Edinburgh’s strip clubs will stay open after a judge ruled the city council’s bid to ban them was unlawful. Strippers had been left fearing for their futures in the trade after the City of Edinburgh Council brought in what it described as a nil-cap policy last year – an effective ban on sexual entertainment venues (SEV).
Clubs in the Scottish capital, alongside strippers themselves, launched a judicial review in a bid to quash the policy set by the authority’s regulatory committee, and on Friday Lord Richardson ruled it was unlawful. In his 82-page judgment, Lord Richardson said: “The committee was wrongly advised that in the events it made a nil determination… that would not constitute a ban on SEVs.”
Strippers welcomed Lord Richardson’s ruling, which came after a two-day hearing at the Court of Session in December. Rosie Walker, partner and head of litigation at Gilson Gray, which acted for the United Sex Workers (USW) union, said it was a “fantastic and very well-deserved result”.
She added: “If it had been upheld, the council’s nil-cap decision would have resulted in the closure of all strip clubs in the city. That would have meant many of USW’s members losing their livelihoods or having to move away from their homes and families to find work elsewhere.”
The city’s strippers told councillors at the March 2022 regulatory committee meeting about their fears if they pushed ahead with the nil-cap policy. Concerns were raised that the ban would push the trade underground and force strippers into prostitution, making it less safe for women, but it was approved by a five to four vote.
After the decision, which prompted fury among workers and even saw an Edinburgh Fringe burlesque act become part of the campaign to save the venues, a fundraising drive was launched. During the judicial review, the council had argued the nil-cap policy did not ban the clubs but set a level it deemed appropriate, and allowed a rebuttable presumption.
But Lord Richardson said the council would just look at the number of sexual entertainment venues in the area and then at the number it deemed appropriate, currently zero. “In the event that the first number is equal to or greater than the second number, then the ground will apply and, as a consequence, the local authority must refuse the application,” he said.
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The Court of Session heard the council argue the nil-cap policy could be revised upwards. Lord Richardson said the council did not put forward “a good reason why the erroneous decision should not be quashed”, and added that the regulatory committee was “clearly advised that making a nil determination would only create a ‘rebuttable presumption’ which could ‘ultimately’ result in closure of existing premises”.
He went on to rule: “I do consider that there is a realistic possibility that, properly advised, a different decision may have been taken. It seems to me that, were I to decide otherwise, I would be trespassing on the decision-making which had been entrusted (to the council).”
Steve MacDonald, spokesman for the Club Operators Action Group, welcomed the decision. “We look forward to working with the regulatory committee and the licensing board in continuing to provide a proven safe working environment for all our staff members, customers and particularly our performers,” he said.
A City of Edinburgh Council spokesman said: “We have received the ruling of the judicial review which we are considering in detail before deciding on our next steps.”
