A DECISION to ban sexual entertainment venues in Scotland's capital has been quashed in court.
The City of Edinburgh Council voted to set the maximum number of venues in the city at zero last year, which was set to be implemented in April despite serious concerns expressed by sex workers who would be out of a job.
Campaigners from the United Sex Workers (USW) union forced a judicial review on the move and in the Court of Session in Edinburgh on Friday, Lord Richardson decided councillors had made the call on the "basis of erroneous legal advice" after a two-day hearing.
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.”
The law firm representing USW, Gilson Gray, said it was a "fantastic" result.
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Rosie Walker, partner and head of litigation, said: "This is a fantastic and very well-deserved result. I am delighted for the USW and all its members.
"They were incredibly brave to take on this fight to protect their livelihoods and were determined to see it through despite the many challenges put in their way.
“City of Edinburgh Council tried very hard to prevent USW from joining the action and attempted to block the Protective Expenses Order granted by the court.
"However, at the end of the day, the court has agreed with our argument that the nil-cap was unlawful and the council will now have to look at the decision again.
“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 court held the council's regulatory commitee wrongly determined the effect of the nil-cap and this rendered its decision unlawful.
The council tried to argue the challenge was premature because, after proceedings were raised, the council voted to present a fresh report on the nil-cap policy.
Walker added: "The court also held that the council’s prematurity argument was not well founded and that our challenge could proceed, which is a highly positive decision for USW and its members.”
Steve MacDonald, a spokesperson for the Club Operators Action Group, also welcomed the court's decision.
He said: “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."
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.
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).”
A City of Edinburgh Council spokesperson said: “We have received the ruling of the judicial review which we are considering in detail before deciding on our next steps.”
