Judge Lord Richardson ruled on Friday that an Edinburgh City Council decision to stop awarding licences for adult venues - the so called nil cap - was unlawful.

In a judgment issued on Friday, Lord Richardson concluded that councillors had been given been given incorrect legal advice about the impact of their March 2022 decision.

The representatives believed that the council could still award licences on adult entertainment venues on a discretionary basis.

Judges have ruled in favour of adult entertainment venues

However, lawyers for four Edinburgh based businesses - including the Burke and Hare, the Western Bar and Diamond Dolls - believed this was incorrect and that the decision meant that their venues wouldn’t be allowed to operate.

A legal team acting for United Sex Workers, a branch of the United Voices of the World Union, agreed with the views of the businesses.

The labour rights organisation claims the city council’s decision puts the jobs of 100 women at risk.

Lawyers for the organisations addressed Lord Richardson at the Court of Session in Edinburgh in December 2022.

And on Friday, Lord Richardson ruled in their favour and overturned the policy.

In the judgment, Lord Richardson wrote that the council had received wrong legal advice before adopting the policy. He said the council’s belief that it could still award licences to venues on a discretionary basis was incorrect. He concluded that the decision meant that adult venues in Edinburgh Would be banned.

Lord Richardson also said that the policy may not have have been adopted if council legal officials had given the correct advice.

He wrote: “It follows that the respondent’s officials erred in the advice that was given to the Regulatory Committee.

“That Committee was wrongly advised that in the event that it made a nil determination.. that would not constitute a ban on SEVs.

“I have also considered both the transcript of the Committee meeting which took place on March 31 2022 and the minutes of that meeting.

“It was apparent to me, unsurprisingly perhaps, that the Committee’s discussion took place within the framework of the advice which the Committee had been given.

“Taking this all into account and bearing in mind that the resulting decision was the result of vote which split the Committee 5:4, it was far from plain and obvious to me that, had the Committee been correctly advised as to the impact of a nil determination, the resulting decision would have been the same.

“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 process which has been entrusted to the respondent.

“In light of my decision, in light of the respondent’s error in law, I will sustain the petitioner’s first and fourth pleas in law, grant declarator as first concluded for and reduce the respondent’s Decision dated March 31 2022.”

At proceedings last year Aidan O’Neill KC told judge Lord Richardson on Thursday that the council’s decision was unlawful.

Mr O’Neill, who was acting for the businesses, said that the proposed move needed to be stopped and that the businesses had a right to operate.

Urging Lord Richardson to overturn the decision, Mr O’Neill said: “In the present circumstances, the pursuers are being told ‘you have four months to operate’. You are giving them four months notice.

“This is causing the pursuers prejudice.

“They have to operate in a climate of economic certainty. They must be able to make decisions regarding employment, refurbishment on the basis of economic certainty.

“With this decision, you are causing businesses to close down.”

Advocate David Welsh, who was acting for the United Sex Workers Union, said the proposed policy would force women into poverty.

He said: “In four months time they will not have jobs. My lord will see from the affidavits that they say things like ‘I don’t have a job’, ‘I can’t pay my rent’, ‘I can’t look after my children’, ‘I will have to move away from Edinburgh’, ‘it’s the only job I want to do in Edinburgh’.”

Referring to a sworn statement provided to the court by one dancer, Mr Welsh added: “You will see how she struggles to pay her rent, she struggles to care for her family, she will go into debt, she will have to get another job, she will have to move away from the city and she will have to split from her partner as he is unable to leave Edinburgh.”

Lawyers for Edinburgh City Council said the policy didn’t amount to a ban and it allowed the local authorities to grant licences on a discretionary basis.

But Lord Richardson concluded that the impact of the decision meant that it did result in a ban on adult entertainment venues.

He wrote: “Turning to consider the detail of the policy statement agreed to by the respondent’s Regulatory Committee on 31 March 2022, one is confronted with an immediate problem: namely, the policy statement is fundamentally inconsistent with the true legal effect of the nil determination of the appropriate number of SEVs which the respondent made.

“This is because the policy statement proceeds on and enshrines the same erroneous legal advice contained in the report prepared for the Regulatory Committee and which formed the basis of the respondent’s position in these proceedings.”

Lord Richardson has reserved questions of expenses until a future hearing which is yet to be arranged.

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