BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> KAAGOBOT LTD AND OTHERS AGAINST CITY OF EDINBURGH COUNCIL AND UNITED SEX WORKERS [2023] ScotCS CSOH_10 (10 February 2023)
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_10.html
Cite as: 2023 GWD 5-59, [2023] CSOH 10, 2023 SLT 243, [2023] ScotCS CSOH_10

[New search] [Context] [View without highlighting] [Printable PDF version] [Help]


OUTER HOUSE, COURT OF SESSION
[2023] CSOH 10
P531/22
OPINION OF LORD RICHARDSON
in the cause
(FIRST) KAAGOBOT LIMITED;
(SECOND) Y11JTR LIMITED;
(THIRD) NETHERVIEW LIMITED;
(FOURTH) PIOTR ARKADIUSZ SZULC
Petitioners
against
CITY OF EDINBURGH COUNCIL
Respondent
and
UNITED SEX WORKERS, a branch of the UNITED VOICES OF THE WORLD TRADE
UNION
Additional Party
Petitioners: O'Neill KC; Balfour + Manson LLP
Respondent: O'Neill KC, Solicitor Advocate; Blair; Brodies LLP
Additional Party: Welsh; Gilson Gray LLP
10 February 2023
Introduction
[1]
On 31 March 2022, the respondent's Regulatory Committee resolved that Schedule 2
of the Civic Government (Scotland) Act 1982 would apply within the City of Edinburgh for
the purpose of licensing Sexual Entertainment Venues ("SEVs") from 1 April 2023. The
2
Regulatory Committee determined further that the appropriate number of SEVs within the
City of Edinburgh was to be nil (the "Decision").
[2]
The first to third petitioners all operate SEVs with the City of Edinburgh. The fourth
petitioner is a Polish national and EU citizen. He currently works for the first petitioner as
part of its security staff at its Edinburgh premises.
[3]
The additional party is a trade union. In particular, the membership of its branch,
the United Sex Workers, is predominantly comprised of strippers and other sex workers.
The additional party's membership includes at least 12 women who currently work at SEVs
within the City of Edinburgh. By interlocutor dated 12 September 2022, I granted the
additional party leave to enter the process. By subsequent interlocutor dated 21 September
2022, I granted a Protective Expenses Order in favour of the additional party. It was a
requirement of my granting leave to the additional party to enter the process both that it
should advance its submissions primarily in writing and that it should be given only limited
time orally to supplement those submissions at the first hearing.
[4]
In the present proceedings, both the petitioners and the additional party seek th e
reduction of the respondent's Decision on a number of grounds. The petitioners also seek an
award of damages against the respondent as just satisfaction for the contended breach of
their rights under Article 1 of the First Protocol of European Convention for the Protection of
Human Rights and Fundamental Freedoms.
[5]
At the first hearing on 1 and 2 December 2022, I heard argument on the challenges
raised by the petitioners and the additional party to the respondent's Decision . The parties
were agreed that all issues relating to the petitioners' damages claim should be reserved
meantime pending the result of the first hearing.
3
Background ­ the Air Weapons and Licensing (Scotland) Act 2015
[6]
The first to third petitioners have each been operating SEVs within the City of
Edinburgh for a number of years. These venues are also premises licensed for the sale of
alcohol. At these venues, female performers work on a self-employed basis. This entails
both stage performances and performances for individual customers. These SEVs were
operated in cooperation with the licensing standard officers and the respondent as local
authority.
[7]
Following section 76 of the Air Weapons and Licensing (Scotland) Act 2015 fully
coming into force, local authorities like the respondent were given the power to resolve that
SEVs in their areas would be subject to the licensing regime detailed in Sections 45A to 45F
and Schedule 2 of the Civic Government (Scotland) Act 1982 (as amended). It was pursuant
to this legislation that the respondent made the resolution and determination on 31 March
2022 which are the subject of the present proceedings.
[8]
The relevant legislative provisions are in the following terms:
"45A Licensing of sexual entertainment venues: interpretation
(1) This section applies for the purposes of the interpretation of section 45B and
Schedule 2 (as modified for the purposes of section 45B).
(2) `Sexual entertainment venue' means any premises at which sexual entertainment
is provided before a live audience for (or with a view to) the financial gain of the
organiser.
...
45B Licensing of sexual entertainment venues
(1) A local authority may resolve that Schedule 2 (as modified for the purposes of
this section) is to have effect in their area in relation to sexual entertainment venues.
(2) If a local authority passes a resolution under subsection (1), Schedule 2 (as so
modified) has effect in their area from the day specified in the resolution.
4
(3) The day mentioned in subsection (2) must not be before the expiry of the period
of one year beginning with the day on which the resolution is passed.
(4) A local authority must, not later than 28 days before the day mentioned in
subsection (2), publish notice that they have passed a resolution under this section.
(5) The notice must-- (a) state the general effect of Schedule 2 (as modified for the
purposes of this section), and (b) be published electronically or in a newspaper
circulating in the local authority's area.
(6) For the purposes of this section, paragraphs 1 and 3 to 25 of Schedule 2 apply
with the following modifications--
(a)
references to a sex shop are to be read as references to a sexual
entertainment venue,
(b)
references to the use by a person of premises, vehicles, vessels or stalls
as a sexual entertainment venue are to be read as references to their use by
the organiser,
(c)
in Paragraph 1--
(i) in sub-Paragraph (b)--
(A) the word "or" immediately following Paragraph (i) is
omitted,
(B) Paragraph (ii) is omitted, and (ii) sub-Paragraph (c) is
omitted,
(d)
in Paragraph 7--
(i) [...]
(ii) after sub-Paragraph (3) insert--
"(3A)...
(3C) The applicant must also, not later than 7 days after the
date of the application--
(a) send a copy of the application to each person or
body listed in the local authority's determination under
sub-Paragraph (3D), and
(b) submit to the local authority a certificate stating that
the applicant has complied with this sub-paragraph.
(3D) For the purposes of sub-paragraph (3C), a local authority
must--
(a) from time to time determine the persons or bodies
who must receive a copy of the application, and
(b) publicise the determination in such manner as they
consider appropriate.",
5
(e)
in paragraph 9--
(i) in sub-paragraph (5)(c)--
(A) after the word "in" insert "the local authority's area or",
(B) after the word "for" insert "their area or",
(ii) after sub-paragraph (5) insert--
`(5A) For the purposes of sub-paragraph (5)(c), a local
authority must--
(a) from time to time determine the appropriate
number of sexual entertainment venues for their area
and for each relevant locality, and
(b) publicise the determination in such manner as they
consider appropriate.',
(iii) after sub-paragraph (6) insert--
`(6A) A local authority may refuse an application for the grant
or renewal of a licence despite the fact that a premises licence
under Part 3 of the Licensing (Scotland) Act 2005 is in effect in
relation to the premises, vehicle, vessel or stall to which the
application relates.',
(f)
in paragraph 12(2)(b), for `shorter' substitute `other',
(g)
in paragraph 19(1)(e), for the words from `without' to the end of
paragraph
(e)
substitute
`knowingly permits any person under the age of 18 to enter the sexual
entertainment venue--
(i) at a time when sexual entertainment is being provided, or
(ii) without reasonable excuse, at any other time,', and
(h)
in paragraph 25, in each of sub-paragraphs (1)(a) and (2), for `45'
substitute `45B'.
(7) In carrying out functions conferred by virtue of this section, a local authority must
have regard to any guidance issued by the Scottish Ministers.
45C Statements of policy in relation to sexual entertainment venues
(1) This section applies where a local authority passes a resolution under
section 45B(1).
6
(2) The local authority must prepare a statement of their policy with respect to the
exercise of their functions in relation to the licensing of sexual entertainment venues
(a `SEV policy statement).
(3) In preparing a SEV policy statement, a local authority must--
(a) consider the impact of the licensing of sexual entertainment venues in
their area, having regard, in particular, to how it will affect the objectives of--
(i) preventing public nuisance, crime and disorder,
(ii) securing public safety,
(iii) protecting children and young people from harm,
(iv) reducing violence against women, and
(b) consult such persons or bodies as they consider appropriate.
(4) The local authority must publish the SEV policy statement at the same time and in
the same manner as they publish the notice of the resolution under section 45B(4).
(5) The local authority must--
(a) from time to time review the SEV policy statement and make such
revisions as they consider appropriate (if any), and
(b) publish the revised statement in such manner as they consider
appropriate.
(6) Subsection (3) applies to a review of a SEV policy statement as it applies to
preparing such a statement.
(7) In exercising their functions in relation to the licensing of sexual entertainment
venues, a local authority must have regard to their SEV policy statement or revised
statement.
(8) In this section--
`children' means persons under the age of 16,
`young people' means persons aged 16 or 17."
[9]
Section 45D deals with the time period in which the local authority is to consider
applications for licences made to it (section 45 D(1)) as well as providing for the deemed
grant of such applications in the event that such time limits are exceeded.
7
[10]
Schedule 2 of the 1982 Act is headed "Control of Sex Shops". (Sex Shops are subject
to a separate licensing regime in terms of section 45 of the Act.) However, in terms of 45B(6)
of the 1982 Act (set out above), paragraphs 1 and 3 to 25 of Schedule 2 apply to SEVs with
the modifications set out in that subsection. For present purposes, the material provisions of
Schedule 2 are contained in paragraph 9 and are as follows:
"Disposal of applications for licences
9.
(1) Where an application for the grant or renewal of a licence under this Schedule has
been made to a [ local authority ] 1 they shall, in accordance with this paragraph--
(a) grant or renew the licence ; or
(b) [...]
(c) refuse to grant or renew the licence.
...
(3) A licence under this Schedule shall not be granted--
(a) to a person under the age of 18;
(b) to a person who is for the time being disqualified under paragraph 13(10)
or 19(5) below;
(c) to a person other than a natural person if any director of it or partner in it
or any other person responsible for its management is disqualified under
paragraph 13(10) or 19(5) below;
(d) to a person who has been convicted of an offence under paragraphs 19 to
21 below;
(e) to a person who is not resident in the United Kingdom or was n ot so
resident throughout the period of six months immediately preceding the date
when the application was made;
(f) to a body corporate which is not incorporated in the United Kingdom;
(g) to a person who has, within the period of 12 months immediately
preceding the date when the application was made, been refused by the same
local authority the grant or renewal of a licence under this Schedule for the
premises, vehicle, vessel or stall in respect of which the application is made,
unless the refusal has been reversed on appeal; or
(h) to a person other than a natural person if any director of it or partner in it
or any other person responsible for its management has, within that period,
been refused by the same local authority the grant or renewal of such a
licence, unless the refusal has been reversed on appeal.
(4) But without prejudice to sub-paragraph (3) above, the local authority shall refuse
an application for the grant or renewal of a licence if, in their opinion, one or more of
the grounds specified in sub-paragraph (5) below apply.
8
(5) The grounds mentioned in sub-paragraph (4) above are--
(a) that the applicant or, where the applicant is a person other than a natural
person, any director of it or any partner in it or any person responsible for its
management, is unsuitable to hold the licence by reason of having been
convicted of an offence or for any other reason;
(b) that, if the licence were to be granted or renewed, the business to which it
relates would be managed by or carried on for the benefit of a person, other
than the applicant, who would be refused the grant or renewal of such a
licence if he made the application himself;
(c) that the number of sex shops in the relevant locality at the time the
application is made is equal to or exceeds the number which the local
authority consider is appropriate for that locality;
(d) that the grant or renewal of the licence would be inappropriate, having
regard--
(i) to the character of the relevant locality; or
(ii) to the use to which any premises in the vicinity are put; or
(iii) to the layout, character or condition of the premises, vehicle,
vessel or stall in respect of which the application is made.
(6) Nil may be an appropriate number for the purposes of sub-paragraph (5)(c)
above.
(7) In this paragraph `the relevant locality' means--
(a) in relation to premises, the locality where they are situated; and
(b) in relation to a vehicle, vessel or stall, any locality where it is desired to
use it as a sex shop."
[11]
Paragraph 24(2)(b) provides that there is no right of appeal to the sheriff against a
decision to refuse an SEV licence for the grounds set out in paragraph 9(5)(c) and (d). In the
absence of a right of appeal, such a refusal can be challenged only by way of judicial review.
Circumstances in which the respondent's Decision was made
[12]
The process which culminated in theDecision involved consultation and deliberation
by the respondent. In October 2019, the respondent agreed in principle, to licence SEVs
9
subject to consultation. In early 2020, prior to the Covid-19 pandemic, the respondent held
three evidence sessions with stakeholders including performers. Further work was affected
by the onset of the pandemic in March 2020. The respondent subsequently conducted
further consultation in April 2021 and July 2021. A report on that consultation was made to
the Regulatory Committee on 2 December 2021. Thereafter, matters were continued until
the meeting of 31 March 2022. On that date, deputations from a range of perspective were
received by the Committee. The meeting was broadcast live and a recording of the meeting
was made. (I was provided with a transcript of the meeting).
[13]
The respondent's officers provided the Committee with a report which advised the
Committee to consider and determine matters in the following order:
- First, to agree to resolve that Schedule 2 of the 1982 Act was to be effective within
the City of Edinburgh for the purposes of licensing SEVs; to make a resolution to
license SEVs from 1 April 2023; and, accordingly, to adopt a scheme to license
SEVs from that date.
- Second, to determine an appropriate number of SEVs for the City of Edinburgh
and to determine the number as being either four (the number of existing
operating venues) or nil.
- Third, to agree to the proposed SEV licensing policy statement and agree that the
SEV licensing policy shall include a statement that any area in the city other than
in the city centre ward would not be considered suitable for the operation of a
SEV.
- Finally, to agree to the proposed standard licensing conditions for SEV licences.
10
[14]
The report also set out advice from the respondent's officers to the Committee. In
respect of the determination of an appropriate number of SEVs for the City of Edinburgh,
the report provided as follows:
"4.8 Should Committee make a resolution to introduce a licensing scheme for SEVs,
the Council will have to set a limit on the number of SEV premises permitted in the
city. Any decision made by Committee in respect of determining a limit on the
number of licensed SEVs in Edinburgh must be based on an assessment of the
evidence gathered. This would include information from the consultation exercises
which took place in 2019 and 2021, and evidence sessions with stakeholders, in
addition to any other relevant material contained within previous Committee reports
on this issue.
4.9 Members must also consider the legislative requirements, the guidance, and the
Scottish Government's strategy `Equally Safe; Scotland's strategy for preventing and
eradicating violence against women and girls'.
4.10 Consultation has shown that there is a broad range of views with respect to the
setting of limits on SEV premises in the city generally, and in certain localities in
particular. The consultation responses demonstrated that views on what any limit
should be are polarised. Some responses have advocated that a zero limit should be
introduced, which would create a rebuttable presumption against granting any SEV
licence. Other respondents clearly favour no limit being introduced on the number
of premises...
...
4.14 The tension between potentially licensing SEVs, including permitting a number
to operate, and these concerns, are specifically addressed in the guidance which
states:
20 Equally Safe: Scotland's strategy for preventing and eradicating violence
against women and girls was first published in 2014 and updated in 2016 and
again in 2018. It sets out a definition of violence against women and girls
which includes `commercial sexual exploitation, including prostitution, lap
dancing, stripping, pornography and human trafficking'.
21 Whilst recognising the conflict between this definition and the licensing of
SEV, this guidance will help to ensure that such activities take place in safe
and regulated environments. When deciding whether to licence, and
whether to limit, SEV in their area, local authorities will need to consider the
interaction with their own local policies and strategies, as well as the legal
implications around limiting a legitimate business activity to minimise the
risk of legal challenge'.
11
4.15 Therefore, Committee will have to balance competing views and to determine
whether any limit which is imposed will be, on balance, appropriate and
proportionate in order to support the Council's objectives in adopting a licensing
system. The Committee must base its decision on the evidence available in the
consultation responses, taking account of the relevant legislation and guidance. The
Committee should exclude moral opinion in its decision-making process and make a
decision based on the evidence before it. Committee will be required to weigh up
the evidence provided and to set out why they have preferred one body of evidence
over another. By introducing legislation, the Scottish Government has agreed that
the operation of SEVs is a lawful activity which is best controlled at a local level by
councils which have knowledge and understanding of local circumstances.
Accordingly, should factors other than those considered relevant, as set out in the
legislation and guidance, be seen to influence the determination of a numbers limit
by the Council, then this would increase the risk of a successful legal challenge to
any decision."
[15]
In addressing the option of setting a limit of nil for SEVs, the report provided as
follows:
"4.23 As with determining a numbers limit of four, in making a decision on the limit
to set for SEVs at zero, Committee must be able to demonstrate that it has weighed
up the evidence before it and reached a decision that is both rational and
proportionate. The Committee must also refer to the promotion of the licensing
objectives set out in the 1982 Act and which are detailed at section 3.6 of this report.
Specifically, Committee should consider: is there a sufficiency of evidence available
to it that would enable it to decide that a proportionate limit on the number of SEVs
is zero? There is some evidence suggesting that there may be wider policy concerns
about the appropriateness of SEV-style venues and their place in modern society,
Paragraph 45 of the guidance states that the Council should:
"...reflect on whether reducing the number of venues, or setting the number at zero,
in their area will have a disproportionate effect on business. The local authority
should also consider whether reducing the number of SEV in their area or setting the
number at zero would create a risk of legal challenge (for example under ECHR or
on grounds of reasonableness)".
4.24 The Scottish Government guidance further states at paragraph 46:
"...in setting the number at zero, a local authority will require to demonstrate
proportionality by evidencing that the competing interests of SEV operators
alongside those of the community had been fairly considered and appropriately
balanced."
4.25 In adopting a licensing scheme, the Council is required to take into account the
socio-economic and public sector equality duties in the Equality Act 2010 (`the 2010
Act') as well as human rights legislation. The Council is also prohibited from
12
indirectly discriminating against a group which shares a protected characteristic,
unless that discrimination can be objectively justified. Section 19 of the 2010 Act
provides that indirect discrimination arises where a provision, criterion or practice
(`PCP') that applies in the same way for everyone has the effect of putting a group of
people who share a protected characteristic (e.g. sex) at a particular disadvantage.
By setting a zero limit in respect of SEVs, a PCP would be created for the purposes of
the 2010 Act.
4.26 If it can be clearly demonstrated that a zero-limit policy is justifiable in that it is a
proportionate means of achieving a legitimate aim, it will not amount to unlawful
discrimination. In doing so, Committee must have considered the evidence which
has been gathered throughout the consultation process and consider whether there is
an evidential basis to demonstrate that a zero-limit policy would be a proportionate
means of achieving a legitimate aim. Further, Committee should also have
considered whether a less discriminatory means (e.g. setting a limit of two SEVs)
could achieve the same objective.
4.27 A limit of zero creates a rebuttable presumption against the grant of SEV
licences in the Council's area, which could ultimately result in the closure of existing
premises and a loss of income for operators, performers and employees of those
premises. The Committee will also recall hearing evidence which suggested that a
zero limit could lead to SEV activities taking place in unregulated and unsafe
environments. Members should also refer to the Integrated Impact Assessment
(Appendix 12) for a detailed assessment of what impact the licensing policy could
have in this regard.
4.28 Both human rights legislation (and in particular Protocol 1, Article 1 of the
ECHR ­ the right to peaceful possession) and the guidance make clear that, in limit-
setting, Committee must consider any impact on existing operators. In the event of a
zero limit being set, this would not have an immediate impact, since operators could
continue until the new regime had commenced and applications for licences were
finally determined. However, ultimately it could lead to the closure of the SEVs in
the event that they were refused a licence by the Licensing Sub-Committee because
of the zero cap on SEVs within the Council's area.
4.29 During consultation, Committee heard from those who are in favour of the a
[sic] zero-limit being introduced for SEVs. In summary, those respondents raised the
following issues:
· Sexual Entertainment is a key contributing factor to wider gender
inequality in society;
· The Scottish Government's Equally Safe Strategy which defines sexual
entertainment as a form of VAWG;
· Experiences in other countries which have taken similar steps, such as
Sweden and Iceland, which have criminalised the purchase of sex and
outlawed similar premises respectively;
13
· Women being pushed towards the sex industry as a result of the health
pandemic;
· Anecdotal experiences reported in the media;
· The Lileth Project in London which saw an increase of reported rapes in the
vicinity of SEVs; and
· Reference to academic texts that argue that SEVs normalise behaviours and
interactions between men and women that would normally be considered as
sexual harassment, violence and gender discrimination in any other setting.
4.30 Members will be aware that some other local authorities have set the limit at
zero but that so far these have only been those authorities which did not have any
SEVs operating. At the time of drafting this report, Glasgow and Aberdeen have
decided the numbers issued in their area, and in effect have allowed existing
premises to continue to operate within any cap.
4.31 Committee is asked to take the considerations set out at 4.23 - 4.30 above into
account when reaching a determination on the appropriate number of SEVs within
Edinburgh namely: 1) weighing up the representations received in response to the
consultation; 2) consistency with the licensing objectives; and 3) proportionality in
terms of achieving the licensing objectives and balancing the rights of SEVs operators
and performers against the rights of those opposed to SEVs."
(Emphasis added)
[16]
The parties were agreed that, as is apparent from the report and, in particular,
paragraph 4.27 (quoted above), the Committee were advised that were they to determine
that a limit of zero was appropriate this would create a "rebuttable presumption". In other
words, the Committee were advised that such a determination would not in itself result in
the automatic refusal of an application for a licence from an SEV in Edinburgh.
The respondent's decision
[17]
The minutes of the meeting of the Regulatory Committee on Thursday 31 March
2022 record its decision as follows:
"1) To agree to resolve that Schedule 2 of the Civic Government (Scotland) Act 1982
(`the 1982 Act') shall be effective within the City of Edinburgh for the purpose of
licensing Sexual Entertainment Venues and to make a resolution to license Sexual
Entertainment Venues (as set out at Appendix 11 to the report by the Executive
Director of Place) from 1 April 2023, and accordingly to adopt a scheme to license
Sexual Entertainment Venues in terms of the 1982 Act from the said date thereafter.
14
2) To note that Committee was required to determine a Sexual Entertainment Venues
number appropriate for the City of Edinburgh Council area and to produce and
publish a Sexual Entertainment Venue Licensing Policy for the said area all in terms
of the 1982 Act.
3) To note the updated advice received from officers in respect of what should be
considered if the Committee introduced a limit for the number of Sexual
Entertainment Venues and agree that the City of Edinburgh Council would set the
number of SEVs at zero within Edinburgh.
4) To agree to the proposed Sexual Entertainment Venues licensing policy statement
set out at Appendix 9.
5) To agree that the policy shall include a statement that any area in the city other
than in the city centre ward would not be considered suitable for the operation of a
Sexual Entertainment Venue.
6) To agree to the proposed standard licensing conditions for Sexual Entertainment
Licences set out at Appendix 10."
It is notable to record that, in making this decision, the Regulatory Committee was relatively
evenly split with five votes in favour and four against.
Subsequent events
[18]
On Thursday 22 October 2022, the respondent, sitting as the full Council, passed the
following motion:
"1) To note that the key aims of civic licensing are the preservation of public safety
and the prevention of crime and disorder.
2) To note the implementation of a Nil Cap policy on Sexual Entertainment Venues
(SEVs) on 1 April 2023, which may lead to the closure of four venues.
3) To note that entertainers may continue to work in the industry despite possible
closures and may be working in less safe and completely unregulated environments.
4) To recognise that this could lead to the further deterioration of performers' safety
in the city.
5) To agree, therefore, that a report shall be presented to the Regulatory Committee
within 2 cycles to consider this.
15
6) To recognise that the Equally Safe strategy for ending violence against women and
girls expects that we work with others to reduce the demand for Commercial Sexual
Exploitation.
7) To agree that the Council should work with partners to put in place a programme
of support for entertainers who may be affected by these closures."
[19]
Notably, at the same meeting, the Council declined to pass an amendment to the
motion in the following terms:
"Therefore, to instruct the Regulatory Committee to re-consider the Nil cap policy in regard
to sexual entertainment venues at the next Regulatory Committee in November 2022."
Submissions for the petitioners
[20]
Mr O'Neill began by moving me to find and declare the respondent's determination
fixing "nil" as the appropriate number of sexual entertainment venues for the whole city of
Edinburgh to be unlawful; to order reduction of the respondent's determination; to award
the petitioners expenses against the respondent for the whole process to date; and thereafter
for the petition to be continued for further procedure relative to the petitioners' damages
claims.
[21]
He submitted that despite the number of grounds of challenge set out in the petition,
the key difference between the parties turned on a construction of the statutory provisions
introduced by the 2015 Act.
The statutory scheme
[22]
Mr O'Neill's starting point was section 45B(6)(e)(ii) of the 1982 Act. This provision
modified paragraph 9 of Schedule 2 of the 1982 Act by introducing paragraph (5A):
"(5A) For the purposes of sub-paragraph (5)(c), a local authority must-- (a) from
time to time determine the appropriate number of sexual entertainment venues for
16
their area and for each relevant locality, and (b) publicise the determination in such
manner as they consider appropriate."
The effect of this provision was to impose a duty of the respondent to make a determination
of the appropriate number of SEVs for its area. As the opening words made clear, this was
something which the respondent "must" do. The duty to make this determination of an
appropriate number of SEVs was not linked to any particular application for a licence. This
determination required to be publicised. Mr O'Neill also drew my attention to section 45(7)
of the 1982 Act. This subsection required the local authority to have regard, in carrying out
functions conferred by section 45, to any guidance issued by the Scottish Ministers. The
requirement to make a determination was such a function and, therefore, fell within the
scope of subsection 45(7).
[23]
Furthermore, Mr O'Neill submitted that the provision made clear that the
determination is for the purpose of one of grounds of refusal set out in paragraph 9(5) ­
namely (c). When the modifications made by section 45B(6)(a) and (e)(i) are incorporated
that provision reads as follows:
"that the number of sexual entertainment venues in the local authority area or
relevant locality at the time the application is made is equal to or exceeds th e number
which the local authority consider is appropriate for their area or that locality."
[24]
Mr O'Neill submitted that when ground 9(5)(c) was read with paragraph 9(4), it was
apparent that the respondent had no discretion but to refuse an application if, at the time it
was made, the number of SEVs in its area was equal to or exceeded the number determined
under paragraph 9(5A). He pointed to the fact that subparagraph 9(4) stated that the
respondent "shall" refuse an application where in its opinion one or more of the grounds
specified in subparagraph 9(5) applied.
17
[25]
Mr O'Neill criticised the construction of these provisions relied upon by the
respondent. The respondent sought to argue that the determination merely created a
"rebuttable presumption". Such a construction ignored both nature of the duty created by
paragraph 9(5A) and the mandatory language in paragraph 9(4) which required refusal.
[26]
Mr O'Neill accepted that the drafting of paragraph 9(5) and, in particular, ground (c)
might seem slightly odd in that a mandatory ground of refusal had not been included in
paragraph 9(3) along with other such grounds. However, Mr O'Neill submitted that,
bearing in mind the way in which the scheme for the control of sex shops contained in
Schedule 2 had been modified by section 45B in order to apply to SEVs, the significance that
might be attached to this point could not outweigh the plain meaning of the words used in
paragraphs 9(4), (5)(c) and (5A) of Schedule 2 taken together.
[27]
Mr O'Neill noted that the respondent also relied upon section 45D and, in particular,
on the fact that no reference was made in that provision to the determination made in terms
of subparagraph 9(5A). However, Mr O'Neill submitted that the absence of any reference to
the determination in section 45D was, at best, neutral for the respondent. Section 45D dealt
with situations in which a relevant application had been made to the respondent but had not
been dealt with in the time limits provided. It was in no way necessarily linked to the
situation of an application being made which equalled or exceeded the number of SEVs the
local authority had determined for its area in terms of paragraph 9(5A). Where the limit
determined by paragraph 9(5A) applied, the local authority required, in terms of
paragraph 9(4) to refuse the application. In these circumstances, it was difficult to see how
section 45D would be engaged.
[28]
Mr O'Neill emphasised that the provisions regulating the licensin g of SEVs in
Scotland were unique. These provisions differed in material terms from those which
18
governed licensing in other areas. The provisions also had no identical equivalent in either
England and Wales or Northern Ireland. In particular, there was no equivalent in any other
area of Scottish licensing law to the requirement contained paragraph 9(5A) (which was
introduced by Section 45B(6)(e)(ii)) for the local authority formally to determine the
appropriate number of venues for their area and to publicise this determination. There was
also no such provision in the equivalent schemes which applied either in England and Wales
or in Northern Ireland.
[29]
Mr O'Neill submitted that these provisions were essentially different from, for
example, those relating to the duty of a licensing board to assess overprovision of premises
licensed for the sale of alcohol (section 7 of the Licensing (Scotland) Act 2005); or, in relation
to taxi and private hire licenses (section 10 of the Civic Government (Scotland) Act 1982).
On this basis, Mr O'Neill submitted that the case of Coyle v City of Glasgow Council 1997
SC 370, which was relied upon by the respondent, fell to be distinguished because the
provisions with which that case was concerned ­ section 10 of the Civic Government
(Scotland) Act 1982 ­ did not impose a duty on the council to make a determination
equivalent to that required by paragraph 9(5A).
[30]
In this regard, Mr O'Neill also drew my attention to Belfast City Council v Miss
Behavin' Limited [2007] 1 WLR 1420. This case involved consideration by the House of Lords
of the statutory scheme regulating sex shops in Northern Ireland contained in Local
Government (Miscellaneous Provisions) (Northern Ireland) Order 1985. It is apparent that
the provisions under consideration in that case are similar to the 1982 Act with two
important distinctions. First, the equivalent provision to Paragraph 9(4) of Schedule 2 ­
Paragraph 12(2) of Schedule 2 to the 1985 Order ­ provides that a local authority "may
refuse" as opposed to "shall refuse". Second, there is no equivalent in the Northern Irish
19
scheme to the duty to determine an appropriate number of SEVs contained in
Paragraph 9(5A). Notwithstanding these differences, Mr O'Neill drew my attention to
paragraph [6] of Lord Hoffman's speech where he considered the nature of the local
authority's power to refuse a licence in circumstances where number of premises is equal to
or exceeds the number the local authority considers is appropriate:
"The effect of these rather convoluted provisions is that a council may refuse a
licence for a sex shop in any locality on the ground it does not consider it appropriate
to have sex shops in that locality. It was said that because the Order says that the
council `may' refuse, this ground is `discretionary'. But I am not sure whether that is
a very helpful adjective. It would hardly be rational for the council to decide that the
appropriate number of sex shops in the locality was nil, but that it would all the
same exercise its discretion to grant a licence. I think it is more accurate to say that
the question of how many sex shops, if any, should be allowed is a matter for the
council's judgment."
[31]
The effect of, and Mr O'Neill submitted, the reason for these differences was that, in
respect of Scottish scheme for Sexual Entertainment Venues ­ Schedule 2 of the 1982 Act as
adapted, the provisions enabled the local authority to create certainty by imposing a
complete ban on such venues.
[32]
Once a local authority had resolved to adopt the licensing regime for SEVs (in terms
of Section 45B(1)), the local authority then had to prepare a statement of policy "with respect
to the exercise of their functions in relation to the licensing of SEVs" pursuant to
Section 45C(2). Subsection 45C(3) detailed various matters which the local authority
requires to consider in preparing the policy statement. Section 45C(7) also provided that in
the exercise of their functions in relation to the licen sing of SEVs, the local authority required
to have regard to this policy statement.
[33]
Against the background of these provisions, Mr O'Neill submitted that the policy
statement should both be consistent with and explain the reasoning underpinning the
20
determination to be made in terms of subparagraph 9(5A) of Schedule 2. However,
Mr O'Neill highlighted that, in the present case, the respondent, having adopted the
licensing regime and then determined that the appropriate number of SEVs was nil, had
then agreed a policy statement which did not reflect the fact that, in light of the nil, no SEVs
could be licensed. The policy statement proceeded, erroneously, on the basis that
applications could still be granted.
[34]
Mr O'Neill emphasised that the petitioners did not take issue with the sequencing of
the determination (in terms of subparagraph 9(5A)) and the preparation of the policy
statement (in terms of section 45C(2)). The point taken by the petitioners was that the policy
statement which had, in fact, been adopted by the respondent was fundamentally
inconsistent with the nil determination.
Prematurity
[35]
Based upon the construction of the statutory provisions for which he contended,
Mr O'Neill submitted that the respondent's plea of prematurity was misconceived. The
respondent contended that the petition was premature because none of the first to third
petitioners had, as yet, made an application for an SEV licence. However, the respondent's
argument presupposed wrongly, according to Mr O'Neill, that it was still open to the
respondent to grant any such application notwithstanding the nil determination it had
made.
[36]
Mr O'Neill submitted further that no prematurity point could properly be based on
the fact that none of the first to third petitioners had applied for a waiver from the
respondent in terms of paragraph 5 of Schedule 2. In terms of subparagraph 5(4), a local
authority may grant such a waiver in any case where they consider that to require a licence
21
would be unreasonable or inappropriate. However, in the present case, the respondent had
determined, in terms of paragraph 9(5A), that no sexual entertainment venues were
appropriate in their area. In such circumstances, Mr O'Neill submitted it was not possible to
see how the respondent could ever reasonably grant a waiver.
[37]
The respondent also sought to argue that the petition was premature because of a
motion that had been passed by the respondent, sitting as a full Council, on 27 October 2022
to "re-consider the Nil cap policy" (see paragraph [18] above). It was understood that this
would be considered in early 2023. Mr O'Neill submitted that this development, whilst
potentially good news for his clients, was irrelevant to the present proceedings. Unless and
until it was changed, the nil determination made by the respondent, which lay at the heart of
these proceedings, remained in place. The suggestion from the respondent that it might
change its mind did not provide a basis for the Court not to decide upon the arguments
advanced by the petitioners.
Court's discretion to refuse remedy of reduction
[38]
Mr O'Neill then addressed the argument made by the respondent that, even if the
petitioners were correct as to the construction of the 1982 Act and, in particular, Schedule 2,
then the respondent's error in law was not such as to vitiate the determination that had been
made. The respondent contended in its Note of Argument that, on this hypothesis, any
error by the respondent had not in itself given rise to substantial prejudice because the
prejudice arose from the determination itself. Furthermore, notwithstanding the error, the
result would almost certainly have been the same. The respondent relied upon the case of
Douglas v Perth & Kinross Council 2017 SC 523 in this regard.
22
[39]
In response to this argument, Mr O'Neill submitted that there was simply no
evidence to support the respondent's contention that, had the Regulatory Committee been
advised that the nil determination established a ban on SEVs as opposed to merely creating
a rebuttable presumption, it would have reached the same decision . Mr O'Neill submitted
that these two results were very significantly different and it could not be assumed, certainly
in the absence of any clear evidence, that the Committee's decision would have been the
same. There was also no question that were the determination to be reduced this would
have a practical effect for the petitioners. Unlike the Douglas case, it was not the case that the
reduction of the determination would not have a real and practical impact on the petitioners.
[40]
Mr O'Neill then advanced a series of grounds challenging the procedure adopted by
the respondent in making the nil determination.
Failure to have regard to guidance issued by the Scottish Ministers
[41]
First, Mr O'Neill submitted that there had been a failure by the respondent to have
regard to guidance issued by the Scottish Ministers as required by section 45B(7) of the 1982
Act. The Scottish Government had issued Guidance on the Provisions for Licensing Sexual
Entertainment Venues dated March 2019. This guidance provides at paragraph 27
"Local authorities will have to consider the circumstances pertaining in their local
area and their statutory obligations (including, but not limited to, their obligations
under the EU Services Directive and the Regulatory Reform (Scotland) Act 2014).
Local authorities will also have to consider the rights SEV operators may have under
the European Convention on Human Rights (ECHR) particularly under Article 1,
Protocol 1 (peaceful enjoyment of possessions) and Article 10 (freedom of
expression) of the Convention...."
[42]
Mr O'Neill drew my attention particularly to the reference in the guidance to the EU
Services Directive. This was a reference to the Internal Market Directive (2006/123).
23
Mr O'Neill submitted that there was nothing to suggest that the respondent had had any
regard either to this Directive or the obligations it imposed.
[43]
The Directive had been implemented into law in the UK by the Provision of Services
Regulations 2009 (SI 2009/2999). Mr O'Neill submitted that the 2009 Regulations set down
parameters for, among other things, the conditions that may lawfully be imposed under the
licensing regimes applicable to SEVs in the UK. Regulation 14 imposed requirements on
competent authorities, such as the respondent, in making the provision of services subject to
an "authorisation scheme". In particular, Mr O'Neill drew my attention to Regulation 15
which provided:
"15.-- Conditions for the granting of authorisation
(1) An authorisation scheme provided for by a competent authority must be based on
criteria which preclude the competent authority from exercising its power of
assessment in an arbitrary manner.
(2) The criteria must be--
(a) [...]
(b) justified by an overriding reason relating to the public interest,
(c) proportionate to that public interest objective,
(d) clear and unambiguous,
(e) objective,
(f) made public in advance, and
(g) transparent and accessible."
[44]
Mr O'Neill submitted that the actions of the respondent in adopting the licensing of
SEVs and, subsequently making the nil determination required to be consistent with
Regulation 15. However, in the absence of proper supporting reasons (for example, in the
section 45C policy statement), the nil determination could not be said to comply with
paragraphs (b), (c) and (g).
24
[45]
Furthermore, Mr O'Neill submitted that consideration of the requirements of
Regulation 15 pointed in favour of the petitioners' construction of Schedule 2. On the
petitioners' construction, the determination in terms of Paragraph 9(5A) of Schedule 2,
would be made having regard to the Section 45C policy statement. In the event that it was,
as in the present case, a nil determination, the position would be clear in advance to those
considering making applications for SEV licences. Such a construction was consistent with
requirements of Regulation 15. By contrast, on the respondent's construction, there was
apparently no requirement to give reasons for the paragraph 9(5A) determination. Further,
the impact of the determination on the grant or refusal of any subsequent applications - in
other words, how the rebuttable presumption was to be put into practice ­ was entirely
obscure.
[46]
Finally, on this point, Mr O'Neill drew my attention to the decision of the Supreme
Court in R (Lumsdon v Legal Services Board) [2016] AC 697 and, in particular, to
paragraph [68] of the joint judgment of Lords Reed and Toulson where their Lordships
consider the approach of the European Court of Justice, in the context of proportionality, to
considerations of "principles of good administration". Mr O'Neill pointed out that, as their
Lordships note at paragraph [31]:
"Where the proportionality principle is applied by a national court, it must, as a principle of
EU law, be applied in a manner which is consistent with the jurisprudence of the court: as is
sometimes said, the national judge is also a European judge."
[47]
As he developed his submissions, Mr O'Neill also argued that the provisions of the
2009 Regulations implementing the Internal Market Directive also fell to be applied to the
respondent's Decision as a result of the Regulations forming part of retained EU law in
terms of section 2 of the European Withdrawal Act 2018. He argued, separately, that the
25
fourth petitioner had retained EU law rights as a worker protected under and in terms of
Part 2 of the EU-UK Withdrawal Agreement. He also maintained that the "general
principles of good administration" referred to in Lumsdon also formed part of "retained
general principles of EU law" in terms of Section 6(7) of the 2018 Act. Notwithstanding
these different routes to the application of the principles Mr O'Neill derived from EU law, I
did not understand him to be submitting that these differences in route impacted in any
material way upon the challenge to the respondent's Decision that he was advancing under
this head. The essential question was whether the respondent had demonstrated, on the
basis of relevant and sufficient evidence, that the Decision pursued a legitimate aim which
was justified by overriding reasons in the public interest and did not go beyond what is
necessary for that purpose.
Failure to provide proper and adequate reasons
[48]
Second, Mr O'Neill contended that the failure to provide proper and adequate
reasons in itself represented an error of law. He submitted that the guidance issued by the
Scottish Ministers stated the following at paragraph 43 in relation to the Section 45C policy
statement:
"The statement might include information on the locations where the local authority
is likely to consider the operation of SEV to be appropriate or inappropriate. The
statement could also be used to indicate how many SEV are considered to be
appropriate for the local authority's area or particular localities within its area. The
reasons for these policy positions should also be provided." (Emphasis added)
[49]
In any event, Mr O'Neill submitted that, even in the absence of an express statutory
provision, the respondent was under a duty to provide reasons at common law. He
founded upon the decision of Lord Justice Elias in R (Oakley) v South Cambridgeshire District
Council [2017] EWCA Civ 71 and, in particular, at paragraphs [26] to [33]. He accepted that
26
there was no general obligation at common law to provide reasons, but submitted that in the
present case, considerations of fairness required that adequate reasons be provided by the
respondent for the nil determination. The effect of that determination was, so Mr O'Neill
contended, the banning of the business operated by the first to third petitioners.
Furthermore, Mr O'Neill argued that these considerations of fairness applied even more
strongly where the statutory scheme did not provide for any means of reviewing this
determination other than by way of judicial review.
[50]
Mr O'Neill observed that the respondent had advanced no good reasons against the
giving of reasons for the determination in accordance with paragraph 9(5A) of Schedule 2.
The respondent had referred to the express duty for the respondent to give reasons in
writing in respect of applications for a licence (paragraph 23 of Schedule 2). But this duty
co-existed with the requirement on the respondent to prepare a policy statement in terms of
section 45C with respect to the exercise of its functions in relation to licensing of SEVs. The
respondent also suggested that the nature of the respondent's collective decision making
process mitigated against the imposition of a duty to give reasons. However, Mr O'Neill
pointed out that licensing decisions are routinely taken collectively by a board and this did
not prevent reasons from being issued. Mr O'Neill also noted that the respondent appeared
to suggest that the fact that the determination was taken in the context of a wide range of
policy decisions about a framework to govern future licensing applications meant that a
duty to give reasons ought not to be imposed. Whereas Mr O'Neill submitted that this fact
ought to give rise to the opposite conclusion. It was precisely because the respondent's
determination in terms of paragraph 9(5A) of Schedule 2 had a wider impact than a decision
in respect of an individual application that reasons ought to be given for that determination.
27
[51]
Mr O'Neill submitted that the material produced by the respondent in this case
which was said to evidence the reasons ­ namely, the Minute together with the transcript of
what the members of the committee had said ­ could not reasonably be regarded as a
statement of reasons. On this basis, the cases cited by the respondent which relate to what is
required by way of reasoning all fell to be distinguished as in each of those cases there was a
statement of reasons albeit one that was being criticised. This point could be made in
respect of Tesco Stores v City of Glasgow Licensing Board 2013 SLT (Sh Ct) 75. That was not the
position here.
[52]
Mr O'Neill also submitted that one had to be careful when seeking to identify
reasoning from a transcript of what appeared to him to have been a somewhat fractious
meeting in which the discussion seemed to have been more free ranging than focussed.
Failure to inform itself of the relevant facts
[53]
Third, Mr O'Neill submitted that the respondent had failed to comply with its
obligation to inform itself of the relevant facts. Mr O'Neill based this challenge on the duty
which he argued was incumbent on the respondent to inform itself of the relevant facts
before coming to its decision in respect of the nil determination. He relied upon the decision
of the English Court of Appeal in R (Balajigari) v Home Secretary 2019 1 WLR 4647 at
paragraph 70 of Lord Justice Underhill's judgment as summarising the relevant principles in
this area.
"First, the obligation on the decision-maker is only to take such steps to inform
himself as are reasonable. Secondly, subject to a Wednesbury challenge ..., it is for
the public body and not the court to decide upon the manner and intensity of inquiry
to be undertaken: see R (Khatun) v Newham London Borough Council [2005] QB 37, para
35 (Laws LJ). Thirdly, the court should not intervene merely because it considers
that further inquiries would have been sensible or desirable. It should intervene only
if no reasonable authority could have been satisfied on the basis of the inquiries
28
made that it possessed the information necessary for its decision . Fourthly, the court
should establish what material was before the authority and should only strike down
a decision not to make further inquiries if no reasonable authority possessed of that
material could suppose that the inquiries they had made were sufficient. Fifthly, the
principle that the decision-maker must call his own attention to considerations
relevant to his decision, a duty which in practice may require him to consult outside
bodies with a particular knowledge or involvement in the case, does not spring from
a duty of procedural fairness to the applicant but rather from the Secretary of State's
duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the
discretion conferred on the Secretary of State, the more important it must be that he
has all the relevant material to enable him properly to exercise it."
[54]
Against this background, Mr O'Neill's point, as I understood it, was essentially that
because the respondent had, as a result of what Mr O'Neill contended was its
misconstruction of the provisions of Schedule 2, failed to appreciate that in making the nil
determination it was imposing a ban on SEVs, it had not properly informed itself of the
impact of that decision.
Article 1 of the First Protocol ECHR
[55]
The final challenge of the respondent's decision advanced by the petitioners was the
respondent had failed to comply with the rights of the first, second and third petitioners
under the European Convention of Human Rights. In particular, the petitioners argued that
the respondents' nil determination represented a disproportionate interference with the
rights which the petitioners enjoyed under Article 1 of the First Protocol to the Convention.
Mr O'Neill submitted that, in the circumstances of the nil determination and its effect on
their businesses, the petitioner's Convention rights were engaged and it was necessary to
consider whether the determination was disproportionate. He relied on R (Mott) v
Environment Agency [2018] UKSC 10 [2018] 1 WLR 1022 per Lord Carnwath at
paragraphs 14- 17, 22, 32-34.
29
[56]
Mr O'Neill submitted that the approach to be taken to this assessment of
proportionality was set out in the judgment of Lord Mance JSC in Re Recovery of Medical
Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3 [2015] AC 1016 at [45] and [52]
"45 There are four stages, which I can summarise as involving consideration of (i)
whether there is a legitimate aim which could justify a restriction of the relevant
protected right, (ii) whether the measure adopted is rationally connected to that aim,
(iii) whether the aim could have been achieved by a less intrusive measure and (iv)
whether, on a fair balance, the benefits of achieving the aim by the measure outweigh
the disbenefits resulting from the restriction of the relevant protected right. The
European Court of Human Rights has however indicated that these stages apply in
relation to A1P1 with modifications which have themselves been varied over the
years.
...
52 I conclude that there is Strasbourg authority testing the aim and the public interest
by asking whether it was manifestly unreasonable, but the approach in Strasbourg to
at least the fourth stage involves asking simply whether, weighing all relevant
factors, the measure adopted achieves a fair or proportionate balance between the
public interest being promoted and the other interests involved. The court will in
this context weigh the benefits of the measure in terms of the aim being promoted
against the disbenefits to other interests. Significant respect may be due to the
legislature's decision, as one aspect of the margin of appreciation, but the hurdle to
intervention will not be expressed at the high level of `manifest unreasonableness. In
this connection, it is important that, at the fourth stage of the Convention analysis, all
relevant interests fall to be weighed and balanced. That means not merely public,
but also all relevant private interests. The court may be especially well placed itself
to evaluate the latter interests, which may not always have been fully or
appropriately taken into account by the primary decision -maker."
[57]
Mr O'Neill submitted that it was incumbent on the respondent to satisfy the Court
that each of the four steps had been satisfied. Whereas, the respondent had failed, he
contended, either by way of averment or evidence, to address, in particular, the third and
fourth steps.
[58]
In advancing this submission, Mr O'Neill recognised that, when considering human
rights in the present context, there were statements in a number of cases which suggested
30
that these rights only operated at a low level. He referred to what was said by Lord
Hoffman in Belfast City Council v Miss Behavin' Limited (above) at paragraph [16]:
"If Article 10 and Article 1 of the First Protocol are engaged at all, they operate at a
very low level. The right to vend pornography is not the most important right of free
expression in a democratic society and the licensing system does not prohibit anyone
from exercising it. It only prevents him from using unlicensed premises for that
purpose. Even if the council considered that it was not appropriate to have a sex
shop anywhere in Belfast, that would only have put its citizens in the same position
as most of the rest of the country, in having to satisfy their demand for such products
by internet or mail order or going to more liberally governed districts like Soho. This
is an area of social control in which the Strasbourg court has always accorded a wide
margin of appreciation to member states, which in terms of the domestic constitution
translates into the broad power of judgment entrusted to local authorities by the
legislature. If the local authority exercises that power rationally and in accordance
with the purposes of the statute, it would require very unusual facts for it to amount
to a disproportionate restriction on Convention rights."
[59]
He also referred to the observations of Mr Justice Stuart-Smith in R (Bean Leisure
Trading A Limited) v Leeds City Council
"[54] If the licensing regime engages the human rights of operators of lap dancing
clubs at all, it does so at a very low level. While some may wish to argue that there
are material distinctions between the sale of pornography and the running of a lap
dancing venue, they have in common that they are areas of social control in which
the broad power of judgment entrusted to local authorities by the legislature is
accorded a wide margin of appreciation. If the local authority exercises that power
rationally and in accordance with the purposes of the statute, it would require very
unusual facts for it to amount to a disproportionate restriction on Convention rights.
If the local authority does not refer to an applicant's Convention rights that may be
an indication that it has given inadequate attention to them; but the question in every
case is whether the applicant's rights have been infringed, which is a question of
substance and generally not simply one of procedure: see Belfast City Council v Miss
Behavin' Ltd Northern Ireland [2007] UKHL 19, [2007] 1 WLR 1420, [2007] LLR 312 at
paras [16], [17], [37], [91]­[95]. Proportionality requires the striking of a fair balance
between a claimant's economic interests and the general public interest: see Tre
Traktörer Aktiebolag v Sweden (Application No 10873/84) (1991) 13 EHRR 309."
[60]
Mr O'Neill sought to distinguish the present case from these authorities on the
grounds that he was advancing human rights arguments in an EU law context. In this
31
regard, he referred to three cases which he submitted showed that so far as EU law was
concerned, services such as those provided in the establishments operated by the first,
second and third petitioners were analysed in economic terms. The rights of the operators
were not diminished in any way because of the nature of the services being provided. The
cases he referred to were C-340/14 & C-341/14 Trijber (t/a Amstelboats) v Amsterdam
[2016] CMLR 38; C-315/15 R (Hemming) v Westminster Council (Third Chamber CJEU) [2018] AC 650;
and C-230/18 PI v Landespolizeidirektion Tirol (Sixth Chamber) [2019] CMLR 31.
Submissions for the additional party
[61]
As noted above, the additional party advanced its submissions primarily in writing
supplemented by short oral submissions by Mr Welsh. He submitted that the respondent's
Decision and, in particular, the nil determination ought to be reduced on four grounds.
Misdirection in law ­ taking account of irrelevant factors
[62]
First, the additional party submitted that the respondent had misdirected itself in
law by taking into account irrelevant factors. Mr Welsh made clear that he was advancing
this ground on two bases.
[63]
In respect of the first basis, Mr Welsh aligned himself with and adopted Mr O'Neill's
submissions on behalf of the petitioners in relation to the proper construction of the 1982 Act
and, in particular, Schedule 2. In this regard, and specifically on the question of remedy,
Mr Welsh drew my attention to the decision of the English Court of Appeal in Amid v
Kirklees Metropolitan Borough Council [2001] EWCA Civ 582 per Sedley LJ at [17], [20] and [21].
On this point, the relevant test was whether, had the respondent's committee been properly
advised, it might have reached a different decision in respect of the nil determination. In
32
other words, was there a realistic possibility of this occurring. Given how narrowly the
respondent's Committee had passed the nil determination, Mr Welsh noted that even a
small difference might have led to a different outcome.
[64]
The second basis upon which the additional party advanced its first ground was
based on the Committee's reference to the Equally Safe document produced by the Scottish
Government. This document contains the following definition of violence against women
and girls:
"Violence against women and girls encompasses (but is not limited to):
» physical, sexual and psychological violence occurring in the family (including
children and young people), within the general community or in institutions,
including domestic abuse, rape, and incest;
» sexual harassment, bullying and intimidation in any public or private space,
including work;
» commercial sexual exploitation, including prostitution, lap dancing, stripping,
pornography and trafficking;
» child sexual abuse, including familial sexual abuse, child sexual exploitation and
online abuse;
» so called `honour based' violence, including dowry related violence, female genital
mutilation, forced and child marriages, and `honour' crimes."
[65]
Mr Welsh submitted that this definition had to be seen in the context of what was
said in the forward to the document:
"Equally Safe is our country's strategy to take action on all forms of violence against
women and girls. By this we mean the violent and abusive behaviour carried out
predominantly by men directed at women and girls precisely because of their
gender. Behaviour that stems from systemic, deep-rooted women's inequality, and
which includes domestic abuse, rape, sexual assault, commercial sexual exploitation
(like prostitution), and so called `honour based' violence like female genital
mutilation and forced marriage."
Read in this context, it was apparent, Mr Welsh contended that the strategy was directed
against violent and abusive behaviour. Stripping was included in the definition of "violence
33
against women and girls" insofar as it formed part of the commercial sexual exploitation of
women and girls and not more generally. Mr Welsh pointed out that there was no other
reference to stripping in the Equally Safe document.
[66]
The short point advanced by Mr Welsh was that it was apparent from what was said
by two of the members of the respondent's committee during the course of the meeting on
31 March 2022 that they had misunderstood and had misapplied this definition . In
particular, it did not appear that these members of the respondent's committee had
recognised the inherent tension between the inclusion of stripping within the definition o f
violence against women and girls, on the one hand, and the fact that the Air Weapons and
Licensing (Scotland) Act 2015 introduced a legislative scheme for licensing that very activity.
This tension had been recognised in the Guidance produced by the Scottish Government in
respect of the 2015 Act (at paragraphs [20] and [21]).
[67]
As such, Mr Welsh argued the respondent's committee had misdirected itself and
had had regard to an irrelevant factor.
Indirect discrimination
[68]
The second ground advanced by the additional party was that the respondent's
decision constituted indirect discrimination contrary to section 29(6) of the Equality Act 2010
which provides:
"A person must not, in the exercise of a public function that is not the provision of a
service to the public or a section of the public, do anything that constitutes
discrimination, harassment or victimisation."
[69]
The definition of what constitutes indirect discrimination is set put in section 19 of
the 2010 Act:
34
"(1) A person (A) discriminates against another (B) if A applies to B a provision,
criterion or practice which is discriminatory in relation to a relevant protected
characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is
discriminatory in relation to a relevant protected characteristic of B's if--
(a) A applies, or would apply, it to persons with whom B does not share the
characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a
particular disadvantage when compared with persons with whom B does not
share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate
aim."
[70]
In advancing this ground, Mr Welsh started by noting that it was accepted by the
respondent in its answers that the nil determination is a "provision, criterion or practice" for
the purposes of section 19. Furthermore, the respondent accepts that the nil determination
would put women at a particular disadvantage in comparison with others who share the
protected characteristic of sex. Accordingly, the question was only whether section 19(2)(c)
and (d) had been satisfied.
[71]
In relation to section 19(2)(c), Mr Welsh submitted that, in the present case, there was
not much of a gap between (b) and (c). He urged me to reject the respondent's response that
the additional party's argument was premature. It was clear from the wording of
section 19(2) and the use of the words "would apply" and "would put" that it was not
necessary for the provision in question to have been actually put into practice. This was also
consistent with the Statutory Code of Practice which stated expressly at paragraph 5.8 that:
"It is a requirement of the Act that the provision, criterion or practice puts or would
put people who share the service user's protected characteristic at a particular
disadvantage when compared with people who do not have that characteristic. The
Act also requires that it puts or would put the particular service user at that
disadvantage. This allows challenges to provisions, criteria or practices which have
35
not yet been applied but which would have a discriminatory effect if they were."
(Emphasis added).
[72]
In this regard, Mr Welsh drew my attention to affidavits which had been lodged by
three members of the additional party setting out the impact that the nil determination
would have on them.
[73]
Provided that the Court is satisfied that the requirements of section 19(2)(a) to (c) are
satisfied, the onus then shifts to the respondent to establish the justification (R (Independent
Workers Union) v Mayor of London (CA) [2020] 4 WLR 112 at [37] citing Bilka Kaufhaus GmbH v
Karin Webster von Hartz (Case 170/84) [1986] ECR 1607 at paragraphs 35 to 36). Furthermore,
the Court required to conduct its own assessment of evidence put forward in order to decide
whether an impugned measure was a proportionate means of achieving a legitimate aim.
The court was not merely exercising a review jurisdiction.
[74]
In the present case, Mr Welsh submitted that the respondent had neither averred nor
led evidence to enable the requirement of section 19(2)(d) to be determined. It followed that
the respondent could not succeed in demonstrating that the nil determination was
proportionate.
Public Sector Equality Duty
[75]
The third ground advanced by the additional party was that the respondent had
failed to comply with the Public Sector Equality Duty in terms of section 149(1) of the
Equality Act 2010. This section provides as follows:
"(1) A public authority must, in the exercise of its functions, have due regard to the
need to--
(a) eliminate discrimination, harassment, victimisation and any other conduct
that is prohibited by or under this Act;
36
(b) advance equality of opportunity between persons who share a relevant
protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected
characteristic and persons who do not share it."
[76]
There was no dispute that this duty applied to the respondent in relation to making
the Decision and, in particular, the nil determination.
[77]
Mr Welsh submitted that correct approach to this duty was set out in McHattie v
South Ayrshire Council [2020] CSOH 4 in the opinion of Lord Boyd of Duncansby at
paragraph [24] by reference to the judgement of Lord Justice McCombe in the English Court
of Appeal decision of R (Bracking) v Secretary of State for Work and Pensions
[2013] EWCA Civ 1345:
"i) The public authority decision maker must be aware of the duty to have `due
regard' to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being
considered;
iii) The duty must be `exercised in substance, with rigour, and with an open mind'. It
is not a question of `ticking boxes'; while there is no duty to make express reference
to the regard paid to the relevant duty, reference to it and to the relevant criteria
reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one."
[78]
Mr Welsh emphasised that the duty is an onerous one. Its purpose is to create an
atmosphere in which decisions are to be taken. The duty was not delegable.
[79]
Against that background, Mr Welsh submitted that the respondent had failed to
demonstrate that the duty had been complied with . Although an Integrated Impact
Assessment had been produced and had been before the respondent's Committee, this was
not sufficient. The assessment identified the discriminatory effect of the nil determination if
implemented. However, it failed to address how that negative effect might be minimised,
mitigated or otherwise addressed.
37
Article 8 ECHR
[80]
The final ground advanced by the additional party was that the respondent's
Decision constituted a disproportionate interference with the rights of its members in terms
Article 8 of the European Convention of Human Rights.
[81]
As a preliminary point, Mr Welsh recognised that the additional party required to
demonstrate that it, as a trade union, was entitled to bring proceedings in terms of section
7(1) of the Human Rights Act 1998. That section requires that the person bringing
proceedings against a public authority must be the victim of the alleged unlawful act .
Mr Welsh submitted that representative claims were permissible in terms of the Strasbourg
jurisprudence where to find otherwise would mean that the protection of rights under the
Convention became ineffectual and illusory. He accepted that Strasbourg does not
countenance applications that are an actio popularis which raise issues in the abstract without
reference to the individuals whose rights have been interfered with . Mr Welsh was clear
that the present intervention by the additional party was not such. He reminded me of the
affidavits from three women, members of the additional party, who worked in the
establishments operated by the petitioners and are, therefore, affected by the respondent's
Decision. Mr Welsh emphasised that he was not urging the Court to go beyond what had
been allowed by the Strasbourg Court. In this regard, Mr Welsh referred me to a line of
three decisions of the European Court of Human Rights: Lizarraga v Spain (2007) EHRR 45;
Beizaras and Levickas v Lithuania (Case 41288/15); and Centre of Societies for Krishna
Consciousness in Russia (Case 37477/11).
[82]
Mr Welsh submitted that, in the circumstances of the present proceedings, there were
a number of factors which meant, in combination, that the members of the additional party
required to utilise it as the means of vindicating their rights in respect of the respondent's
38
decision. He pointed to what he described as the prohibitive costs of entering proceedings
together with the costs risks associated with being a party to ongoing proceedings. He also
highlighted the fact that without the protection of anonymity, the additional party's
members were at risk of victimisation and harassment.
[83]
Turing to the merits of the argument in terms of Article 8, Mr Welsh submitted that
the rights of the additional party's members were engaged. Mr Welsh advanced this
submission on the basis that the Strasbourg Court had recognised that Article 8 could be
engaged where an impugned measure had a seriously negative effect on the individual's
private life (Denisov v Ukraine (Case 76639/11). In considering whether or not this threshold
had been reached, the Court considered (i) the impact on the individual's "inner circle"; (ii)
the individual's opportunities to establish and develop relationships with others; and (iii)
the impact on the individual's reputation. In this regard, Mr Welsh also drew my attention
to the decision of the Court in Platini v Switzerland (Case 526/18) albeit it was only available
in French and in an unofficial translation from French and Gumenyuk and others v Ukraine
(Case 11423/19).
[84]
On this basis, Mr Welsh submitted that the consequences of the respondent's
Decision were so severe in respect of the additional party's members as to engage Article 8.
He referred me again to the three affidavits prepared by women who worked in the
establishments operated by the petitioners. These referred to significant disruption to the
women concerned consequent upon the closing of these establishments including financial
hardship; the breaking up of families and the need to move away from Edinburgh.
[85]
If the rights of the additional party's member in terms of Article 8 were engaged, it
would be necessary for the respondent to demonstrate that its Decision and, in particular,
the nil determination, was proportionate. However, for reasons akin to those that he had
39
advanced in respect of the ground based on indirect discrimination, Mr Welsh submitted
that the respondent had simply not meaningfully engaged with the issue of proportionality.
Submissions for the respondent
[86]
Ms O'Neill for the respondent began her submissions by moving me to dismiss the
petition and to sustain her first plea in law.
The Legislative Background
[87]
Ms O'Neill began by making the point that the legislative framework established by
the Air Weapons and Licensing (Scotland) Act 2015 was designed to enable local authorities
such as the respondent to licence SEVs and, thereby, to bring previously unregulated
activity within the framework of the Civic Government (Scotland) Act 1982.
[88]
The rationale and purpose of the 2015 Act was set out in the Policy Memorandum
which accompanied the Bill. Ms O'Neill referred to the following passage which was
specifically in relation to the licensing of SEVs:
"250. The view of the Scottish Government is that a specific licensing regime for
sexual entertainment venues (of which the Scottish Government believes there are
around 20 in Scotland) is the best solution for future regulation of the industry. It
removes uncertainty around attempting to regulate under alcohol licensing matters
that go beyond the remit of that scheme. It offers local licensing authorities the
ability to consider local circumstances and develop approaches appropriate to those
circumstances. This would include the ability to set a desired number of sexual
entertainment premises for their area (and for that number to be zero). It would also
include the ability to set conditions that control the conduct of activities on premises
in their area."
In this regard, Ms O'Neill drew my attention to the fact that the Memorandum refers to the
ability of a local authority to set a "desired number" of SEVs.
40
[89]
She also highlighted that Memorandum explained that Scottish Government was
creating a new regime for SEVs which utilised the pre-existing licensing arrangements
contained in the 1982 Act.
[90]
Finally, before leaving the Memorandum, Ms O'Neill drew my attention to a number
of passages that she argued could be read consistently with the respondent's construction of
the statutory provisions ­ namely, that the determination of an appropriate number did not
foreclose the subsequent consideration of an application. In making these submissions, she
recognised both that none of these references explicitly supported the respondent's
construction and, in any event, that the Court required to consider the provisions
themselves.
[91]
Turning to the provisions introduced by the 2015 Act, Ms O'Neill submitted that the
steps which a local authority required to take were as follows:
First, the local authority requires to resolve that Schedule 2 to the 1982 Act shall have
effect in their area from the day specified in the resolution (section 45B(1)).
Second, at least 28 days before the date specified for the coming into effect of
Schedule 2, the local authority must publish notice that it has passed the resolution
(Section 45B(4)).
Third, where a resolution has been passed, the local authority must prepare a
statement of its policy with respect to the exercise of its functions in relation to the
licensing of SEVs (Section 45C(2)).
Fourth, the local authority must publish the SEV policy statement at the same time
and in the same manner as it publishes the notice of the resolution (Section 45C(4)).
[92]
Thereafter, once the resolution had been passed, the local authority was required to
determine applications that were made to it for a licence. The local authority could not
41
consider any application for a licence before the day on which Schedule 2 was to have effect
and, at that point, the local authority was not to grant any applications until it had
considered all such applications (Paragraph 25 of Schedule 2). The local authority was
required to consider each "relevant application" made to it within 3 months of the date on
which the application was made and reach a final decision within 6 months of the end of
that 3 month period (Section 45D(2)). Where an application has been made, the local
authority must grant or refuse that application (Paragraph 9(1) of Schedule 2). Where the
authority failed to determine the licence within the prescribed period the licence is deemed
to have been granted (Section 45D(4)).
[93]
Ms O'Neill noted that none of this mechanism was disapplied or qualified by
reference to the determination made in terms of paragraph 9(5A) of Schedule 2. She
submitted that if the draftsperson had intended the Paragraph 9(5A) determination to be an
exception to the process for making and dealing with applications as was contended for by
the petitioners, then this would have been made explicit in the drafting. However, no such
distinction was made and, apparently, applications which, according to the petitioner, the
local authority was bound to refuse still required to be processed in the same way. This
process included the receipt of objections and representations (Paragraph 8 of Schedule 2).
Ms O'Neill accepted that these were issues of procedure and process but, nonetheless,
submitted that they were supportive of the respondent's construction of the legislation.
Prematurity
[94]
Ms O'Neill's short point under this heading was that none of the petitioners had
made an application for a licence. Even if such an application were to be made, it could not
be considered until 1 April 2023. In any event, the respondent's position was that, even on
42
the assumption that the determination of the appropriate number of SEVs remained nil
(which could not be assumed), that would not preclude those applications being granted.
[95]
Ms O'Neill advanced this argument on two bases. First, she submitted that when the
legislation was properly construed, a nil determination in terms of paragraph 9(5A) did not
have the effect contended for by the petitioners.
[96]
Second, she submitted that it would be open to respondent to make a new
determination in terms of Paragraph 9(5A) of Schedule 2. She submitted further that, in
light of the motion passed by the respondent on 27 October 2022 (see paragraph [18] above),
sitting in full council, to consider a report from the respondent's officers in early 2023, this
was not merely hypothetical.
The proper construction of Schedule 2
[97]
In considering the legislation, Ms O'Neill began by pointing out that the ground of
refusal linked to the determination was to be found in paragraph 9(5) and not
paragraph 9(3). The latter opened with the words "A licence under this Schedule shall not
be granted". Paragraph 9(3) could, fairly, be described as containing mandatory grounds of
refusal. This description had been used by Lord Neuberger in Miss Behavin' (above) when
referring to the equivalent paragraph within the Northern Irish provisions (at
paragraph [92]). Ms O'Neill observed that had the draftsperson wished to require the
refusal of applications over the paragraph 9(5A) determination, then paragraph 9(3) would
have been the obvious place but this had not been done.
[98]
Instead, the ground of refusal which was linked to the paragraph 9(5A)
determination was to be found in paragraph 9(5)(c). The grounds in paragraph 9(5) were
referred to in paragraph 9(4). The opening of paragraph 9(4) was couched in language that
43
was redolent of the exercise of discretion: "But without prejudice to sub-paragraph (3) above, the
local authority shall refuse an application for the grant or renewal of a licence if, in their opinion, one
or more of the grounds specified in sub-paragraph (5) below apply." In respect of these grounds,
the local authority was being asked to form an opinion as to their application. She also
pointed out that paragraph 9(5)(c) does not refer, in terms, to the determination made in
paragraph 9(5A). For example, the provisions did not state expressly that the local authority
was bound by the determination made in terms of paragraph 9(5A).
[99]
Ms O'Neill continued that, on the respondent's construction, the determination made
in terms of paragraph 9(5A) continued to be of importance. It was, in her submission,
designed to create transparency and give guidance. Importantly, however, it was not in her
submission designed, in itself, to preclude or prevent the subsequent grant of applications.
[100]
Ms O'Neill submitted that in considering the relevant legislative provisions, I
required to have regard to analogous provisions in other areas of licensing law together with
the way in which those provisions had been construed by the courts.
[101]
In this regard, Ms O'Neill draw my attention to Section 10(3) of the 1982 Act which
provided that:
"...the grant of a taxi licence may be refused by a licensing authority for the purpose
of limiting the number of taxis in respect of which licence are granted by them if, but
only if, they are satisfied that there is no significant demand for the services of taxis
in their area which is unmet."
[102]
This provision had been considered by the Inner House in Coyle v City of Glasgow
Council 1997 SC 370. In that case, the council had determined that 1428 was the number of
taxi licences which were required to meet the demand for taxi services. It had then refused
an application for a taxi licence on the basis that the limit which the council had set had been
44
reached. The Lord President, Lord Rodger, in giving the opinion of the Court, construed
section 10(3) as follows:
"Section 10(3) gives the committee a discretion to refuse to grant a licence 'if, but only
if, they are satisfied that there is no significant demand for the services of taxis in
their area which is unmet'. Two things stand out. First, the use of the phrase 'if, but
only if' emphasises how tightly this discretion is drawn. Secondly, the use of the
present tense throughout the condition shows that the committee's assessmen t must
be made in relation to the situation at the time when the application falls to be
considered, in this case 10 April 1996. In other words when making their decision
the committee required to be aware of the current demand for the services of taxis
and to be satisfied that there was no significant unmet demand for those services."
(at page 372)
[103]
Ms O'Neill submitted that the Court's approach to section 10(3) would have been
known to the draftsperson adapting Schedule 2 for the purposes of SEVs. She recognised
that there were a number of differences in the wording used in section 10(3) and
Paragraph 9 of Schedule 2. In particular, she accepted that section 10(3) used "may be
refused" as opposed to "shall refuse" in paragraph 9(4). Furthermore, there was no
equivalent of paragraph 9(5A). However, she submitted that when the discretionary nature
of the language in paragraph 9(4) was considered, these differences were not significant.
[104]
Ms O'Neill also referred me to the Licensing (Scotland) Act 2005 which provides for
licensing the sale of alcohol. This requires a Licensing Board to prepare and publish a
licensing policy statement that includes, among other things, a statement as to the extent to
which the Board considers there to be overprovision of licensed premises within the Board's
area (Section 7). The provisions which then deal with the determination of licence
applications provide that the Board must, where a ground for refusal of an application for a
licence exists, refuse the relevant application (section 23(4)). Furthermore, one of the
grounds for refusal is that the Board considers that, if the application were to be granted,
there would, as a result, be overprovision of licenses premises (s23(5)(e)). These provisions
45
were considered by the learned Sheriff Principal of North Strathclyde in Martin McColl
Limited v West Dunbartonshire Licensing Board 2018 SLT (Sh Ct) 322. Ms O'Neill drew my
attention in particular to the learned Sheriff Principal's comment on the policy statement:
"The effect of the policy is to create a rebuttable presumption against the grant of an
application where overprovision has been identified. However an application still
requires to be determined on its own merits and it is understood that there may be
exceptional cases in which an applicant is able to demonstrate that the grant of the
application would not undermine the licensing objectives, or those objectives would
not be undermined if the applicant's operating plan were to be modified or the grant
of the licence made subject to appropriate conditions."
[105]
Ms O'Neill submitted that the report which had been prepared by the respondent's
officers and which was before the respondent's Committee took an approach to Schedule 2,
in general, and to the paragraph 9(5A) determination, in particular, which was consistent
with the learned Sheriff Principal in the Martin McColl case. On this approach, the
determination established a rebuttable presumption which then had to be considered in the
context of each application.
[106]
Ms O'Neill submitted that nether the petitioners nor the additional party had
provided any explanation as to why the legislation should be construed so as to deprive
local authorities from being able to exercise discretion in particular cases. As she had sought
to demonstrate by a consideration of other licensing regimes, such an approach to the
licensing of SEVs would represent a very different approach and no adequate explanation
had been put forward as to why this should be the case. If it was being contended that the
reason for the differences in the regime applicable to SEVs was to enable local authorities to
impose a complete ban, it was surprising that the legislation should apparently impose an
additional procedural hurdle in their way. Furthermore, it was all the more surprising that,
if this result was what was intended, the legislative provisions should not more explicitly
reflect this.
46
[107]
The final submission that Ms O'Neill made in response to the challenges based on
the construction of the legislation was that, even if there was an error of law ­ and that as a
matter of law the respondent's Decision of 31 March 2022 precluded the subsequent grant of
any SEV licence ­ that error was not such as to vitiate the determination that has already
been made. Ms O'Neill advanced this submission on the basis that I should infer that, but
for the supposed error, the result would almost certainly have been the same and that,
therefore, no prejudice accrued to the petitioners (or the additional party) from the error.
Any prejudice resulted from the respondent's Decision itself. In this regard, she referred me
to Douglas v Perth and Kinross Council 2017 SC 523 at paragraph [46]. When I pressed
Ms O'Neill as to the basis for this submission, she did no more than direct me to consider the
deliberations of the respondent's Committee and the transcript of the meeting on 31 March
2022 in their entirety.
Challenge to the policy statement
[108]
As a starting point, Ms O'Neill noted that the petitioners no longer advanced any
challenge based on the sequencing of the steps which had been taken by the respondent. In
other words, no criticism was made on the basis that the respondent's Committee had made
a determination in terms of paragraph 9(5A) of Schedule 2 before adopting a Sexual
Entertainment Venues licensing policy statement in terms of section 45C(2) of the 1982 Act.
[109]
Thereafter, Ms O'Neill was able to state the respondent's position in relation to the
challenge she understood to be based on the policy statement shortly. First, she noted that
no challenge had been taken to the policy statement which had been adopted by the
respondent. There was no suggestion that the statement which had been adopted was
unlawful. Second, in her submission, there was simply no requirement for the policy
47
statement adopted in terms of section 45C(2) to set out reasons for the determination made
in terms of paragraph 9(5A) of Schedule 2.
Failure to have regard to guidance issued by the Scottish Ministers
[110]
Turning to the alleged failure by the respondent's Committee to have regard to the
Scottish Government Guidance, Ms O'Neill noted that there was no dispute that the relevant
guidance - The Scottish Ministers' "Air Weapons and Licensing (Scotland) Act 2015:
Guidance on the Provisions for Licensing of Sexual Entertainment Venues and Changes to
Licensing of Theatres" (2019) ­ was before the Committee when it reached its Decision on
31 March 2022. Section 45B(7) required the respondent to "have regard to" any guidance
issued by the Scottish Ministers. Ms O'Neill submitted that the respondent's Committee had
clearly done this. The question as to what weight to attach to that guidance was a matter for
the Committee (City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 at 42
to 43 per Lord Clyde).
The Equally Safe Document
[111]
Addressing the argument advanced, on behalf of the additional party, in relation to
the Scottish Government's Equally Safe document, Ms O'Neill submitted that no clear and
relevant ground of review was disclosed by the arguments advanced on behalf of the
additional party. The additional party's argument presupposed that there was a "correct"
and, therefore, objectively verifiable, construction of the definition of "violence against
women and girls" with in the Equally Safe document. However, Ms O'Neill submitted that
this definition was not amenable to such an assessment. It was essentially a matter of policy
about which reasonable people might disagree and in respect of which there was a wealth of
academic literature. It was not for the Court to resolve these competing views and,
48
moreover, there was no basis upon which it could properly do so. As such, the respondent's
Committee could not be criticised for having had regard to either the definition or the
Equally Safe document. Furthermore, Ms O'Neill also urged caution in relation to how I
should approach the passages from the deliberations of the members of the Committee to
which Mr Welsh had drawn my attention. These were remarks made in the context of a
longer meeting and should be seen in that broader context.
Failure to provide proper and adequate reasons
[112]
In response to the challenge taken by the petitioners on the basis of the alleged
inadequacy of the reasons given by the respondent, Ms O'Neill began by highlighting the
fact that, within the statutory scheme, whereas reasons require to be given, on request, in
respect of decision in relation to a particular application (paragraph 23(2) of Schedule 2),
there was no equivalent provision in respect of a determination made in terms of
paragraph 9(5A).
[113]
According to Ms O'Neill, this distinction was entirely appropriate. The
determination as to the appropriate number of SEVs for their area was a policy decision . In
this regard, Ms O'Neill referred to the decision of Sheriff Ross (as he then was) in Tesco
Stores v City of Glasgow Licensing Board 2013 SLT (Sh Ct) 75 at paragraphs [54] to [67]. Sheriff
Ross gave a detailed analysis of the extent to which the duty to give reasons applied to the
Licensing (Scotland) Act 2005. In particular, he highlighted the fact that, under the 2005 Act,
there was no statutory duty to give reasons for the designation of overprovision required by
section 7 of the 2005 Act. Furthermore, in relation to the duty to give reasons for refusing an
application (under section 23(4)), Sheriff Ross concluded that the issue of adequacy is a
49
matter of fact and degree. In making that assessment, Sheriff Ross drew particular attention
to the wording that had been used to frame the duty imposed on the licensing board.
[114]
Ms O'Neill drew an analogy between the duty incumbent on licensing boards in
respect of overprovision contained in section 7 of the 2005 Act and the duty to determine the
appropriate number of SEVs in paragraph 9(5A) of Schedule 2. On this basis, she submitted
that as there was noduty to give reasons in respect of section 7 of the 2005 Act, there was
also no such duty in relation to the paragraph 9(5A) duty.
[115]
In the alternative, she submitted that I should approach the content of any such duty
as had been done in Tesco Stores. The reasons given did not require to be elaborate or
detailed. As such, when the terms of the Committee's discussion together with the minutes
recording their decision, were considered, the respondent had discharged any duty
incumbent on it to give reasons. An informed reader considering this material would not
have been in any doubt as to either the reasons for the determination or the material
considerations taken into account.
[116]
Finally, on this issue, Ms O'Neill submitted that, in the present case where a report
had been submitted to the Committee which set out two options and the Committee went on
to choose one of those options, it was also open to me to infer the Committee's reasoning
from the report. In this regard, Ms O'Neill referred to Oakley v South Cambridgeshire District
Council [2017] 1 WLR 3765 at paragraph [65] as an illustration of this type of situation.
Failure to inform itself of the relevant facts
[117]
In response to this challenge, Ms O'Neill submitted that it was apparent from the
material before the Court that the respondent had gone to considerable lengths to inform
itself of the facts that might be relevant to the determination . She also noted that the
50
petitioners had not identified specific facts about which the respondent had allegedly failed
to inform itself.
[118]
Ms O'Neill accepted that the relevant principles applicable in this area had been set
out in Balajigari (above) referred to by the petitioners. However, she submitted that it was
important to have regard to the nature of the decision which the respondent was taking in
making a determination in terms of Paragraph 9(5A). This was a policy decision. It was not
a decision which depended upon proof of harm by reference to empirical evidence.
EU law arguments
[119]
In dealing with the petitioner's arguments based on EU law, Ms O'Neill dealt first
with the position of the fourth petitioner. She submitted that the fourth petitioner's rights
were not engaged by the respondent's Decision. Put another way, the fourth petitioner's
rights did not require the grant of an SEV licence. The Decision was not directed in any
respect at the fourth petitioner's employment relationship and it did not seek to impose
restrictions or limitations based on residence or nationality. It was not intrinsically liable to
affect workers who are nationals of other member states more than national workers (see
Case C-437/17 Gemeinsamer Betriebsrat EurothermenResort Bad Schallerbach GmbH v
EurothermenResort Bad Schallerbach GmbH (13 March 2019) at [19]). In any event, even if the
fourth petitioner's rights were engaged, then the respondent's Decision both pursued a
legitimate aim and was proportionate.
[120]
Turning to the EU law argument advanced on behalf of the first to third petitioners,
Ms O'Neill raised a preliminary point. She submitted that these were new arguments for
which permission had not been granted. She contended that it was unfair for the
51
respondent to have to deal with new arguments being brought in only at the point of
adjustment of the petition.
[121]
In terms of the merits, Ms O'Neill accepted that the Provision of Services Regulations
2009 (as amended) remained in force and formed part of retained EU law by virtue of
section 2 of the European Union (Withdrawal) Act 2018. She also accepted that relevant
"authorisation scheme" relating to SEVs comprised the provisions of the 1982 Act together
with the respondent's Decision. Beyond consideration of the 2009 Regulations, she
submitted that the first to third petitioners had no retained EU law rights to rely upon.
[122]
In relation to Regulation 15, Ms O'Neill submitted that whether or not she was
correct as to the correct construction of Schedule 2 of the 1982 Act, there had been no failure
to comply by the respondent. She submitted that it could not be the case that the mere
exercise of a discretion constituted arbitrariness in terms of Regulation 15. Otherwise, all
decisions taken in relation to licensing would fall foul of it. As to transparency, she drew
attention to the fact that both the policy statement and the determination were published in
advance of the coming into force of the licensing regime. As to proportionality, she
submitted that for the reasons she would set out in relation to the Human Rights arguments
advanced by the petitioners and additional party, the respondent's Decision was both
pursuing a legitimate aim and was proportionate.
[123]
Ms O'Neill dealt with the challenges based on Human Rights raised by the
petitioners and the additional party separately as different issues arose in relation to each.
Article 1 of the First Protocol ECHR
[124]
In relation to the arguments advanced by the first to third petitioners based on their
rights in terms of Article 1 of the First Protocol, Ms O'Neill started by highlighting that, on
52
her argument, the determination was not in itself a deprivation, control or other form of
interference with the petitioner's possessions. The issue of proportionality could only be
considered in the context of a particular application.
[125]
However, even if she was wrong as to the correct construction of the 1982 Act, she
submitted that the respondent's Decision was still compatible with the rights of the first to
third petitioners. In support of this submission, she advanced a series of propositions based
on the judgments in Miss Behavin' (above).
First, in considering whether a public body such as the respondent has acted
compatibly with Convention rights the Court is concerned with the merits of the
decision that has been taken and not the adequacy of the decision -making process
adopted by the public body in reaching its decision: Lord Hoffmann at
paragraph [13], Baroness Hale at paragraph [31] and Lord Mance at paragraph [44].
Second, it is for the Court to consider the justification for the measure in question on
its merits, regardless of whether the decision-maker had done so: Baroness Hale at
paragraph [31].
Third, while the extent to which a public body has in fact weighed competing
considerations will inform the Court's analysis of a measure's proportionality,
proportionality is not to be judged by reference to the quality of the debate which
proceeded a measure's adoption: Lord Rodger of Earlsferry at paragraph [24], (by
reference to R (SB) v Governors of Denbigh High School [2007] 1 AC 100).
Fourth, in assessing the Convention compatibility of a measure such as the licensing
of sex shops (or SEVs) the Court "is bound to acknowledge that the local authority is
much better placed than the court to decide whether the right of sex shop owners to
sell pornographic literature and images should be restricted for the prevention of
53
disorder or crime, for the protection of health or morals, or for the protection of the
rights of others.": Baroness Hale at paragraph [37].
Fifth, to the extent that Article 1 of Protocol 1 is engaged at all, it operates, in this
context, at very low level: Lord Hoffmann, at paragraph [16] and Lady Hale at
paragraph [38]. As the right to vend pornography is not the most important right in
a democratic society, nor is the right to operate a sexual entertainment venue.
Sixth, the extent of debate or consideration (or lack of it) that might be expected to be
had reflects the (relative lack of) importance of the rights of operators in this context:
"in a case like the present, it is hard to see what anyone could have said beyond
reciting the value of the right to sell and use the pornographic material. Similarly,
the value of that right is all that the council could have been expected to consider.
So, at most, the council are criticised for failing to take into account what can only be
the modest value of that right": Lord Rodger, at paragraph [28].
Seventh, where the question is one of control of use member states are accorded a
wide margin of appreciation (or in the domestic context a generous discretionary
area of judgment) when striking the balance between the general interest of the
community and the protection of individual rights: Lord Neuberger of Abbotsbury,
at paragraph [99], (by reference to Jacobson v Sweden (1989) 12 EHRR 56).
Finally, given that revocation of an existing licence "with its substantial detrimental
effect" can be justified, it is hard to conceive of circumstances in which the refusal of
a grant of a licence in this context could amount to an infringement of the property
owner's A1P1 rights: Lord Neuberger, at paragraph [102] by reference to Fredin v
Sweden (1991) 13 EHRR 784
54
[126]
Turning to the Respondent's Decision, Ms O'Neill began by observing that there was
no dispute that the legislation clearly enabled the respondent to make a nil determination.
Furthermore, no challenge was taken against the legislation itself. It also appeared to be
accepted that the respondent's aims of preventing public nuisance, crime and disorder;
securing public safety; protecting children and young people from harm; and reducing
violence against women were legitimate. These aims had been set out in the report which
was before the respondent's Committee. The Committee had also had before it competing
representations on the question of the appropriate number of SEVs together with evidence
as to the potential impact on operators such as the first to third petitioners. In this type of
situation involving issues about which opinions in a democratic society may differ,
Ms O'Neill submitted that the respondent was entitled to conclude that determining the
appropriate number of SEVs at zero was proportionate to its legitimate aim. In this regard,
she referred to James v United Kingdom [1986] 8 EHRR 123 at paragraph [46]). This was
particularly so, where, as here, the rights relied upon by the petitioners operated at a "low
level".
[127]
Ms O'Neill also rejected the petitioner's submission that the assertion of Convention
rights in an EU law context made any significant difference. She submitted that, for present
purposes, she could detect no significant difference in the Court's approach in Lumsdon
(above).
Article 8 ECHR
[128]
In respect of the additional party's arguments based on Article 8 of the Convention,
the respondent's principal response was that the additional party had no standing to make
this argument. A person who claims that a public body has acted (or proposed to act) in a
55
way made unlawful by section 6 of the Human Rights Act 1998 may bring proceedings in
the appropriate court but only if he or she is (or would be) a victim of the unlawful act ­
Human Rights Act 1998, section 7(1). For the purposes of section 7, a person is a victim of an
unlawful act only if he or she would be a victim for the purposes of Article 34 of the
Convention if proceedings were brought in the European Court of Human Rights in respect
of that act - Human Rights Act 1998, section 7(7).
[129]
Against this background, Ms O'Neill's short submission was that the additional
party was, in itself, neither a victim nor would it have such standing before the Strasbourg
Court. Ms O'Neill drew my attention to the case of Yusufeli lçesini Güzelletirme Yaatma
Kültür Varliklarini Koruma Dernei v Turkey, (Application no. 37857/14, 7 December 2021), at
paragraphs 38 to 43:
"38. According to the Court's established case-law, associations will normally only
be granted victim status if they have been directly affected by the measure in
question .... It is important to reiterate in this respect that the sole fact that a non-
governmental organisation considers itself as a guardian of the collective interests of
its members does not suffice to make it a victim within the meaning of Article 34 of
the Convention (see Kalifagiannis and Prospert v. Greece (dec.), § 50, no. 74435/14, 9
June 2020). That is because the Convention does not envisage the bringing of an actio
popularis for the interpretation of the rights set out therein or permit individuals to
complain about a provision of national law simply because they consider, without
having been directly affected by it, that it may contravene the Convention (see Aksu,
cited above, § 50, and Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR
2008).
39. The Court reiterates that, like the other provisions of the Convention, the term
"victim" in Article 34 must also be interpreted in an evolutive manner in the light of
conditions in contemporary society. Indeed, in modern day societies, when citizens
are confronted with particularly complex administrative decisions, recourse to
collective bodies such as associations is one of the accessible means ­ sometimes the
only means ­ available to them whereby they can defend their particular interests
effectively. Moreover, the standing of associations to bring legal proceedings in
defence of their members' interests is recognised by the legislation of most European
countries (see Gorraiz Lizarraga and Others, cited above, § 38, and Beizaras and
Levickas v. Lithuania, no. 41288/15, § 81, 14 January 2020)
56
40. In this regard the Court reiterates that it has granted victim status to associations
in cases relating to Article 6 § 1 of the Convention in respect of proceedings where
the substance of the applicant association's claim before the domestic courts
concerned its members' interests in respect of their private lives, families and homes
and their right to participate in the decision making process (see, in particular,
Gorraiz Lizarraga and Others, cited above, §§ 9-10, 32... Having regard to the fact that
the applicant associations in question had been set up with the specific purpose of
defending their members' interests before the courts, that their members were
directly affected by the impugned measures in question and that they had been
granted legal standing in the domestic proceedings, the Court did not regard their
respective applications as constituting, respectively, an actio popularis and examined
the cases from the standpoint of Article 6 § 1 of the Convention.
41. According to the above-cited case-law, there are two principal reasons why an
association may not be considered to be a direct victim of an alleged violation of the
Convention. The first reason is the prohibition on the bringing of an actio popularis
under the Convention system; this means that an applicant cannot lodge a claim in
the public or general interest if the impugned measure or act does not affect h im or
her directly. It follows that in order for an applicant to be able to argue that he is a
victim, he must produce reasonable and convincing evidence of the likelihood that a
violation affecting him personally will occur; mere suspicion or conjecture is
insufficient in this respect (see Centre for Legal Resources on behalf of Valentin
Câmpeanu, cited above, § 101). The second reason concerns the nature of the
Convention right at stake and the manner in which it has been invoked by the
applicant association in question. Certain Convention rights, such as those under
Article 2, 3 and 5, by their nature, are not susceptible of being exercised by an
association, but only by its members... In Asselbourg and Others (cited above), when
declining to grant victim status to the applicant association, the Court noted that the
applicant association could only act as a representative of its members or employees,
in the same way as, for example, a lawyer represented his client, but could not itself
claim to be the victim of a violation of Article 8."
[130]
Based on the Court's approach in this case, Ms O'Neill submitted that the additional
party would not be accorded victim status before the Strasbourg Court . In the present case,
the additional party based this part of its challenge to the respondent's Decision on the
alleged interference with the rights of its members to a private life in terms of Article 8. That
was a right which could only be asserted by those members and not by the additional party
on their behalves. This was not analogous to those cases where the Strasbourg Court had
granted victim status to an association which was itself integrally involved in litigation
which also involved its members such as the Lizarraga case (above) referred to by Mr Welsh.
57
In this regard, Ms O'Neill highlighted that it was important to appreciate that in both the
Lizarraga case and the Beizaras and Levickas cases relied upon by Mr Welsh, the individual
victims were, unlike in the present proceedings, parties before the Strasbourg Court. The
issue in those cases was one concerning the exhaustion (or otherwise) of domestic remedies.
In the third case relied upon by Mr Welsh, the Centre of Societies for Krishna Consciousness
case (above), the Court had held that the Centre was itself a victim of the hostile speech
targeting the Krishna movement.
[131]
Ms O'Neill submitted that there were important reasons why it was not appropriate
for a body such as the additional party to advance claims wh ich were personal to its
individual members. The additional party's Convention rights claim concerned an aspect of
Article 8 of the Convention that required the complainer to demonstrate serious negative
effects on their private life, on their 'inner circle' and on their opportunities to establish and
develop relationships with others. The Court must be satisfied that it has compelling
evidence that the requisite threshold of severity has been attained. Any such breach is
inevitably highly personal and fact specific. Ms O'Neill submitted that it is not appropriate
(and is not reflective of Strasbourg case law) to treat a representative party such as a trade
union as having victim status based on averments and submissions about 'some' of its
members. The additional party's members were not a homogenous group and the impact of
the respondent's Decision on them cannot be assumed to be the same on all of them.
[132]
In respect of the merits of the additional party's Article 8 challenge, Ms O'Neill
submitted that, based on the material which had been lodged by the additional party, the
threshold in the Denisov case (above) had not been met. She submitted that the respondent's
Decision in no way amounted to denigration of the reputations of the additional party's
members. She pointed out that on the facts of the Denisov case itself, the Court did not
58
consider that there had been a breach of Article 8 notwithstanding the fact that, in that case,
the applicant had demonstrated a reduction in salary and prospective pension benefits. The
Court had not been satisfied that the "inner circle" of the applicant's private life had been
affected. Ms O'Neill submitted further that the Platini case fell to be distinguished on its
particular facts.
[133]
Finally, Ms O'Neill referred me to R (Independent Workers' Union GB) v Mayor of
London (QBD) [2019] 4 WLR 118. This was a first instance decision dealing with a challenge
to changes to the Congestion Charge in London to remove an exemption for taxis and
private hire vehicles. The challenge had been brought by, among others, two individual
claimants. Mr Justice Lewis had concluded that the changes did not involve an interference
within the meaning of Article 8(1) of the Convention.
"92 The removal of an exemption from the congestion charge for private hire
vehicles does not involve an interference within the meaning of Article 8.1 of the
ECHR. It is a measure concerned with managing the use of the available road
system and seeks to remove the exemption from liability to charges for one group of
vehicles, namely private hire vehicles. As with many legislative changes to a
regulatory scheme, those affected by the changes may well have to adapt their
behaviour in response to the changes. The fact that a person may have to work
different or longer hours, or both, in order to earn enough to pay increased
overheads because of a change in the regulatory scheme would not normally give
rise to an interference with private or family life within the meaning of Article 8.1 of
the ECHR. Not all changes in a regulatory scheme, even those which have economic
impacts for individuals, involve an interference within Article 8.1 which has to be
justified under Article 8.2 of the ECHR...."
Although the decision had been appealed, the claims based on Article 8 had not been
renewed on appeal.
[134]
Ms O'Neill dealt finally with the arguments advanced by the additional party in
respect of the Public Sector Equality Duty and alleged indirect discrimin ation.
59
Public Sector Equality Duty
[135]
In relation to the Public Sector Equality Duty, Ms O'Neill's starting point was the
judgment of the English Court of Appeal in R (Sheakh) v London Borough of Lambeth Council
[2022] EWCA 457 at paragraph [10]. Ms O'Neill also relied on the way in which the Court of
Appeal had treated the principles in Bracking (above) which had been referred to by
Mr Welsh. The Court in Sheakh had described these as "principles" as opposed to
"requirements" and noted that they were no substitute for the language of the statute (at
paragraph 13).
[136]
Turning to the respondent's Decision, the Regulatory Committee had had an
Integrated Impact Assessment before it. That Assessment recorded the evidence available to
the respondent including the consultation responses and the steps taken to engage in the
process of developing the respondent's policy in relation to SEVs. The Assessment also
records the potential positive and negative impacts of the respondent's policy on, among
others, the women who work at such venues. Ms O'Neill submitted that I was entitled to
draw inferences from the materials placed before the respondent's Committee and the
minutes of the discussion before it (R (Jewish Rights Watch) v Leicester City Council [2019]
PTSR 488 per Sales LJ (as he then was) at paragraph 34). Ms O'Neill submitted that, if
nothing else was clear from the materials before the respondent's Committee, it was
apparent that the interests of women and girls had been at the centre of the discussion.
Indirect discrimination
[137]
Finally, in response to the additional party's argument based on section 19 of the
Equality Act 2010, Ms O'Neill accepted that the determination of the appropriate number of
SEVs under paragraph 9(5A) of Schedule 2 of the 1982 Act was a "provision, criterion or
60
practice" in terms of that section which would put women who work in SEVs at a particular
disadvantage in comparison with others who do not share their protected characteristic of
sex. However, Ms O'Neill submitted that, at this stage, it was not possible to carry out the
adjudication exercise required by section 19(2) of the 2010 Act because it was impossible to
know at this stage who would be affected and to what degree.
[138]
Ms O'Neill contended that the additional party's argument was premature not just
on the basis of the respondent's argument as to the proper construction of the 1982 Act but
also because of the motion passed by the respondent on 27 October 2022 which expressly
refers to the need for support measures for workers who may be affected. Ms O'Neill
submitted that a similar approach had been taken by Mr Justice Linden in considering
whether to grant permission for judicial review in R (The 3Million Ltd) v Secretary of State for
the Home Department [2021] EWHC 1159 (Admin). She accepted that this decision was not in
any way binding but suggested that it provided an example of the very real difficulties
which would arise in trying to address the indirect discrimination arguments at this stage.
Reply by the additional party
[139]
In a short reply, Mr Welsh submitted that the respondent's reliance on Martin McColl
(above) failed to appreciate the essential difference between a determination of the
appropriate number of SEVs for the area of the local authority in terms of paragraph 9(5A)
of Schedule 2, on the one hand, and a statement as to the extent to which a licensing board
considers there to be an overprovision of licensed premises in any locality in terms of section
7 of the 2005 Act, on the other. The former was a black and white cap which was given
effect to in the automatic refusal of any applications made in excess of that cap required by
61
paragraphs 9(4) and 9(5)(c) of Schedule 2. The latter clearly required the Licensing Board to
exercise discretion as was reflected in section 23(5)(e) of the 2005 Act.
Reply by the petitioners
[140]
Mr O'Neill noted that Ms O'Neill had rhetorically asked during her submission -
why should the statutory regime for SEVs be different from other licensing regimes?
Mr O'Neill's answer to this was that what was different was that the regime for SEVs
expressly provided the local authority with the power to ban SEVs from its area. Local
authorities were empowered to do this by determining that the appropriate number was to
be zero. If this step were properly taken, there would be no SEVs. This would explain why
the provisions were worded differently from those which were considered in Miss Behavin'
(above). In that case, although there had been a nil determination, the local authority had
still required to consider applications and properly exercise its discretion in that regard.
Mr O'Neill submitted further that one could see an inherent difference in this regard
between SEVs, which a local authority might wish to ban completely, and other licensed
services such as taxis or the same of alcohol. This difference was reflected in the different
approaches to and wording of the applicable licensing regimes.
[141]
In relation to the need for the respondent to give reasons for its paragraph 9(5A)
determination, Mr O'Neill submitted that one had to have regard to the SEV policy
statement to be prepared in terms of section 45C. This was to state the local authority's
policy as to the exercise of its functions in relation to licensing SEVs (section 45(2)) and the
local authority was required to have regard to the statement when exercising its functions in
relation to licensing SEVs (section 45(7)). As such, the policy statement should be consistent
with and explain the determination which was to be made regard having been had to the
62
policy statement. Such an approach was also consistent with Regulation 15 of the Provision
of Services Regulations 2009.
[142]
By contrast, the respondent's position was nonsensical. There was, on the
respondent's argument, apparently no requirement to give reasons for the paragraph 9(5A)
determination but there was in respect of the individual applications which were, at the very
least, significantly affected by the earlier determination, if not, in fact, pre-determined by it.
Decision
[143]
Having had the benefit of and carefully considered the submissions made both orally
and in writing, it appears to me that the critical difference between the parties is the proper
construction of those provisions of the Civic Government (Scotland) Act 1982 which were
introduced by the Air Weapons and Licensing (Scotland) Act 2015. Notwithstanding the
lengthy submissions that I have heard, I consider that this issue is essentially determinative
of the present case.
Schedule 2 of the Civic Government (Scotland) Act 1982
[144]
As I have set out above, the petitioners and the additional party submit that the nil
determination made by the respondent in terms of paragraph 9(5A) of Schedule 2 of the 1982
Act has the effect of constituting a ban on SEVs in the respondent's area. The respondent, on
the other hand, argues that the nil determination only creates a rebuttable presumption
against the grant of an application which, despite the determination, can still be granted by
the respondent in its discretion.
[145]
In short, I consider that the petitioners and the additional party are correct. I have
reached this conclusion for the following reasons.
63
[146]
First, I consider that this conclusion is compelled by the wording of Schedule 2 and,
in particular, paragraphs 9(4), 9(5)(c) and 9(5A).
[147]
In terms of the paragraph 9(4), the local authority "shall" refuse an application if, in
their opinion, one or more grounds specified in paragraph 9(5) apply. This wording makes
clear that when one or more of the grounds set down in paragraph 9(5) apply, the local
authority requires to refuse the application.
[148]
I accept that the reference in paragraph 9(4) to the local authority's opinion as to
whether the grounds apply could suggest discretion. However, the wording of the relevant
ground ­ paragraph 9(5)(c) ­ makes it plain that there is no such discretion.
Paragraph 9(5)(c) is in the following terms:
"that the number of sexual entertainment venues in the local authority's area... at the
time the application is made is equal to or exceeds the number which the local
authority consider is appropriate for their area..."
This ground has to be read along with the local authority's duty contained in
paragraph 9(5A) (which was introduced by section 45B(6)(e(ii) of the 1982 Act). This
paragraph imposes a duty on each local authority to determine, from time to time, the
appropriate number of SEVs for their area and for each relevant locality and to publicise that
determination.
[149]
Accordingly, in order for the local authority to decide, in terms of paragraph 9(4)
whether the ground provided in paragraph 9(5)(c) applies, it requires only to compare two
numbers: first, the number of SEVs in its area; and, second, the number it has determined in
accordance with its duty in terms of paragraph 9(5A). 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 . Construed in this way, the
exercise which the local authority requires to carry out in considering the application of the
64
ground contained in paragraph 9(5)(c) is simply arithmetical. I do not consider that it can
properly be considered to represent an exercise of discretion by the local authority.
[150]
Given the relative clarity of the language used in these provisions and the
straightforward meaning derived from them, I do not consider that the other aspects of the
legislation relied upon by the respondent come close to producing a different result.
[151]
The respondent points to the location of the relevant ground ­ paragraph 9(5)(c) ­
and highlights the fact that it has not been placed by the drafter along with the other
"mandatory" grounds in paragraph 9(3). I do not consider that much can be taken from this
and it certainly cannot overcome the effect of the language used. Schedule 2 was originally
drafted and structured for a different purpose: namely the licensing of sex shops. It was
then adapted in order to be applied to SEVs and a number of significant changes made. In
particular, the duty for a local authority to pre-determine the appropriate number of SEVs
for its area was introduced in paragraph 9(5A). I consider that what might be perceived as
minor infelicities in the drafting of Schedule 2 as it applies to SEVs can be attributed to this
adaption process.
[152]
The respondent also points to the fact that the drafter made no exception to the
provisions regulating the timing and consideration of applications to address the situation in
which a nil determination has been made by the local authority in section 45D. Essentially,
it is suggested that had the drafter wished to make it clear that the paragraph 9(5A)
determination was to result in a ban, then this could have been made more explicit. Again,
this argument seems to me to try to attach undue weight to relatively inconsequential
drafting points. It did not seem to me that the respondent could point to any fundamental
problem in the way in which the process for applications was to work if a nil determination
had the effect of constituting a ban on SEVs. The issues which the respondent highlighted
65
arose from the prospective applicants applying for a licence notwithstanding the fact that, as
a result of a nil determination, such applications were doomed to be refused. The same
might be said for any application made which fell to be refused for the reasons set out in
paragraph 9(3). However, no equivalent cross-reference had been made in section 45D in
respect of those applications.
[153]
Second, I consider that the effect of the language used is entirely consistent with
what I understand to be the underlying rationale and purpose of the changes made as a
result of the introduction of the Air Weapons and Licensing (Scotland) Act 2015. The
rationale for the legislation is set out in the Explanatory Memorandum which accompanied
the Bill.
"10. The Bill also creates a new licensing scheme for sexual entertainment venues.
The Scottish Government considers it appropriate that sexual entertainment venues
should be licensed in order that the risk of adverse impacts on neighbours, general
disorder and criminality is reduced and both performers and customers can benefit
from a safe, regulated environment. Central to this proposal is the belief that local
communities should be able to exercise appropriate control and regulate sexual
entertainment venues that operate within their areas. Local licensing authorities are
best placed to reflect the views of the communities they serve and determine
whether sexual entertainment establishments should be authorised and under what
conditions. The Scottish Government believes that communities should be able to
limit the number of these licences in their area.
...
253. The proposals also allow for greater local control over the provision of sexual
entertainment venues in an area. There are provisions for a local licensing authority
to set an appropriate number of sexual entertainment venues for their area (and for
that number to be zero). It would be grounds to refuse an application if the number
of venues in an area or locality already meets the appropriate number." (Emphasis
added)
[154]
As I construe the legislation, it enables local authorities to exercise appropriate
control over SEVs in their respective areas. Each local authority is empowered, if it so
chooses, to determine, as a matter of policy, that there should be no SEVs in its area by
66
making a nil determination in terms of paragraph 9(5A) of Schedule 2. This is consistent
with the legislation's stated policy objective, the legislation increases the ability of local
authorities to regulate matters within their areas. As the facts of the Miss Behavin' case
demonstrate, were the legislative scheme only to have created a rebuttable presumption
against the grant of licences in the event of a nil determination (as the respondent would
have it), the exercise of the local authority's discretion in respect of any particular
application would still be open to challenge by prospective applicants.
[155]
Finally, my construction of Schedule 2 as it applies to SEVs is consistent with the
authorities dealing with other licensing regimes. In this regard, I consider that the key point
is that Schedule 2 as it applies to SEVs has two connected features which distinguish it from
the other licensing regimes which were considered in the cases which were the subject of
argument before me.
[156]
First, paragraph 9(4) of Schedule 2, as I have noted above, provides that an
application shall be refused in the event that the local authority considers that one or more
of the grounds contained in paragraph 9(5) applies.
[157]
Second, Schedule 2 as adapted for the licensing SEVs contains the duty imposed by
paragraph 9(5A) for local authorities to determine, for the purpose of paragraph 9(5)(c), the
appropriate number of SEVs for their area. This duty alters the nature of the ground to
which it applies ­ paragraph 9(5)(c). Instead of the application of paragraph 9(5)(c)
requiring the exercise of discretion by the local authority as to how many SEVs are
appropriate in its area, it becomes simply a question of arithmetic.
[158]
These two features distinguish Schedule 2 as it applies to SEVs from other Scottish
licensing regimes such as the regime under the Licensing (Scotland) Act 2005 applicable to
the sale of alcohol which was considered in Martin McColl (above). The same can also be
67
said for taxi licensing under section 13 and Schedule 1 of the 1982 Act which was considered
in Coyle (above). These features also have the result that Schedule 2 as it applies to SEVs is
materially different from the legislative scheme applicable to sex shops in Northern Ireland
being considered in Miss Behavin' (above).
Exercise of discretion as to remedy
[159]
Given my construction of the 1982 Act, 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 in terms of paragraph 9(5A) that
would not constitute a ban on SEVs.
[160]
Senior counsel for the respondent submitted that even if I found against her as to the
correct construction of the 1982 Act, I should nevertheless exercise my discretion not to
reduce the respondent's Decision.
[161]
I consider that the correct approach to the exercise of my discretion was helpfully set
out by Lord Boyd of Duncansby in the recent case of McHattie v South Ayrshire Council
(above). In considering the question of whether the Court ought to exercise its discretion not
to quash a decision taken on erroneous grounds he said the following:
"[51] I accept the submission of senior counsel for the petitioner as to the legal
principles that are involved. A court should be slow to refuse to quash an illegal
decision by a public authority. The onus is on the respondent to make out a good
reason why the decision should not be quashed. In so far as the decision maker
would require to retake the decision it seems to me that it would only be where it
was plain and obvious that the outcome would be the same that it would be right to
refuse to reduce a decision on that ground. The court should not attempt to take
over the decision making process or speculate as to what the outcome might be.
[52] The fundamental principle at stake is the rule of law. An illegal decision is an
affront to the rule of law. Of course there are times when the court has to take a
pragmatic decision in the interests of good governance and the wider interests of
society in ensuring certainty. That may be important where people have altered their
68
position in reliance of the decision that has been taken . Even there, however, the
question will be whether any alteration of position can be restored without undue
cost in money or emotional distress."
[162]
This is consistent with what is said by the Inner House in Douglas v Perth & Kinross
Council (above) relied upon by the respondent. Although approaching matters in a slightly
different way, it seems to me that Lord Boyd's analysis is also consistent with that Lord
Justice Sedley in Amid v Kirklees Metropolitan Borough Council (above) cited to me by the
additional party.
[163]
Approaching the question on this basis, I do not consider that the respondent has put
forward a good reason why the erroneous decision should not be quashed.
[164]
I have considered carefully the materials available to me in respect of the
respondent's Decision. As I have noted above, the Regulatory Committee were clearly
advised that making a nil determination would only create a "rebuttable presumption"
which could "ultimately" result in the closure of existing premises (paragraph 4.27). They
were advised further:
"In the event of a zero limit being set, this would not have an immediate impact,
since operators could continue until the new regime had commenced and
applications for licences were finally determined." (Emphasis added).
[165]
I have also considered both the transcript of the Committee meeting which took
place on 31 March 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. Or,
69
approaching the issue as Lord Justice Sedley did in Amid (above), 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.
[166]
In this context, I have also considered the respondent's argument that the present
challenge is premature. As I understood it, that argument was based, in part, upon the
respondent's construction of the legislation. For the reasons I have already set out, I
consider that the construction upon which that argument proceeds is in error. However, the
respondent also argued that the present challenge was premature because of the motion
passed by the respondent, sitting as the full Council, on 27 October 2022 (see paragraphs [18]
and [96] above).
[167]
I do not consider that this argument is either well founded or represents a good
reason not to quash the respondent's Decision. I recognise that, of course, that it is open to
the respondent to make a new determination under paragraph 9(5A) if it chooses to do so.
However, as I understand it, the motion passed on 27 October 2022 is not a re-consideration
of the nil determination. An amendment to the motion to that effect, instructing the
respondent's Regulatory Committee to re-consider the nil determination, was not passed.
Accordingly, at present, the respondent's Decision which is the subject of these proceedings
remains in place and, as I consider it to have been reached on the basis of erroneous legal
advice, I see no reason not to grant the remedy sought and to reduce it.
The other grounds of challenge advanced
[168]
My conclusion as to the principal argument between the parties together with my
decision on the issue of remedy, is sufficient to resolve the matters before me.
70
[169]
However, in deference to the lengthy arguments I have heard, I set out below my
views on the other grounds of challenge. I do so more briefly for two reasons. First, at the
first hearing, the parties were united in their desire for me to reach a decision as quickly as
possible and I have endeavoured to do so. Secondly, I do not consider that the remaining
grounds of challenge make a material difference to the result either because they are simply
consequential upon the principal argument or because they are not well founded.
The reasons challenges
[170]
The petitioners challenged the respondent's Decision on the basis of a failure by the
respondent to provide proper and adequate reasons for it. These challenges proceeded by
way of a number of different routes: an alleged failure to provide reasons as required at
common law; an alleged failure by the respondent to have regard to the guidance issued by
the Scottish Ministers and, in particular, the reference within that guidance to the EU
Services Directive; and together with various other routes founded in or deriving from EU
law (see paragraph [47] above.
[171]
The starting point for a consideration all of these challenges must be the extent to
which the respondent is obliged to provide reasons for its determination under
paragraph 9(5A) of Schedule 2, either in terms of the statutory scheme or at common law,
together with the nature and content of that duty. In this regard, it is notable that there is no
express duty imposed on the respondent to give reasons for such a determination. This is in
contrast to the duty to give reasons, on request, for a decision given in respect of an
application (see paragraph 23(2) of Schedule 2).
[172]
However, I consider that the duty on local authorities to make a determination in
terms of paragraph 9(5A) clearly forms part of the exercise of a local authority's functions in
71
relation to the licensing of SEVs. As such, I consider further that the local authority's policy
underlying its determination of the appropriate number of SEVs for their area should be set
out in the SEV policy statement. The preparation of this policy statement is mandated by
section 45C(1). The policy statement, properly prepared, will thus explain and provide the
reasons for the determination made. Such an approach to the content of the policy
statement is consistent with the fact that the local authority is required to have regard to its
SEV policy statement when exercising its functions by, for example, making a determination
in terms of paragraph 9(5A) (section 45C(7)).
[173]
As was pointed out by Mr O'Neill, this approach is also consistent with guidance
issued by the Scottish Ministers which provided at paragraph 43 the following:
"The statement might include information on the locations where the local authority
is likely to consider the operation of SEV to be appropriate or inappropriate. The
statement could also be used to indicate how many SEV are considered to be
appropriate for the local authority's area or particular localities within its area. The
reasons for these policy positions should also be provided." (Emphasis added).
Local authorities are obliged, in terms of section 45B(7) to have regard to this guidance in
carrying out functions conferred by this section. Those functions include the requirement to
make a determination in terms of paragraph 9(5A) of Schedule 2 which is introduced by
section 45B(6)(e)(ii).
[174]
I consider that this construction of the obligations of a local authority in respect of
the policy statement and the determination in terms of paragraph 9(5A) accords with the
importance of the latter in the licensing process. It is consonant with the reasons set out by
Lord Justice Elias in R (Oakley) v South Cambridgeshire District Council (above) at
paragraphs [26] to [33]. In these circumstances, I consider that the need to provide the
reasons for the policy positions underlying the determination arise, apart from anything
72
else, both as a matter of simple fairness and taking account the possibility of challenges to
the determination.
[175]
The question which follows from this conclusion is what is the nature and content of
the respondent's duty to give reasons? In this regard, I consider the analysis of Sheriff Ross
in Tesco Stores v City of Glasgow Licensing Board (above) at paragraphs [54] to [67] of the
position under section 23 of the Licensing (Scotland) Act 2005 to be helpful. At root, as with
any obligation to give reasons, the key for adequacy is, to paraphrase the well known test
from Wordie Property Co Ltd v Secretary of State of Scotland 1984 SLT 345 that the informed
reader should be in no real and substantial doubt as to what the reasons for the
determination were and what material considerations were taken into account in making it.
An assessment of the adequacy of reasoning is always going to be a matter of fact and
degree and should have regard to the statutory language used.
[176]
Applying this approach to the present case, I consider that it is important, as a
starting point, to bear in mind that the document which the local authority has to prepare is
a statement of its policy not a reasoned decision. It is notable that the wording of
Section 45C imposes no particular quality of reasoning or transparency on local authorities.
The only constraint is as to issues to be considered by the local authority in preparing the
policy statement (section 45C(3)). Overall, on the above analysis, I consider that the
reasoning for a local authority's determination of the appropriate number of SEVs would
not require to be elaborate or detailed.
[177]
However, 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
73
made in terms of paragraph 9(5A) of Schedule 2. 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 positon in
these proceedings. As a result, the policy statement proceeds on the basis that,
independently of a nil determination having been made by the respondent, it would still be
open to the respondent to consider and grant licences for SEVs. (The respondent's policy
statement as agreed to in fact contains a blank in respect of respondent's determination
marked "[To be updated after Committee decision]"). The policy statement goes on to set
out the application process including how applications are to be determined. As a result of
this inconsistency, the respondent's policy statement does not provide any explanation of or
reasons underlying the respondent's nil determination.
[178]
One also cannot find any explanation or reasons in any of the material which formed
part of the process which culminated in the Respondent's Decision on 31 March 2022: the
material put before the Committee; the transcript of the discussions; or, the minutes
recording the Decision. No part of this process provides any such explanation because the
respondent and its officials were in error as to the true legal effect of the determination that
had been made. They erroneously considered that by making the nil determination they
were not imposing a ban on SEVs.
[179]
Therefore, as a result of this same error, I consider that the respondent's decision falls
to be reduced on the basis that no adequate reasons have been provided for it .
[180]
In light of this conclusion, it is not necessary for me to consider further the other
routes which the petitioners advanced to challenge the adequacy of the reasons for the
respondent's Decision based on, among other things, the Provision of Services Regulations
2009, retained EU law and general principles of good administration.
74
Obligation of the respondent to inform itself of the relevant facts
[181]
I do not consider that this challenge to the respondent's Decision is well founded.
The argument advanced by Mr O'Neill was essentially a development of the challenge as to
the adequacy of the reasons provided by the respondent which I have already dealt with .
The petitioners' contention was that as the respondent had failed to appreciate that in
making the nil determination it was imposing a ban on SEVs, it had not properly informed
itself of the impact of that decision.
[182]
However, based on the material which was before the respondent's Committee, it is
apparent to me that the Committee had taken steps to inform itself of potential
consequences of closure on SEV operators and those who worked at such establishments.
These consequences were highlighted to Committee in responses received to the
consultation exercise undertaken by the respondent together with the deputations received
both in person and in writing. The Committee had before it responses from operators,
performers and organisations including the additional party.
[183]
Overall, I am not satisfied that no reasonable authority could have been satisfied on
the basis of the inquiries made by the respondent that it possessed the information necessary
for its decision.
Article 1 of the First Protocol
[184]
I am also not persuaded that the petitioners' arguments based on an alleged
unjustified interference with their rights under Article 1 of the First Protocol adds anything
to their position.
75
[185]
As a starting point, because of view I take of the legislative scheme, I do accept that
the first to third petitioners' rights to peaceful enjoyment of their possessions are engaged by
the respondent's nil determination. However, I also consider that the control of the use of
the petitioners' property represented by the respondent's Decision is compatible with those
rights.
[186]
I am heavily influenced in reaching this conclusion by the analysis contained in the
Miss Behavin' case. As I have noted above, that case involved a challenge to licensing of sex
shops in Belfast. Belfast Council had resolved to introduce a system of licensing of sex
shops. It had also determined that the appropriate number of sex shops in the relevant
locality was nil. A subsequent refusal of an application for a licence was challenged on a
number of grounds, including that the applicant's rights under Article 1 of the First Protocol
had been violated. The House of Lords firmly rejected this challenge.
[187]
In doing so, a number of the speeches emphasised that in the area of the sale of
pornography, insofar as A1P1 rights are engaged, this is at a very low level (see, for
example, Lord Hoffman at [16] and Lady Hale at [38]). This is, in part, as it was put in the
case, that there are far more important human rights in the world than the right to sell
pornographic literature. It is also because this is an area in which the Strasbourg court has
always accorded a wide measure of appreciation to member states which translates into the
broad power of judgment entrusted to local authorities (see also Lord Neuberger at [99] to
[102]). Lady Hale also emphasised that the Court is bound to acknowledge that a local
authority is much better placed than the court to decide upon the restriction of rights for the
prevention of disorder or crime, for the protection of health or morals, or for the protection
of the rights of others: (Baroness Hale at paragraph [37]).
[188]
Against that background, Lord Hoffman summarised the position as follows:
76
"If the local authority exercises that power rationally and in accordance with the
purposes of the statute, it would require very unusual facts for it to amount to a
disproportionate restriction on Convention rights." (at [16])
[189]
I see no good reason for present purposes in distinguishing between the right to use
one's property to sell pornography, which was considered in Miss Behavin', and the right to
use one's property as an SEV (see R (Bean Leisure Trading A Limited) v Leeds City Council
(above) at [54]). I am also, contrary to Mr O'Neill's submission, not persuaded that the
European Court of Justice's approach in the three cases he cited (at paragraph [60] above)
dealing with different rights required a different outcome.
[190]
In the present case, the petitioners make no challenge to the legislative scheme for
SEVs established by the Air Weapons and Licensing (Scotland) Act 2015. That scheme
expressly empowers local authorities to make a nil determination which will have the effect
of banning SEVs in a local authority's area (paragraph 9(6) of Schedule 2). The petitioners
also accept that the respondent's aims in adopting Schedule 2 of preventing public nuisance,
crime and disorder; securing public safety; protecting children and young people from
harm; and reducing violence against women are legitimate. The respondent's Committee
had before it competing representations as to appropriate number of SEVs and the potential
impact of and on SEVs.
[191]
In all the circumstances, had the respondent's Committee exercised its power to
make a nil determination on a proper legal basis and provided adequate reasons for that
determination, I do not consider that such a determination would constitute a violation of
the petitioner's rights under Article 1 of the First Protocol.
77
The Equally Safe document
[192]
I do not consider that the additional party's challenge based on the references made
by the Regulatory Committee to the definition of "violence against women and girls" in the
Scottish Government's Equally Safe document is well founded. The additional party does
not criticise the Equally Safe document directly nor the fact that the Committee had regard
to it. Rather, Mr Welsh argued that it was the way in which the document had been used by
the Committee which founded his challenge.
[193]
The difficulty for this argument, as was pointed out by the respondent, is that it
depends upon there being a "correct" interpretation of the definition of "violence against
women and girls". In other words, one that was objectively verifiable and which it could be
shown that the Committee had erred in not using. Neither the Equally Safe document,
taken as a whole, nor the definition of "violence against women and girls" are amenable to
such interpretation. These are matters about which there are competing views. Indeed the
tension or conflict between the definition contained in the Equally Safe document and the
licensing of SEVs was recognised in the Guidance issued by the Scottish Government (at
paragraph 21).
[194]
In these circumstances, I do not consider that the respondent's Committee can be
criticised on this basis.
Indirect discrimination
[195]
In respect of the additional party's challenge based on indirect discrimination
contrary to section 29(6) of the Equality Act 2010, the respondent, as I understand it, does
not dispute that the Decision represented a provision, criterion or practice for the purposes
of the definition of "indirect discrimination" in terms of section 19 of the Equality Act. The
78
respondent also accepted that the Decision would put women who work in SEVs at a
particular disadvantage in comparison with others who do not share their protected
characteristic of sex.
[196]
However, the respondent submits that the additional party's challenge on this basis
is premature because it is not possible, at this time, to determine whether the additional
party's members would be put at that disadvantage. The basis for the respondent's position
was said to be not only its position in respect to the effect of the nil determination but also
the motion passed by the respondent on 27 October 2022 (see paragraph [18] above). The
support measures referred to in that motion were yet to be put in place. In this regard, the
respondent sought to rely on the approach taken in R (The 3Million Ltd) v Secretary of State for
the Home Department (above).
[197]
I note also that, beyond a reference in Answer 58 to the respondent's position in
response to the petitioners' challenge based on Article 1 of the First Protocol, no argument
was made, either orally or in writing, to address the final limb of section 19(2)(d) namely,
proportionality.
[198]
Having considered the submissions, I must admit that I am sceptical as to the extent
to which the position of the UK Government in relation to the EU Settlement Scheme which
confronted the English court in the 3Million case is truly analogous to the position of the
respondent. However, in light of my decision of the principal ground of challenge advanced
by both the petitioners and the additional party, it is ultimately not necessary for me to reach
a decision on this part of the additional party's argument in order to resolve the parties'
dispute.
[199]
Accordingly, in all the circumstances, I consider it appropriate not to do so.
79
Public Sector Equality Duty
[200]
Having considered the material that was before the respondent's Committee in light
of the submissions made to me, I do not consider that a breach of the Public Sector Equality
Duty has been made out.
[201]
In assessing this ground of challenge, I consider that the respondent is correct that
the correct approach to this duty is set out by the English Court of Appeal in Sheakh (above)
at paragraph [10]. The passage in full is as follows:
"10 There is ample authority on the meaning and effect of section 149. Five points
are especially relevant here. First, section 149 does not require a substantive result
(see the judgment of Dyson LJ in Baker v Secretary of State for Communities and Local
Government [2008] EWCA Civ 141; [2009] PTSR 809 (at para 31)). Second, it does not
prescribe a particular procedure. It does not, for example, mandate the production of
an equality impact assessment at any particular moment in a process of decision -
making, or indeed at all (see R (Brown) v Secretary of State for Work and Pensions
[2008] EWHC 3158 (Admin); [2009] PTSR 1506, para 89). Third, like other public law duties,
it implies a duty of reasonable enquiry (see Secretary of State for Education and
Science v Tameside Metropolitan Borough Council [1977] AC 1014). Fourth, it requires a
decision-maker to understand the obvious equality impacts of a decision before
adopting a policy (see the judgment of Pill LJ, with which the other members of this
court agreed, in R (Bailey) v Brent London Borough Council [2011] EWCA Civ 1586;
[2012] Eq LR 168, paras 79, 81 and 82). And fifth, courts should not engage in an
unduly legalistic investigation of the way in which a local authority has assessed the
impact of a decision on the equality needs (see the judgment of Davis LJ in Bailey,
with which Richards LJ agreed, at para 102)."
[202]
As the passage from Sheakh makes clear, the Public Sector Equalities Duty mandates
neither a particular outcome nor a particular procedure. Rather it implies a duty of
reasonable enquiry into the issues and it requires the decision maker to understand the
obvious impacts of a decision. However, the weight that the decision makers attach to
particular considerations is a matter for them.
[203]
Applying those points to the present case, I consider that, adopting the approach of
Lord Justice Sales (as he then was) in the Jewish Rights Watch case (above) I am entitled to
draw inferences from the material which was before the respondent and the record of the
80
subsequent discussions. The material included, in particular, the respondent's Integrated
Impact Assessment. Among other things, this assessment highlights the positive and
negative impacts for women- both those who work in SEVs and those who do not. In the
case of the nil determination, I consider that weighing up the positive and negative impacts
on women will not have been a straightforward process.
[204]
Overall, I conclude that the respondent has had due regard to the matters identified
in section 149(1) of the 2010 Act and that a breach of the duty has not been made out.
Article 8 ECHR
[205]
Finally, I reject the additional party's challenge based on Article 8 of the Convention.
I do so on the basis that I do not consider that the additional party has standing in terms of
section 7 of the Human Rights Act 1988. This is because I do not consider that the additional
party is a "victim" itself in terms of Article 34 of the Convention and, furthermore, I do not
consider that, consist with the jurisprudence of the Strasbourg Court, the additional party is
entitled to act make a representative claim on behalf of its members.
[206]
I do not consider that the additional party falls to be treated as a victim in its own
right. I recognise that the Strasbourg Court has granted this status to certain bodies
particularly where the cases relate to an alleged infringement of Article 6 ECHR on the basis
that the bodies themselves were "directly affected". The case of Lizarraga and Others (above)
is an example of this. In that case, the association in question had been set up by its
members for the specific purpose of defending their interests and had been involved in the
litigation. Furthermore, notably for present purposes, the association's members were also
claimants before the Strasbourg Court. In that case, the issue of the standing of the
81
association arose in the context of an argument about non-exhaustion of domestic remedies.
The same points can be made in respect of the Beizaras and Levickas case (above).
[207]
Thereafter, the Court has consistently made clear that the Convention does not
envisage the making of an actio popularis by a body, which has not been directly affected, on
behalf of individuals who have been. In part, this derives from the nature of the Convention
rights at stake which, in accordance with the Court's consistent case law, can only be
exercised by an association's members and not by the association itself. The Court has
indicated that this applies to rights under Articles 2, 3, 5 and 8 (see Yusufeli lçesini
Güzelletirme Yaatma Kültür Varliklarini Koruma Dernei (above) at paragraph 41).
[208]
Having reached this conclusion, I do not ignore Mr Welsh's submissions concerning
the potential difficulties that might have arisen were the additional party's members to have
sought to have to become parties to the present proceedings in their own right both in
relation to questions of expense and anonymity. However, on the basis of the information
available to me and taking account of the powers of the Court both to make Protective
Expenses Orders (as was done in the case of the additional party itself) and in relation to
reporting restrictions (in terms of Rule of Court 102), I do not accept that my conclusion
would have the effect of depriving the additional party's members of the ability effectively
to vindicate their rights under the Convention.
Order
[209]
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 31 March 2022.
82
[210]
I will put the case out by order in order that I can be addressed on further procedure
in light of my decision and will reserve all questions of expenses meantime.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_10.html