By Jack Cummins

A SENIOR judge has quashed Edinburgh City Council’s sexual entertainment venue (SEV) licensing policy. 

It’s yet another milestone in the history of activists’ attempts to impose a complete ban on lapdancing clubs.

First of all, a recap on the background. 

For more than two decades campaigners have fought to close down these forms of entertainment on the basis that they amount to the exploitation of women – and might even put them at risk of harm. 

Back in 1999 Glasgow Licensing Board rejected an application for a club seeking to provide “table dancing”. 

In their written decision, the board said that the sale of alcohol and the activities that would take place in the club could give rise to “irrational and sometimes violent and anti-social conduct” – even “violent conduct” of a sexual nature. 

But while the board reached that conclusion based on their “background knowledge and experience”, the decision fell apart in the ensuing appeal  –  simply because there was no evidence to support what was, in effect, no more than speculation.

In an odd twist, a few years later a differently constituted Glasgow board granted an application for a lap-dancing club, despite an objection by Glasgow City Council. (The board and the council are of course separate legal entities.) 

The decision survived the council’s appeal to the Sheriff, with the board and council being represented by separate legal teams. 

Then, in 2009, the board failed in a bid to prevent the operation of the Spearmint Rhino club in the city – the “Brightcrew” decision that was almost certainly the catalyst for legislation allowing councils to regulate the provision of adult entertainment. 

Following amendments to the Civic Government (Scotland) Act, 1982, from 1st April this year SEVs require to be licensed in order to continue operating. 

Councils are required to have in place a licensing policy statement which will include their determination of the appropriate number of SEVs.

Here’s a tale of two cities with starkly contrasting approaches. 

In March last year Glasgow City Council decided on a ‘zero limit’, but effectively awarded ‘grandfather rights’ to the existing venues, leading to licences being granted to Seventh Heaven, Diamond Dolls and Platinum Lace. 

Over in Edinburgh the approach was entirely different with the city’s policy setting a ‘nil cap’ on licences with no continuation rights – looking like an outright ban that would lead to a substantial number of job losses. 

There were also fears that venue workers might be employed in unsafe, unregulated environments if the well-run adult venues in the city shut their doors. 

Edinburgh would still be obliged to accept applications for licences with each considered on its merits – but it was near impossible to see how any could succeed. 

Three SEV operators launched crowd-funded judicial review proceedings in the Court of Session, joined by a member of a club’s security staff and the United Sex Workers (a trade union) as an ‘additional party’ to the challenge. 

The hearing raised a raft of highly-complex legal issues, including arguments based on the European Convention on Human Rights. 

However, in his 82-page judgment Court of Session judge Lord Richardson “reduced” the council’s policy – that is to say, set the policy aside – on a straightforward, narrow basis: it failed to provide any explanation of or reasons underlying the ‘nil’ cap and, crucially, they had “erroneously considered that by making the nil determination they were not imposing a ban on SEVs”. 

Edinburgh will now launch a new policy consultation. 

I think it likely that we may see an outcome allowing the continuation of the existing business – or might there be yet another twist in the saga?

Q&A with Jack Cummins

Q: I’m heading towards retirement and planning to lease my pub to a senior member of my staff. What should I be thinking about in terms of licensing? 

A: A question arises as to whether a landlord should hold the premises licence or allow it to be transferred to a tenant but the latter course poses a substantial danger. If there’s a fall out, it’s simply impossible to prevent a tenant surrendering the licence if he or she is minded to do so.

I’ve been involved in a number of cases where that has happened – with inevitably calamitous consequences. So, it’s normal for the landlord to keep hold of the licence, but that too carries risks. If the premises aren’t properly managed and come to the adverse attention of the police, it’s the landlord who is accountable in the event of a licence review.

In that situation, licensing boards will have absolutely no time for a landlord who adopted a hands-off approach. It’s therefore vital that landlords keep a very close eye on how the premises are being run.

Q: I’m about to overhaul my restaurant’s wine list and would be grateful for clarity on pricing. We’ll continue to sell wine by the glass, but it will be cheaper to buy a whole bottle. Is that allowed under licensing laws?

A: There’s no problem with that approach but always provided that there’s no attempt to incentivise the purchase of a bottle. The Licensing (Scotland) Act 2005 bans a promotion which involves encouraging, or seeking to encourage, a person to buy or consume a larger measure of alcohol than the person had otherwise intended to buy or consume. I suppose there might be a quibble as to whether a bottle is a “measure” but my advice would be to stay away from that sort of practice.