Edinburgh councillors have the right to set the maximum number of sexual entertainment venues at zero, the city council’s lawyer has told a judicial review into a policy which will effectively ban strip clubs.
A City of Edinburgh Council committee voted in March for a nil-cap on sex establishments – a policy set to be implemented next April that the city’s strippers fear will put them out of work and has left venues concerned for their future.
They have taken their fight against the policy to the Court of Session in Edinburgh, where Lord Richardson was told by Christine O’Neill KC on Friday that the council has the right to set the cap at zero.
During her submission in the second day of hearings, she said it was because, in part, the Scottish Parliament had set out a legislative duty to determine the appropriate number from time to time, and that “Parliament also provided the number may be zero”.
She said while it is currently set to zero, the number could be revised in future meetings. There is one such meeting pencilled in for February, the court was told.
The judicial review has been told there has not been sufficient explanation for the zero policy, but O’Neill said in these circumstances there does not need to be one because it is not a specific licensing application.
“This is a policy decision taken in context of a debate among elected representatives as to their view and appropriate way forward, not a determination of an individual application,” she told the court, adding that in individual licensing cases, of which this is not one, applicants would have to be told in writing why they had been refused.
Venues in the city are being represented by Aidan O’Neill KC, while David Welsh has argued against the policy on behalf of the United Sex Workers (USW) union.
Welsh told the judicial review on Thursday the policy would impede on strippers’ rights, and a ban would see dancers struggle to pay their rents, push them into debt, and break up with their partners because they have to move city to work.
Of the nil-cap policy, he said: “If you want to stay in Edinburgh, you have to do another job, if you want to do the job you have chosen to do, and works for your lifestyle and circumstances, you have to work somewhere else.”
But the hearing on Friday was told by O’Neill she believed that argument could not be advanced.
She said Article Eight - the respect for private life, family life, home and correspondence - would not be infringed by the decision to set the appropriate number at zero.
“There’s a loss of flexibility, there may be a loss of income, but in my submission that does not result in an Article Eight breach and, if it were to, it would have significant consequences for a wide range of regulatory regimes,” the court heard.
The court heard of the rebuttal of presumption policy for strip clubs with the cap being set to zero, but O’Neill said that the “decision was a ban”.
Earlier this year, USW raised money to fund the judicial review.
The decision made by the city’s regulatory committee in March was a knife-edge five-to-four vote in favour of setting the cap at zero.
Councillors had the option of setting the cap at four, keeping all the clubs open, but this was rejected during the two-and-a-half-hour meeting.
Lord Richardson said his decision was likely to come in the new year.
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