. Why is it reasonable to revert to only two of them? We have specified in Amendment 81 that:
“The third condition is that the court is satisfied that the authorising officer has satisfied himself of the identity of the … parties”.
This may be a technicality which the Minister can answer quite satisfactorily. I beg to move.
This goes on a little further from my previous probing question. I hope that the Minister can reassure the Committee that closure orders will not be imposed out of the blue. Closure orders, as we have said, are very blunt instruments and, given the limited nature of the order, will not prevent the exploitation moving elsewhere. Can he give us a little more information on the closure orders being imposed, particularly with regard to drug offences, and how they will be accompanied by arrests and convictions?
One of the conditions that will have to be met before the police can issue a closure notice is that reasonable steps have been taken to establish the identity of any person who resides on the premises or who has control of, or responsibility for, or an interest in, the premises. The closure notice must then be served on those people who have been identified. If the police have failed to serve the closure notice on those who appear to have an interest in the property or they fail to take reasonable steps to identify such people, the notice will not have been validly served and the court would be expected to refuse to entertain the application for a closure order on those grounds. In this respect, the provisions are the same as those found in Schedule 20 to the Criminal Justice and Immigration Act 2008 for premises associated with persistent disorder or nuisance.
We may have a straw man here. If it went to court in the manner that has been suggested, the court would not find it difficult to come to the view that the order had not been served correctly, and would dismiss the claim. Had there been a financial loss to the organisation or persons responsible, they would be able to raise that issue as well.
I shall read carefully what the Minister said. I understand that he is disputing the fact that my amendment would mean that it is more likely that the closure notice would be properly served. He is saying that, as the Bill is drafted, it would be certain that the notice would be properly served. I am still puzzled. If there are three conditions that should be satisfied, why does the Bill specify two out of three? However, I will read the Minister’s comments carefully.
Before the noble Baroness withdraws her amendment, I will respond to a point that I missed. The noble Baroness, Lady Hanham, asked what the courts would do in relation to drug offences. The offences covered in this part of the legislation relate only to prostitution and pornography, not to drugs.
The trouble with a debate like this is that it raises questions as you go along. I want to check whether the Minister said that the closure order notice has to be served on everybody in the premises—if I sound questioning, it is because I am—because that is not what the legislation says. The legislation says what a closure notice must state, but does not say who it must be served on—just that it must be fixed to the door. Is everybody on the premises served with the notice before the closure order is made? Is it the owner of the premises? Who is the responsible recipient of a notice? I may have misheard the noble Lord, but I think that he said that everybody had a notice served on them. That is not what is set out in the legislation.
For the record, I shall repeat what I said. It is necessary for the police, before they can issue a closure notice, to take reasonable steps to establish the identity of any person who resides on the premises, or who has control of, or responsibility for, or an interest in the premises. The closure notice will then be served on those people who have been identified.
The noble Baroness, Lady Hanham, has put her finger on the point. I, too, am confused. The Minister is saying one thing—perhaps it is an interpretation—but our reading of the Bill is completely different. This does not seem to be what the Bill says. I am encouraged because the noble Baroness, Lady Hanham, with all her expertise on the Bench and so on, is probably much better at interpreting this than I am. If she, too, is puzzled, then we have a problem.
Amendment 77 withdrawn.
78: Schedule 2, page 144, line 17, at end insert “, and that no other measures will prevent the premises from being used for such activities”
For a reason that I cannot identify, I have already spoken to this amendment, and the Minister replied to both Amendments 78 and 80, although they are clearly in this group. I shall not weary the House by repeating what I said—and I think that the Minister replied. In case he has anything to add, I beg to move.
I pointed out, when the noble Baroness moved Amendment 73, that she had also sensibly grouped with her contribution Amendments 75, 78, 80 and 82. They were not in one group, but in two groups of two and a singleton. However, I answered them all, and I recall that she included Amendment 82. I take it that the debate on these issues has been concluded.
The confusion deepens, because I did not speak to Amendment 82—I will do that when we get to it. I may correct myself. We have another amendment to debate before that one. I will look again at my notes. In the mean time, I beg leave to withdraw the amendment.
Amendment 78 withdrawn.
Amendments 79 to 81 not moved.
81A: Schedule 2, page 144, line 24, at end insert—
“( ) If a child under 18 is resident on the premises, no action shall be taken until a multi-agency assessment of the child’s needs has taken place.”
The Minister will be glad to hear that this modest probing amendment will give him the opportunity to put on the record what plans there are to meet the needs of children who are resident in premises that are closed by a closure order. This is a particular concern of the Standing Committee on Youth Justice.
It is accepted entirely that closing, temporarily or permanently, premises used for trafficking or for the sexual exploitation of children is required by the Council of Europe conventions on trafficking, and has a role to play in safeguarding children who would otherwise be victims of exploitation. However, children need special protection under the Government’s view about safeguarding children, and our international human rights obligations. The amendment suggests that the Government may wish to ensure that, before any children are made homeless by the closure provisions, an assessment is made by the local authority involving a number of agencies to ensure that the arrangements made will leave the children in a better position than they were in before. It would be helpful if the Minister would give the Committee an indication of whether that is what the Government intend—and, if so, where it will be made clear. I beg to move.
I hope to satisfy the noble Baroness in respect of her probing amendment. Its effect would be that a closure order could not be made in relation to premises where a child is resident unless a multi-agency assessment of that child’s needs has taken place. We recognise that it is important that these orders are not used inappropriately, and that the impact of any closure order on those living at the premises is considered carefully, particularly when those people are children. However, we believe that there are already sufficient safeguards within these provisions and other relevant legislation to ensure that the needs of children are considered fully.
As I have noted, a closure order will be made only if a court believes that it is necessary to prevent the premises being used for activities related to one or more specified offences of prostitution or pornography. If these offences are being committed on premises where children are resident, it should be a priority to take whatever action is necessary to prevent these offences occurring. In some cases, the child will be a victim of the offence. In such circumstances, it is clearly imperative to take all necessary steps to prevent the activity continuing and to remove the child to a place of safety as soon as possible, using powers available under the Children Act 1989. In such circumstances, a multi-agency needs assessment should be conducted at the earliest opportunity, and we do not believe that a court should be prevented from taking any action that could help the child until such an assessment has been conducted.
The police are under a general duty to have regard to the need to safeguard and protect the welfare of children under the Children Act 2004 when exercising their functions. This would include the exercise of their powers under closure order provisions. Guidance on the premises closure orders introduced by the Criminal Justice and Immigration Act 2008 draws attention to this general duty, and states that children’s services should be involved from an early stage in action which may result in a closure order being made. Statutory guidance on the closure orders made under these provisions will echo these statements. I hope this satisfies the noble Baroness and that she will be able to withdraw her amendment.
Can I ask the Minister a question before the noble Baroness comes to reply to his assessment of the situation? We are assuming, with the Minister’s reply, that the premises are pretty small, but they could be enormous and multifloored with only one door. The children may be living far away from the offences and have no part in them at all, but by virtue of the closure order—I seem to remember when the Minister was replying to a much earlier amendment he said it might be a matter of great urgency and the closure order would have to be issued then and there—the children would become homeless and so would their parents. The likelihood is that they would be taken into care, which is pretty traumatic. Obviously, if the child is the victim in this situation, that is one thing, but if this is just somewhere the child lives and they are not involved in any of the activity, surely that is a completely different case.
The noble Baroness is building a hypothesis. The police will be raiding premises such as this only either on the basis of covert surveillance or because they have identified the people resident within it. It would make every sense for the police, recognising their responsibilities under the Children Act, to ensure that they made contact with the children’s department of the local authority to discuss with it the likely outcome in terms of homelessness for the people concerned. While the noble Baroness raises a point, the reality is likely to be somewhat different. I think removing the child without any unnecessary delay would be sensible. I do not see too many brothels being likely to provide crèches and facilities that segregate children, as the people who run those kinds of organisations do not tend to have that degree of scruple.
I am grateful to all those who have spoken and to the Minister for his reply. I have to admit that I feel that the complexities of what is likely to happen when there is a closure order are being oversimplified to suggest that all will be well for any children who happen to live there. I am not sure that it is completely fair to talk about crèches in brothels. People who work in this industry may well have children and work hard to keep them separate from whatever it is they are doing, but they may need to share a front door. To that extent, I am not sure that we have got to the point of feeling content that all children will be protected. However, for the moment, I beg leave to withdraw the amendment and reflect a little further.
Amendment 81A withdrawn.
82: Schedule 2, page 151, leave out lines 13 to 20
Amendment 82 not moved.
Schedule 2 agreed.
Clauses 21 to 25 agreed.
82A: After Clause 25, insert the following new Clause—
“Amendment of Licensing Act 2003
(1) The Licensing Act 2003 (c. 17) is amended as follows.
(2) In section 4 (general duties of licensing authorities) after subsection (3) insert—
“(4) In this section—
“public safety” may include the safety of performers appearing at any premises,
“public nuisance” may include—
(a) low-level nuisance affecting a few people living locally,(b) the reduction in living and working amenity and environment of interested parties in the vicinity,“protection of children from harm” may include the protection of children from moral, psychological and physical harm.”
(3) In section 5 (statement of licensing policy) after subsection (7) insert—
“(8) A licensing authority may publish a special policy for an area creating a rebuttable presumption that applications for new licenses that are likely to add to the existing cumulative impact will normally be refused unless the applicant can demonstrate in their operating schedule that there will be no negative cumulative impact on one or more of the licensing objectives.”
(4) In section 18 (determination of application for premises licence) after subsection (7) insert—
“(7A) When considering whether to make a representation, any responsible authority included in paragraph 13(4)(f) must assess what moral, psychological and physical harm the grant of the premises licence will have on children.”
(5) After section 21 (mandatory condition: door supervision) insert—
“21A Mandatory conditions where licence authorises adult entertainment
(1) Where a premises licence authorises adult entertainment, the licence must include a condition requiring an approved code of conduct.
(2) The code of conduct may include measures relating to—
(a) conditions of employment for performers,(b) codes of conduct for customers and performers,(c) the outward appearance of the premises.(3) When approving a code of conduct, the licence authority must have regard to—
(a) any representations made by an interested party,(b) the character of the relevant locality,(c) the use to which any premises in the vicinity are put,(d) the layout, character or condition of the premises in respect of which the application is made.””
With some relief we move on to a slightly different aspect. Before we start on Clause 26, I would like to proffer an alternative to what is being proposed in this legislation. I tabled Amendment 82A to probe exactly what the Government are seeking to do through Clause 26 and to explore whether their concerns with the current legislation cannot be met through the Licensing Act 2003.
As I understand it, the motivation for Clause 26 and the associated schedule is to address the understandable concern that local authorities and licensing authorities do not have the means available to refuse licence applications or modifications that allow adult entertainment. Quite rightly, the Government are seeking to give local residents a powerful voice in raising concerns about the establishment of lap-dancing clubs on their doorstep, and we continue to support that. We believe that residents have a strong role in this. There are many reasons to be concerned about lap-dancing clubs, and I have great sympathy with the organisations which have worked so hard to highlight examples of exploitation within that industry and sought to protect the women working in it. It is also clear that many people have understandable moral qualms about the sort of behaviour that such clubs are reputed to encourage and are worried about behaviour spilling out beyond their four walls.
As my amendment indicates, I do not believe that we need to use a 25 year-old piece of legislation to achieve a reduction in this. By my reading, the Licensing Act’s objectives are more than adequate to deal with the concerns. If they are not, there is already the precedent of the mandatory conditions for certain licences within it to fill the gaps. My proposed new subsection (4) quotes liberally from guidance to the Licensing Act issued by the Government. It makes clear that the licensing objectives of preventing public nuisance or protecting children from harm are directly relevant to the concerns that have been raised. If there is evidence that having a lap-dancing club near a school or college leads to harassment of the pupils or students, why is that not already taken into account under the protection of children from physical, moral and psychological harm? If a new lap-dancing club would cause an unwelcome change in the tone of a residential area, why is the licensing authority not taking account of the reduction in the living amenity of interested parties in the vicinity?
Local residents may find themselves unable to raise their concerns about a licence application. This appears to be the case from the debates in another place. I strongly encourage the Minister to bring forward amendments to the Licensing Act to address this. Nothing in that Act was intended to exclude residents’ or local organisations’ voices, so it is clear there is a wider problem. I would be very glad to work with the Minister to improve this part of the Bill, although there might be some concerns about scope and departmental responsibility because this would straddle out of our area.
Another useful part of the Government’s guidance was the detailed chapter on cumulative impact, which I have incorporated into my proposed new subsection (3). Licensing authorities are already allowed to establish a special policy around an area where they feel the number of licences being applied for is giving rise to an unwelcome cumulative impact. This is obviously relevant in areas where there is a growth of clubs or bars. There is no reason why it should not be applicable to lap-dancing clubs, too. The development of an area into a quasi red-light district, if that is what is being expected, is obviously one the licensing authority should have the power to control. This is a problem the Government are trying to address through the use of quotas for the licensing of lap dancing. We will come to the quotas in more detail later. In the mean time, does the Minister not accept that the cumulative impact guidance already given to licensing authorities gives them the power to refuse applications when they contribute to a negative cumulative impact?
We turn to the code of conduct. So far the parts of my proposed new clause that I have discussed are merely explanations and clarifications of the existing law. Licensing authorities are already actively encouraged by the Government to interpret the provisions this way. Proposed new subsection (5) in my amendment describes the one area where I feel that the Licensing Act may be deficient in protecting against inappropriate adult entertainment—or adult entertainment in general, because it may not be inappropriate. In speaking to outside groups on the matter, it became clear that although some premises licences specifically cover adult entertainment and include a number of safeguards and restrictions, others did not mention it at all, and it became permissible almost by accident. That is clearly not desirable, so I have inserted a new mandatory condition following the precedent of the licences that permit alcohol to be sold or films to be shown. A mandatory condition would ensure that adult entertainment is properly regulated with a binding code of conduct. In that way, the valid concerns about the exploitation of workers and the behaviour of customers and performers can be met through those representations.
Much of subsection (3) of my proposed new section, for example, is taken directly from the Local Government Act 1982. The criteria seem entirely appropriate in that regard and would be a useful addition to the Licensing Act. It allows for local premises such as schools or charities to be taken into account, as well as controlling the outward appearance of the club, thus adding to existing legislation on indecency and obscenity.
There are a great many advantages to using the Licensing Act, rather than proceeding to introduce a lot more cumbersome legislation. The following groups of amendments that we have proposed go into much more detail about our concern with the provisions as drafted, so this is an alternative to the rest. My amendment is an attempt to find a consistent, clear and easily understandable way forward to address valid concerns. I declare my interest as a member of a local authority, although I am not on the licensing committee so I would not be involved. I will be interested to hear from the Minister why this approach was not considered or preferred before the Bill was proposed. I beg to move.
The amendment proposed by the noble Baroness, Lady Hanham, offers a far more appropriate solution to what is undoubtedly a problem that the Government are right to address.
I like several things about the amendment. The local authority is absolutely the right place to have such debate and discussion. Licensing committee members are trained and updated regularly on everything that they need to consider. They are well able to weigh the sort of balances that they will have to in such cases. It is undoubtedly difficult to do so for a community where the spectrum of what are called lap-dancing clubs is so wide, from reputable premises that are very well run and causing no aggravation to neighbours—and probably contributing to the life of the community and employment opportunities—to the most seedy, exploitative establishment that it is possible to imagine, including everything in between. It is impossible to legislate for that entire spectrum, but we can empower local authorities to make those decisions.
I know that there has been criticism of that approach from some quarters, saying that we would end up with a postcode lottery, instead of taking a more centralised approach. All parties have talked about localism and empowering local communities, and that is exactly what we should aim to do here. What might go down okay in—it is hard to pick a town without causing offence, so I will take the town about which the leader of my party in this House speaks a lot, so I will rightly get into trouble if I get it wrong—Blackpool might not go down well in a small rural town in Suffolk, for example. The licensing authority should be the place to have those debates, so that it can lay down the conditions it considers appropriate. There may be one or two small drafting differences between us, but, on the whole, I support the amendment.
I support the amendment. It draws attention to this whole area. We must not forget that lap dancing is a relatively new development that has become increasingly popular. Without wanting to spoil the fun of people who enjoy that sort of thing, there are obviously sides of it that are less than desirable. One has seen examples of that in the press. I will certainly be interested to hear what the Minister has to say about the proposal. Normally, this would fall under local licensing authorities, so I await with interest what I shall hear from him.
I thank the noble Baroness for her clear exposition of what she seeks to achieve in the amendment. She asked an appropriate question about why the Government are using the 1982 Act, a 27 year-old Act—although she did use part of it in her amendment, but I shall ignore that. The answer is that we considered using the Licensing Act 2003, but local authorities told us that they wanted the 1982 Act to be used. I shall seek to explain why and answer the points that the noble Baroness raised.
Although the noble Baroness’s amendment is aimed at dealing with issues specifically arising from the provision of adult entertainment, I fear that it would have a wider impact on all applications considered under the Licensing Act 2003. First, the amendment attempts to state in the Bill how three of the four licensing objectives should be interpreted, using definitions from the statutory guidance issued to licensing authorities under Section 182 of the 2003 Act. As the definitions used in the amendment are already contained in the statutory guidance, the Government do not believe that their inclusion in the Act would add substantially to the powers available to local authorities or change how the licensing objectives are currently interpreted. It has been the experience of numerous local authorities that the powers available under the 2003 Act have not been sufficient to control lap-dancing clubs opening against the interests of local communities. Therefore, more extensive amendments are required.
Secondly, the amendment would provide local authorities with power to publish a special policy creating a rebuttal presumption and applications would be refused if they were likely to add to the cumulative impact on one or more of the licensing objections in a certain area and the applicant could not demonstrate in his operating schedule that there had been no such impact. Although I understand the intention behind the provision, again, I do not believe that it would add to the existing powers available to local authorities. One of the difficulties with the current regime is that local people and responsible authorities may have concerns about lap-dancing clubs that are not covered by the four licensing objectives.
Thirdly, the amendment introduces a requirement for any premises authorising adult entertainment to contain a condition requiring the premises to have a code of conduct approved by the licensing authority. Again, the Government have some sympathy with the concept of a code of conduct for lap-dancing clubs, but we need to be sure that such a code can be enforced. Under the 1982 Act, the local authority can impose standard conditions on sex-encounter venue licences. The standard conditions should cover those measures that are expected to be included in the code of conduct. It would be a criminal offence to contravene those conditions without reasonable excuse.
On the other hand, it is unclear what the sanctions could be for a breach of the code of conduct as proposed by the noble Baroness. The licensing authority would not be able to review the licence on the basis of the code of conduct having been breached, unless the conditions in the code were relevant to one or more of the licensing objectives. The code proposed under the amendment would also fail to deal with the issue of whether the premises should be granted a licence in the first place. The facts to which the licensing authority should have regard when approving the code of conduct tend towards that issue, rather than to how the premises should operate as a sex-encounter venue once licensed.
The impetus behind the reforms proposed in the Bill is a recognition that the existing regulatory framework provided by the 2003 Act has been unable to address the particular concerns that the presence of lap-dancing clubs raises for many local communities. Under the 2003 Act, objections made by local people on which local authorities can act must be based on the four licensing objections. Those, as we know, are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. The experience of many local communities in recent years has been that widespread objections based on the impact that a lap-dancing club might have on an area’s character or the inappropriateness of such clubs being located in certain largely residential areas have been disregarded, not because the concerns are invalid but because the 2003 Act does not recognise objections on those grounds.
Situations have therefore arisen where lap-dancing clubs have been opened in the face of widespread local opposition. Clause 26 seeks to address that situation, whereas Amendment 82A would, indeed, retain the status quo. Given that the Licensing Act 2003 aimed to create an integrated framework for the licensing of entertainment venues, I can understand the appeal of attempting to address the issue of lap-dancing clubs within the scope of the legislation. However the Government believe that, as with licensed gambling, certain venues require additional controls specific to the form of entertainment that they provide.
For lap-dancing clubs and similar venues, we firmly believe that the necessary controls are best provided by Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, and local authorities are certainly supportive of that approach. While I therefore certainly understand the intention behind the amendment, I hope that I have explained why the Government are not able to accept it and that the noble Baroness will feel able to withdraw it.
I thank the Minister for his reply. I am not entirely surprised by his rejection of the amendment, because I suspect that some thought has probably been given to that. As we go through the other amendments, however, we may very well come back to the fact that this legislation would have been, and is, perfectly adequate if amended to include lap dancing. One real advantage in this, as was pointed out by the noble Baroness, Lady Miller, is that it makes it very local; it means that something which affects local people, as the licensing of any premises does, can be dealt with against a local background. That is very important, while the number of premises—which we shall, again, be coming to—should also be in the hands of the local authority.
We would quite readily accept that a number—and probably the great majority—of these premises are extremely well run. They do not cause a problem, and there are actually few complaints about them from anywhere. The people who know about that are, again, local and able to comment or not as the situation arises. For today’s purposes, I shall not pursue this but will probably come back to it in the light of the response to the other amendments that we move to the Government’s own legislation. Let us see where the flaws in one are against the benefits of the other. I beg leave to withdraw the amendment.
Amendment 82A withdrawn.
Clause 26 : Regulation of lap dancing and other sex encounter venues etc
83: Clause 26, page 22, line 26, leave out subsection (2)
Amendment 83 is a probing amendment on the name that the Government have decided to impose on lap-dancing clubs. The amendments in this group proposed by the noble Baroness, Lady Miller, would appear to be based on exactly the same concerns. I would much prefer to see “adult entertainment venue” in place of “sex encounter venue”.
My concerns about “sex encounter venue” are precisely those that the Minister claimed were behind Clause 15 —the stigma that a name can give. The Minister has, quite rightly, argued that the phrase “common prostitute” bears with it a stigma that is often inaccurate and unfair. It will almost always lead to prejudice in future life; for example, in job interviews. That is, of course, true, so it is astonishing to see that the Government are happy to label a large number of dancers who have never participated in prostitution as “sex encounter workers”. How does the Minister expect a lap dancer ever to break into a more socially respectable line of dancing with that on her CV?
Not only is the Government’s choice of title prejudicial to the women involved, it could be downright dangerous. The Government appear to be instilling an expectation among the customers that they are, in fact, entering a lap-dancing club to engage in a sex encounter. Since many of those clubs have a strict no-touching rule, the Government appear to be raising the most perverse expectations among lap-dancing clientele, which could result in considerable disaffection.
I am sure that the Minister would not deliberately suggest that lap dancers should be stigmatised as sex workers or, even worse, should be expected to participate in sex acts or encounters. I therefore recommend to him the alternatives proposed by the noble Baroness, Lady Miller, as a far more appropriate title for these sorts of venues. So many of the provisions in the Bill have the laudable intention of enhancing the dignity of women, but I suggest that Clause 26(2) could well achieve precisely the opposite effect. I beg to move.
I should tell the Committee that in the event that this amendment is agreed to, I cannot call Amendment 84 by reason of pre-emption.
We have a number of amendments grouped with the amendment so ably moved by the noble Viscount, Lord Bridgeman. He made his points very well. We received strong representations, for example, from Equity, which feels that its members working in that field are being completely misrepresented if they are portrayed as working in the sex industry; they actually work in the entertainment industry. In any case, we are probably starting from the wrong place with the first name of lap dancing which is, I think, an American term implying something to do with sitting on laps. In the world of entertainment in this country there is a strict “no touching” rule anyway, so we might have to step back even further and address the whole way that we talk about this business, because we need to draw clear lines of definition.
Nor does this provision do any service to our overseas visitors who come over here and might be interested in going to an adult entertainment venue, quite possibly with their wives or girlfriends, but would absolutely not dream of going to a sex encounter venue. When they are told that something is classified as that, how on earth are they supposed to know that it is a perfectly respectable burlesque venue? On the other hand, if they are looking for a sex encounter and turn up at the perfectly respectable burlesque venue, they will be mightily disappointed. Calling it such an inappropriate name does no service to those who work in it; neither does it to the customers who have every right to expect it to be accurately labelled for what it is. That should start in the legislation, so I hope that the Government will think about renaming those venues.
Having listened to what has been said, I support these amendments. While I accept that it would cause an awful lot of rewriting concerning the Bill, since “sex encounter” seems to have taken root in quite a number of its pages, adult entertainment is a well accepted term. Everybody knows what adult means and I should have thought that it would be very much better to stick to that and to encourage the side of things that, as the noble Baroness, Lady Miller, pointed out, is part of how we have interpreted the whole of that scene, given the no-touching requirements that are part of the lap dancing culture. I hope that the Minister will give serious consideration to this change and meet everybody’s good wishes.
Alas, alas. Noble Lords have made a number of interesting points. The noble Baroness, Lady Miller, suggested that we are using the wrong term by using the term “lap dancing” at all. In that case, what is the Lap Dancing Association doing about it, given that it has chosen to call itself the Lap Dancing Association—an association that represents the owners of these establishments? I suggest that lap dancing, which covers pole dancing and other similar activities, is not an inappropriate name in itself.
As the noble Baroness says, the amendments in the group seek something of the same end. Amendment 83 reflects concerns about the term “sex encounter venue”. If it were accepted, sex encounter venues would not fall under the definition of a sex establishment under the 1982 Act. There is, however, no requirement in the clause for a lap dancing establishment to call itself a sex encounter venue. If it chose to advertise itself as such when it did not provide that, trade descriptions legislation might be a better way of dealing with that. In truth, this is how they are described in licensing terms, not how they are described in public relations or advertising terms.
The point has been made that the word “encounter” could give the impression that lap dancing clubs and similar venues offer sex for sale and by implication stigmatise those who work at such venues. We take this concern seriously. We are aware of our responsibility to those who are employed in the industry not to represent them unfairly and the work that they do. However, we believe that the term “sex encounter” accurately reflects the nature of the entertainment that is provided. We do not accept that the impression is given, or that it will be reasonably assumed, that sex is for sale, particularly as we do not require the term “sex encounter” to be used publicly by the establishment that is so licensed.
We also think that “adult entertainment” would be an inappropriate name as it is not clear, despite what the noble Baroness, Lady Howe, says, that it could apply only to venues that provide entertainment with a sexual content. Other forms of entertainment, such as horror films, have been called adult entertainment, without any obvious sexual content at all.
We are looking at what Clause 26 attempts to target. The definition of “relevant entertainment” is clearly that, to qualify as a sex encounter venue, the entertainment must be,
“any live performance; or … any live display of nudity; which is of such a nature that … it must reasonably be assumed to be provided solely or principally for the purpose of sexually stimulating any member of the audience”.
Where that definition does not apply, such venues will not be classed as sex encounter venues. The definition does not suggest that these are premises where sex is being sold, as criminal law rather than licensing law steps in to deal with those establishments.
The noble Viscount, Lord Bridgeman, made the plea that we should not use the term “sex encounter”. He is much senior to me both in experience and wisdom, and can probably recall the term being brought into effect in 1986 by a Government who are familiar to Members on the Benches opposite. It has been used to define venues such as peep shows in London since 1986. Again, these are not places where sex is for sale, but they are described in legislation as sex encounter venues.
I therefore think that I have explained clearly why the Government believe that the existing name is appropriate for the purpose of regulating lap dancing clubs, and I hope that the noble Lords will not press their amendments.
I listened to the arguments made by Members on both sides of the Committee with great interest, and I thought that the Minister’s answer was pretty miserable. It repeated all the reasons that civil servants give for keeping this kind of wording. As the noble Baroness, Lady Howe, has said, the words “adult entertainment” are known, but the words “sex encounter” are not. If you are told that you are going to a sex encounter place, it is pretty obvious that you expect to encounter sex and have some kind of relationship if you so want it. It is a most disagreeable title, and very misleading. I think the Minister said that if you go to a sex encounter place you could be sexually stimulated, but you can be sexually stimulated without ever having a sexual encounter. The term is most misleading and I hope that he will think about it again.
As people know from when I dealt with the nationality Bill, I am never oversold on particular names if more acceptable names can be found. However, we are looking for a term that describes how this will be dealt with in law, not for a term that will be used on the outside of public houses, lap dancing clubs or anywhere else. Therefore, does it matter?
On the question of what employees would put on their CV, they are not required to put on a CV that they were employed in a sex encounter venue. Presumably they would be happy to apply for employment on the basis of having been employed as a lap dancer in a lap dancing establishment.
I am not entirely happy with the Minister’s reply. The Lap Dancing Association is very concerned about the reputation of its dancers. Unfortunately, if the legislation remains as it stands, a large number of dancers will be stigmatised career-long for truthfully putting this on their CV. This will affect their future employment throughout their careers. I shall look again very carefully at the Minister’s reply, but in the mean time I beg leave to withdraw the amendment.
Amendment 83 withdrawn.
Amendments 84 to 86 not moved.
86A: Clause 26, page 22, line 34, leave out “or” and insert “and”
This is one of a small number of quick groups to probe the definition of “relevant entertainment”, which the Government consider suitable for this type of regulation. The definition in subsection (2)(a) of new Section 2A has several rather surprising characteristics, and I would welcome further explanation of the wording. In particular, the “or” at the end of subsection (2)(a) suggests that a fully clothed dancer could be considered to be sexually stimulating. This seems ridiculous. I do not particularly wish to get into the question of what is sexually stimulating or not, but a significant degree of nudity should surely be part of it. The Bill later defines nudity in an extremely strict sense. Will the Minister say why it was decided to draft the provisions in this way? Would it not be more sensible to have a looser definition of nudity and to rule out any dancing where the performer is fully clothed? I beg to move.
There was quite an interesting example recently of the possible difficulty of definition in a show which some of your Lordships may have seen. It was called “La Clique” and showed on Shaftesbury Avenue. It was, in effect, a series of circus acts. One scene involved a lady taking off all her clothes. It was mostly singing and circus acts, and it should fall nowhere near the definition of the Bill. Everyone who went to see it certainly went along to be entertained, but I would be incredibly doubtful as to whether anyone went along with the idea of being sexually stimulated. Nevertheless, there was stripping and nudity. I do not think that you could call it pole dancing; it was more like rope dancing because it involved trapeze acts and so on. It would be appalling if that sort of show, which was very well known and understood, fell anywhere near the sort of definition that is described here.
The Government always get into a bit of a problem here. The noble Lord, Lord West, did well to stay out of our debates in a previous Committee when we had to discuss sexual stimulation and pornography. I wish that I could stay out of it at the moment. The Government never do well when they get into the question of what is sexually stimulating. The noble Earl, Lord Ferrers, raised a very good point—it is so subjective, it is not a good idea to legislate for it. As far as we can, we should keep the wording of the Bill as objective as possible.
I think that the distinction is not the one made by the noble Viscount—between a fully-clothed dancer and a naked dancer—but I start by assuring the noble Baroness, Lady Miller, that a theatrical performance, such as a play, or a show which is not centrally designed to provide a kind of sex encounter experience as such, but has nudity, dancing and so forth within it, is not meant to be covered, nor is it covered, by the provisions we are discussing today. The purpose of this would be to demonstrate, for example, that the Shaftesbury Avenue show that the noble Baroness referred to was not designed and put on specifically for the purpose of sexual stimulation. The nudity, or whatever, was part of a more general theatrical endeavour which was not for the purpose of sexual stimulation and therefore would fall outwith these provisions.
The amendment would mean that, in order for entertainment to be considered “relevant entertainment”, it would have to be a live performance and a live display of nudity. The present wording of Clause 20 provides that it can be either a live performance or a live display of nudity. The amendment, as has been explained, seeks to ensure that it can be considered as such only if the entertainment is provided by an entertainer who is nude. That represents a significant narrowing of the current definition and would allow lap-dance operators to avoid the tight controls provided by Clause 26 simply by ensuring that performers were partially clothed in such a way that they would not come within the definition of nudity—lap dancers in socks spring to mind. This is different from fully-clothed dancers, although fully-clothed dancers could, in themselves, be sexually stimulating. I take the point of the noble Earl, Lord Ferrers, that in that sense, there is an element of the stimulation which has to be in the mind of the person observing the performance.
Of course, many lap dancers are clothed to some degree—maybe not extensively, but it would be nonsense to suggest that nudity would be sexually stimulating and therefore disbarred and someone scantily clad performing the same kind of activity—pole dancing or lap dancing—would not. We therefore think that the amendment as proposed would create a significant loophole and prevent the reforms we are proposing from properly addressing the concerns of the local communities. The existing definition of “relevant entertainment” recognises that the prevailing factor which should dictate whether premises are sex encounter venues should be the nature of the entertainment provided and not solely whether the performers are nude. It is the performance, not the nudity, which determines whether it is a sex encounter venue. It would be strange to many people if we concluded that a lap-dancing club offering nude entertainment was a lap-dancing venue but the same club offering entertainment of the same nature, but with very scantily clad performers, was not.
We are confident that the existing definition of “relevant entertainment” is correct and will target those forms of entertainment that are of concern to local communities. I trust that I have been able to persuade the noble Baroness and the noble Viscount that the definition goes wider than just whether or not performers are nude and goes to the essential nature of the entertainment being provided, that being the key. I hope, therefore, that the noble Viscount will find it possible to withdraw the amendment.
As the noble Baroness, Lady Miller, has indicated, this House has to be very careful when it ventures into the realms of nudity. We need to look very carefully at the Minister’s reply before coming back with any views on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 86A withdrawn.
86B: Clause 26, page 22, line 36, leave out “, ignoring financial gain,”
Once again, we return to the question of financial gain. I am uncertain how this disclaimer in paragraph 2 relates to the specific requirement in sub-paragraph (1) that the organiser or the entertainer is performing for financial gain. As I understand it, the entertainment is classified as relevant only if someone is financially benefiting, but need it be only the performer? Is this correct? I beg to move.
This is one of the interesting questions that we come back to. I have understood that, in a lot of these clubs, the dancers are not actually paid; they have to exist, basically, on tips. That has been seen as being undesirable for a number of reasons. That is the way that they work at the moment. I do not want to return the Committee to an earlier part of the Bill but that is what makes Amendment 82A, tabled by the noble Viscount, Lord Bridgeman, and referring as it does to conditions of employment for performers, particularly attractive.
As has been said, Amendment 86B would remove the words “ignoring financial gain”. The purpose of including these words in the definition is to account for the fact that, first and foremost, the purpose of sex encounter venues is financial gain. Therefore it is necessary to ignore this aspect of the business when assessing whether the entertainment provided is solely or principally for the purpose of sexually stimulating any member of the audience. Whether it is financial gain to the performer or, more likely, financial gain to the performer and the club owner, there is a requirement to ignore that in order to make a fair assessment of whether the entertainment provided is solely or principally for the purpose of sexually stimulating any member of the audience.
The effect of this amendment would be that, irrespective of the nature of the entertainment provided, premises would not be considered a sex encounter venue as long as the operator could prove that the purpose of the entertainment was solely or principally for gain. Obviously, this would be easily demonstrated, because they are running sex clubs only for gain, and therefore, these provisions would be left ineffective by the inability to cover such venues—hence the need to leave aside the question of gain. The effect of this amendment would be to provide a loophole for sex encounter venues to avoid the need for a sex encounter licence. I expect that this was a probing amendment—at least, I hope that it was—and I hope that I have shown why the inclusion of the provision to ignore financial gain is correct and the undoubted unintended consequences if this phrase was removed. On that basis, I hope the noble Viscount will withdraw the amendment.
Amendment 86B withdrawn.
86C: Clause 26, page 22, leave out line 39
I come to the last of my three probing amendments on the definition of “relevant entertainment”. Amendment 86C probes the inclusion of verbal performance. We seem to be taking the concept of a lap-dancing club to the very extreme where there needs not to be any dancing at all. Indeed, the subsection as a whole would suggest that a person could be paid to stand, dressed from neck to ankle, absolutely still on a stage and, if she sings a racy song, that could count as a sex encounter. It would seem to strike at a lot of the tradition of music hall. Why have the Government decided to include verbal means in this definition? I beg to move.
In moving the amendment the noble Viscount referred to people standing still fully clothed. I thought that we were moving on to the Windmill Theatre, which I think was a forerunner of this kind of entertainment. It required the ladies only to stand still and I do not think that clothes were involved. The noble Viscount raises an interesting point, to which I hope that I am able to respond. The words are important because they make clear that the means used to sexually stimulate the audience can be by word or by other conduct, which could include physical touching or very provocative dancing. This clarification is also included in the existing definition of sex encounter establishments as found in the Local Government (Miscellaneous Provisions) Act 1982.
The Government are confident that the definition introduced in Clause 26 will target those forms of entertainment, such as lap dancing, that are the concern of many communities. The definition will exclude entertainment which is primarily artistic or educational by stating that the “relevant entertainment” must be,
“solely or principally for the purpose of sexually stimulating any member of the audience”.
Hence, the Shaftesbury Avenue show referred to would not be covered by these licences. Artistic performances, such as plays, will not be captured by these provisions even if they contain occasional nudity. There will also be a power to exclude certain types of performer or displays of nudity should that definition prove unintentionally wide. I hope that the explanation given satisfies the noble Viscount and that he will withdraw his amendment.
Perhaps I may check something that the Minister has said. I understood that any form of touching was already illegal. I cannot remember under what provisions that would be so, but I am fairly certainly that touching is not allowed.
The noble Baroness may be correct. Touching a member of the audience could mean touching a member of the audience without physically putting a hand on them. One might have some equipment with which to poke a person—perhaps to wake them up—who is not too stimulated by the lap dancing. I am not sure: I have never entertained myself in a lap-dancing establishment. Certainly, aural stimulation with the use of songs, jokes or whatever at the same time as a provocative performance could fall within this area and that would be covered. That would be necessary to ensure that these regulations are effective.
The Committee will be grateful to the noble Baroness, Lady Miller, for probing the issue of touching. I am grateful for the Minister’s explanation, which I will read carefully and perhaps come back to on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 86A withdrawn.
Amendments 86B to 87 not moved.
88: Clause 26, page 22, line 42, at end insert—
“( ) premises licensed under Part 3, and clubs granted a certificate under Part 4, of the Licensing act 2003 which—(i) authorises “relevant entertainment”; and(ii) has conditions expressly relating to the way “relevant entertainment” is provided during such time that regulated entertainment is being provided;”
I tabled Amendment 88 to highlight the concern among highly regulated venues, which are currently operating under a premises licence, that they are being punished for the crimes of the unregulated sector. My noble friend Lady Hanham touched on this point earlier and I would like to probe the Minister a little further on the reasons behind these provisions, and to raise some concerns about the enormous impact they will have on a significant number of clubs.
The group of amendments after this raises various aspects of the new regulations that will be particularly burdensome. There is a significant danger that clubs that have been operating under the existing licensing regime will struggle to survive the transition to the new regime. Is that the Government's intention? Bleeding a business dry through expensive and complicated regulation seems a very convoluted way of reducing the number of lap-dancing venues in the country. If that is not the Government's intention, why have they not inserted a grandfather safeguard to soften the blow on existing businesses? My amendment would completely exempt existing businesses from the new provisions, but many alternatives could be considered; for example, a staggered timeframe or a presumption that they will at least get their first year's licence. I beg to move.
I am not sure that I can construct from the proposed legislation any circumstance which could be described as bleeding a business dry. The amendment would mean that where a venue has been granted a premises licence or a club certificate to authorise relevant entertainment to take place, provided that there are expressed conditions regulating the lap dancing or other similar entertainment being provided as part of the relevant entertainment, it would not be considered to be a sex encounter venue.
In effect, the majority of lap-dancing clubs—both those with existing licences and those that may be granted licences under the Licensing Act in the future—would continue to be regulated under the Licensing Act and would avoid the tighter controls provided by Clause 26. Such an amendment would render these reforms largely ineffectual and prevent local people having a greater say over the number and location of lap-dancing clubs in their area.
As I stated in response to Amendment 82A, the Government are taking action on the issue of lap-dancing clubs because the controls provided by the Licensing Act have, in the experience of many local authorities, proved insufficient and have not allowed them to address the concerns that such venues pose for many local communities. Therefore, it is the Government’s intention that all venues offering relevant entertainment are regulated under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 to allow local communities to have a greater say about all such venues in their area.
Obviously, we are aware that existing lap-dancing clubs will need to be migrated to the new regime and will need time to apply for a new licence. The transitional arrangements dealing with these issues will be set out in secondary legislation. The Government will publish detailed proposals to that end, and will consult with the industry and other stakeholders on those proposals in due course. I have explained why the Government are not able to accept this amendment and, when we deal with subsequent amendments, I think that we can prove that the fear of bleeding businesses dry is unfounded.
I do not have the absolute answer to that and I will seek it for the noble Viscount. I suspect that the answer is no because we are to start the consultation with the industry. Once the industry has given its views, it will be a question of taking that into account and producing the guidance. But if it is possible, clearly it would be advantageous so to do.
I am concerned about retrospectivity, which is what this is likely to be in terms of the number of venues within an area. If the legislation comes in as it is and there is no long transitional period or carrying forward of the licences that are already granted under the licensing regime, businesses will be concerned that they will be put out of business. A local authority may suddenly decide that it will not continue to have the same number of lap-dancing premises. For example, there may be eight venues in a local authority which says that its number will be reduced to four. What will happen?
We have had lots of discussion about the retrospective nature of other legislation and its impact on businesses that are operating at the moment. The concern is what will happen to, in many cases, very expensive premises. We are talking as if all lap-dancing organisations are complete mavericks. As the Minister knows, some big organisations regulate this business very thoroughly and put a lot of money into it.
The noble Baroness makes a valid point. This is why we want to consult the industry to find out the circumstances and how it sees them before we draw up the regulations. She makes a point that will not be ignored. We are not seeking to ban lap dancing and certainly not to drive out of business respectable organisations that provide this service, meet the criteria and are licensed in accordance with Clause 26. I suspect the migration will have to take account of time and circumstance. If we can produce any further information before Report, then I undertake that we will do so.
My noble friend Lady Hanham and I are grateful for these explanations. Obviously we want to be kept as closely in touch as is practicably possible with the Government’s negotiations with the industry. In the mean time, I beg leave to withdraw the amendment.
Amendment 88 withdrawn.
89: Clause 26, page 22, line 43, leave out from beginning to end of line 14 on page 23
This probing amendment enables us to discuss whether there should be exemptions for clubs that provide lap dancing less than once a month. One could argue the case either way. I am interested to hear your Lordships’ views.
Venues which irregularly hold lap-dancing events could be said to be those most likely to present problems. They will have much less adequate security, they might have invested much less in health and safety and they might present more problems in their neighbourhood. Then again, I would not want to think that a village hall which is laying on a fundraising event and might only do so once a year—or once—is going to be caught in any way by this legislation. This amendment is to examine the pros and cons of having the exemption as drafted by the Government. Did they weigh up the issues such as those I have mentioned about village halls against the fact that, if we are talking about occasional use, they fall outside of the regulation? I beg to move.
The noble Baroness, Lady Miller, makes some good points in this amendment. We agree with many of her concerns about the operation of this exemption. Although I would not want to extend this extremely burdensome regulation unnecessarily, it appears the Government are imposing the strictest conditions on some clubs while allowing others to continue to operate completely free from restrictions.
The exemption as drafted is extremely detailed: no more than 11 occasions; none lasting more than 24 hours; and never more than once a month. The detail is understandable since the Government will obviously want to rule out the travelling circus-type show that was discussed in another place, but the prescription also means that the sort of event that this exemption was intended to apply to risks not being exempted at all.
I understand that the exemption was specifically designed to stop pubs falling into this category of venue—a point made by the noble Baroness—if, for example, a stag party hires a stripper, or a one-off show of the Chippendales comes to town. I would welcome the Minister’s correction if I am wrong on this point. That being so, how is a landlord to prevent a stripper coming into the club more than once a month? He risks serious penalties for something he is likely not to know about at all. I look forward to the Minister’s answers to these points and those made by the noble Baroness.
The noble Viscount is correct in his analysis of why this exemption is in the Bill and why it has these particular ingredients of no more than 11 occasions. The purpose here is to recognise that not all premises that provide relevant entertainments should be classed as sexual encounter venues. He is absolutely right that we do not believe that such premises as, for instance, a pub which hosts a one-off birthday party at which a stripagram has been booked should be regulated in the same manner as lap-dancing clubs that offer entertainment on a nightly basis.
I am not sure I recognise the ability of someone to perform in that manner more than once a month without a landlord or the landlord’s manager knowing about it. In that sense, the responsibility rests with the pub management or rugby club management—or the village hall committee. Most villages I know would be up in arms at the thought of village halls being used for those purposes. Maybe I live in a gentler part of the country in the north.
Premises that hold such infrequent events will continue to be regulated under the Licensing Act 2003 and will not require a sex establishment licence. This provision is important to ensure the reforms are dedicated to lap-dancing clubs for gain and venues providing similar entertainment on a regular basis. We were made aware during the debate in the other place that there was a fear that we could have “lap dancers on tour”, who would move from venue to venue, keeping strictly within the 11 performances by moving around a large number of establishments, pubs and clubs in a short period. We doubt that is the case, but we would be worried if using temporary event notices to hold lap-dancing events in venues operated in such a manner. Therefore, we are making provision that that is not an unintended consequence. There is not sufficient evidence to suggest these concerns will materialise but we will have a limited order-making power to allow the Secretary of State to tighten the exemption or remove it altogether should it be clear that it has been exploited in that way. This has the right balance between stopping events, whether fundraising or other, of a nature that do not constitute regular performance of lap dancing and stopping events from those business organisations that do. I invite the noble Baroness to withdraw her amendment.
I thank the Minister for his reply. As somebody who hardly ever goes north of the line across from the Wash, I could not possibly comment on what happens in the north—although I remember seeing the film “The Full Monty”, which suggests that occasionally such things happen there. I am sure the Minister will tell me that “The Full Monty” would not be caught by this either—unless he tells me different. It is certainly stripping but would probably not fall within the Bill. He is nodding, so that will be a relief. He has provided an explanation of when this will take hold—or not. I am satisfied with that and beg leave to withdraw the amendment.
Amendment 89 withdrawn.
90: Clause 26, page 24, line 30, at end insert—
“( ) In paragraph 9(1) (duration of licence) after “paragraph 16” insert “or 27A below”.”
Amendment 90 and Amendment 102 in the name of my noble friend Lord West are minor, technical amendments seeking to ensure, once premises have been granted a sex establishment licence in order to operate as a sex encounter venue, that they will be deemed to be a sex encounter venue for the duration of their licence, irrespective of how frequently entertainment is provided.
The amendments are required to avoid premises obtaining a licence then claiming that they are not a sex entertainment venue, either because they desisted from the provision of such relevant entertainment or, at the time in question, they were operating within the conditions of the exemption of infrequent events provided by Clause 24(3)(b). This is necessary as, in order to use some of the powers available in Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, local authorities and the police must establish whether a premises was a sex establishment at the time in question. In the event of ceasing to provide relevant entertainment and no longer wishing to be subject to the conditions of a sex establishment licence, a licence-holder can write to the local authority and request that the licence be cancelled.
Amendments 161 and 162 to Schedule 7 are consequential amendments to clarify the relevant entertainment provided by venues that are deemed to be sex encounter venues. By virtue of these amendments —I am sorry, I will read that again. Amendments 161 and 162 to Schedule 7 are consequential amendments to clarify the relevant entertainment provided by venues that are deemed to be sex encounter venues by virtue of these amendments—I shall read it a third time and I might be able to make sense of it. Amendments 161 and 162 to Schedule 7 are consequential amendments to clarify that the relevant entertainment provided by venues that are deemed to be sex encounter venues by virtue of these amendments is not to be considered to be regulated entertainment for the purposes of the Licensing Act 2003. This means that such venues do not need a premises licence in order for lap dancers or stripagrams to perform their routines or for music to be played for them to dance or perform to. They will still need a premises licence for the sale of alcohol. I beg to move.
These government amendments are welcome because they improve the clarity and drafting of the Bill and address many of the concerns expressed in the last debate. Although many venues are dedicated to adult entertainment, there are others where the distinction between a bar and a relevant venue is not nearly as clear. We still have concerns about the exemption provisions and the definition of “relevant entertainment”, and we feel that these leave much to be desired. We shall pay attention to these before we come back at the Report stage.
Amendment 90 agreed.
91: Clause 26, page 24, line 30, at end insert—
“( ) In paragraph 9(1) after “any licence” insert “apart from a licence in respect of a sex encounter venue,”.”
These two probing amendments have been tabled with the intention of discovering how the Government came to decide that the annual renewal of licences is reasonable. It seems to be a fair burden on businesses to have to renew their licences each year, and it is also quite an administrative burden on a local authority with a lot of clubs. We do not want this to become in any way an exercise in rubber-stamping just to get through the volume of business. Amendment 91 would exclude licences granted in respect of sex encounter venues from the provisions that such licences should be renewed on an annual basis. As I say, the amendment is probing in nature to discover whether a biannual renewal period would be more reasonable. An annual renewal period seems a little more frequent than necessary, but I am sure the Minister has an explanation. I beg to move.
The noble Baroness has raised what is probably one of the most burdensome aspects of these regulations for the businesses concerned. They are to move from operating under perpetual licences that do not have to be renewed on a regular basis to being expected to apply annually for a licence. In some cases, a great deal of money is charged for these licences each time an application is made. There is also the possibility of an arbitrary refusal, and we have not yet come to the point of discussing what a refusal would be based on and why a local authority might not accept the renewal of a licence, which would take into account the number of clubs in a particular area. The possibility of an annual renewal period will be a great shock to many premises, and I know that the Lap Dancing Association is extremely concerned about this. I am sure that the Government have received many representations on it.
We understand that this system has been in operation for sex shops and cinemas, but does not the Minister agree that those venues can adapt their services far more cheaply and rapidly than, for example, lap-dancing venues that by nature rely on large and expensive premises with significant facilities? I understand that the DCMS Select Committee agreed with the lap-dancing industry that the licence period should be longer, suggesting five years. Can the Minister tell us why that recommendation was not accepted?
As the noble Baroness indicated, the concerns of the lap-dancing industry have been made clear to the Government. It fears that the annual renewal process will be overly burdensome and, indeed, may in some instances be used by local authorities to remove licences without cause. The Government do not believe that this will be the case. The regime has been in force for over two decades for a number of venues such as sex shops and sex cinemas, and while it is true that the conversion costs may be less for those businesses, there do not seem to have been any problems. We see no reason to believe that local authorities will refuse to grant or renew a licence to a responsible operator that only a year previously had been issued a licence unless it has good reason for so doing.
It is therefore the Government’s view that these amendments would significantly weaken the impact of the reforms being introduced in Clause 26, which will reclassify lap-dancing clubs as sex establishments, recognising that they offer entertainment which is fundamentally different from other entertainment venues such as nightclubs and pubs. Such venues often raise particular concerns for local communities. For this reason, we believe that the ongoing scrutiny created by the need for a lap-dancing club to renew its licence on at least an annual basis is justified. The renewal process will provide local people with the opportunity to make further objections, if such objections exist, thereby empowering people to ensure that local authorities can be responsive to their views. I hope that this explains clearly why the Government have proposed these provisions and do not feel able to accept the amendment, and I trust that the noble Baroness will feel able to withdraw it.
When will we have sight of the reasons why a local authority can object to or refuse a licence? I am trying to balance in my mind whether we are dealing with a moral issue here or one of practical concern. By and large, as I understand it, all these clubs are pretty well regulated. There may be those that are not, but if that is the case, we ought to know what objections are being made. All the entertainment takes place inside the building and the codes of conduct certainly make it clear that nothing should happen outside. I am told that everyone agrees that very few complaints are lodged because such venues cause trouble externally. I am concerned that we have spent an awfully long time talking about these establishments today and are now considering an overly burdensome regulation, and I wonder if we are doing this because it is a moral issue rather than on the basis of resolving a practical difficulty.
I know people will say that they do not want a lap-dancing venue in their area, and that is fine, but for those that are already there, presumably someone is going to have to demonstrate that they have caused trouble. Will the Minister confirm that?
The objections that have successfully been made but had to be denied in the light of the Licensing Act 2003 and its four distinct provisions include seeking to open a lap-dancing club in a wholly residential area, which was seen by many local people to be undesirable; the suggestion of opening lap-dancing clubs near schools, which may be a moral issue—I am not sure; and opening lap-dancing clubs near or adjacent to religious buildings.
The licence may not be renewed for a range of reasons set out in paragraph 12(3) of Schedule 3 to the 1982 Act and include, for example, that the applicant is considered unsuitable. I understand the concern of the Lap Dancing Association in relation to the members it represents, but there are upwards of 300 establishments and considerable concern has been expressed about the inability of local residents to have the local authority take notice of their objections. That is not say that the views of residents will override those of the local authority because it has wider responsibilities which, as the noble Baroness knows better than I, it takes very seriously. So I would not have thought that the proposal we are putting forward for an annual inspection need be too onerous, too expensive, or likely to bleed any business dry.
The trouble is that the noble Baroness, Lady Hanham, is absolutely right that this onerous renewal—the Minister did not disabuse me of the idea that it is onerous—is more about a moral crusade than a practical approach to the problem. The first time the club applies for a licence, the issue of the locality, which we shall discuss shortly, and whether it was near a school, and so on, would be very important. As those issues would have been dealt with already, annual renewal sounds too often. The Minister is ignoring some of the evidence given to the DCMS Committee of the other place by Chief Inspector Studd of ACPO who was talking about the low risk of these venues from a public order perspective. He said:
“There is no evidence that they”—
“cause any crime and disorder. Very rarely. They tend to be fairly well run. They tend to have a fairly high staff ratio to customers. The people who tend to go there tend to be a bit older so they do not drink excessively and cause the crime and disorder problems outside”.
Of all the things that local authorities have to license, on that evidence given by a representative of ACPO, these sound to be pretty mild. It is quite surprising that the Government want to put that level of burden on local authorities and on the clubs themselves. I suspect that we shall come back to this on Report, but in the mean time I beg leave to withdraw the amendment.
Amendment 91 withdrawn.
Amendment 92 not moved.
93: Clause 26, page 24, line 36, at end insert—
“( ) In paragraph 12(5)(a) after “locality” insert “within the area defined by section 2”.”
I want to probe exactly what is meant by “locality”, particularly when an urban area has a boundary that is very close to the next authority. That would certainly be the case here in London, and we shall listen carefully to the views of the noble Baroness, Lady Hanham, on this. It is very important to define locality, but the Bill leaves it very loose. Does it mean that views should be taken from the neighbouring authority if the neighbours are affected? What if the club intends to open in one place and just down the road but over the border, there is a school? I beg to move.
My Amendment 94 is grouped with this. I want to probe the transition from the current regime to one in which these provisions will apply. I am concerned about the idea of quotas in the lap-dancing industry. The quota could be set below the existing number of venues in an area. The noble Baroness, Lady Miller, raised the point about what is an area when it straddles a boundary? Do local authorities have to come to an agreement on that? Given that some dissatisfaction with the licence has to be found on grounds other than the number of them, it is extremely likely that some local authorities will actively seek to chop away at the number of venues using the quota as a guillotine. It is important to know how these quotas will work particularly, as I have already touched on, in relation to establishments that are already there and may be in excess of a quota advised by a local authority, or two local authorities, in the context of this debate. Perhaps we can dig a little further on what the quota system and its implications are likely to be.
Under the proposed new regime, local authorities can refuse to grant a licence to a lap-dancing club on the ground that it would be inappropriate, having regard to the character of the relevant locality, or on the basis that a number of such venues in the locality is equal or exceeds the number that the local authority considers appropriate. Amendment 93 would define locality as within the local authority area where the premises are situated. That could prevent a local authority considering the locality that surrounds the premises but which happens to fall in another local authority area when deciding whether it is appropriate to have a sex encounter venue located in a particular site. The amendment could also prevent local authorities drawing distinctions within their own areas when judging whether it is appropriate to have a sex establishment in the location.
If premises happened to be situated on the boundaries of two local authority areas, we consider it appropriate that the local authority handling the application can consider the whole locality, even if it straddles two local authority areas. It would seem odd, for example, if a locality adjacent to such premises were in a residential area or contained a school, but because it fell under the jurisdiction of another local authority, the one handling the application could not take some matters into account when deciding whether to grant a licence. It is a common-sense approach.
Given the diversity of many local authority areas, ranging from busy high streets to residential areas, the Government believe that local authorities should set the different limits on the number of sex establishments appropriate to the different localities. For example, a local authority may decide that a particular locality in a city centre is an appropriate location for a limited number of lap-dancing clubs, while a suburban, residential area is not suitable for any sex establishments at all. The amendment would remove that flexibility.
Amendment 94, tabled by the noble Baroness, Lady Hanham, would omit paragraph 12(4), which states that the local authority can set the number of sex establishments that it considers appropriate for a particular locality at nil. The Government believe that paragraph 12(4) is useful as it makes clear to all parties that local authorities are fully within their rights to determine that certain areas are entirely inappropriate for the location of sex establishments. In other words, being able to set the limit at nil allows local authorities to prevent sex establishments opening up in areas that are deemed wholly unsuitable, having regard to the nature and character of the locality.
For example, a local authority may decide that it is inappropriate to have any sex establishment in an area that is overwhelmingly residential, or where schools or religious buildings are located. To ensure that local authorities can respond to the concerns of local communities, the Government believe that they must retain their flexibility to manage sex establishments that the amendments would remove. I hope that I have been able to persuade the noble Baroness that the amendment would have odd, perhaps unintended consequences and would decrease valuable flexibility.
On the question of the number of establishments that will be in a local authority area, it will be a matter for the local authority.
Does the Minister agree that this would be absolutely fine if we were working from a clean sheet of paper, where no lap-dancing clubs existed and it was a completely new set-up? The reality is that lap-dancing clubs already exist. They are licensed to some extent, and the local authority knows they are there. It goes back to the question on which we touched before that if the local authority suddenly decides that it will agree to eight or three establishments, and one is an area where they will now be prohibited, what will happen to that business? Will it have to cease operating or can we ensure within the legislation that there is a proper way of it carrying on until a certain number is reached? That cannot happen if the local authority says that there are to be no lap-dancing clubs in its area at all.
We have to accept that these businesses exist; we cannot pretend that they do not. I suppose that we can say it in legislation, but should we say it: that some premises will have to be put out of business because of the number at issue? Whether I agree with the type of business or not is irrelevant. It is extremely important to be fair and just. Is it fair to leave it open to doubt whether a business has to go out of business because it is deemed to be over and above the local authority numbers?
The noble Baroness raises an important point and she makes it well, but I have already explained that the transitional arrangements will be set out in secondary legislation and that we are consulting the relevant stakeholders, including the Lap Dancing Association, on that legislation. I do not want to pre-empt the consultation but I have given assurances already in relation to another amendment that if any information arrives before Report stage I shall seek to make it available.
The trouble is that that consultation, coming, as it does, so late and with us having to look at these amendments now, will not help us in deciding whether the legislation is adequately drafted. On the points raised by the noble Baroness, Lady Hanham, about how local authorities are going to prioritise, the last thing we want to do with this legislation is to allow unsatisfactory licensed clubs to up their game a bit, become more satisfactory and get the quota, while better places do not. I can see the Minister is becoming frustrated by this argument. I shall simply ask him when he expects the results of the consultation: is there any chance that by the time we get to Report, probably sometime in October, we might have the results?
I have already answered the noble Baroness’s question: I do not know; it will depend on the degree of consultation and the degree of vehemence and argument of the stakeholders who are being consulted. If there is any information I shall seek to make it available before that stage. My frustration is not with the noble Baroness and the comments she makes but with what seems to be missing from the discussion. This is predicated on giving local people and local authorities more control over what is desirable in their areas. The consequences of avoiding a licensing provision—we do not have one—will be that the number of lap-dancing clubs, good or otherwise, will become a local authority issue and the transitional arrangements will have to address the migration from the old regime to the new one. I cannot add any more than that.
I do not want there to be any misunderstanding. I fully understand the need to keep local people involved—that is not the problem. Under whatever legislation we do this, local people must have their say. What I am worried about is a club which has had no objections—no one has bothered about it and it is in the right place—which is over the quota.
With respect, that is a matter for the local authority, which will determine the quota. It is a circular argument. Unfortunately, as we are trying to enable local authorities to take greater account in a way that they cannot do under the Licensing Act 2003, I can add nothing to the argument other than to repeat my offer to make available to noble Lords any additional information in respect of the consultation or the guidance that comes to us before Report.
With that reassurance and the thought that the noble Baroness, Lady Hanham, and I may get together and think about her amendment which looked at the Licensing Act and strengthened the arm of local authorities, I beg leave to withdraw the amendment.
Amendment 93 withdrawn.
Amendments 94 to 96 not moved.
House resumed. Committee to begin again not before 8.34 pm.