Judge refuses bid to suspend Level 3 restrictions for Edinburgh

The Level 3 coronavirus restrictions placed on the city of Edinburgh have not been suspended by a judge, who decided the Scottish Government had a right to consider factors other than data.

Lord Ericht passed a judicial review on the motion from KLR & RCR International Ltd & Others after hospitality businesses in the city warned of the further impact the measures could have.

At a remote hearing on Friday, Dean of Faculty Roddy Dunlop QC, on behalf of the petitioners, told the judge the Level 3 decision made for Edinburgh by Scottish Government ministers was “flawed” and did not reflect Public Health Scotland advice or case figures.

James Mure QC, representing ministers, said while the data was there to inform the decision-makers he added there is “no simple algorithm” to determine levels and the indicators used “may change over time”.

The inconvenience to the petitioners is limited by time as the levels will be reviewed again next Tuesday

In his judgment, Lord Ericht said: “The current coronavirus crisis has brought difficult challenges.

“It has brought particularly difficult challenges to the hospitality industry.

“I have been provided with information and affidavits about the devastating effect on the businesses of the petitioners and the consequences for their survival if they have to operate on Level 3 rather than Level 2 restrictions over the festive period.

“It has also brought particularly difficult challenges to the respondents, they have had to balance various interests in their Covid decision-making.

“These challenges are primarily political and the court will only interfere if a decision is unlawful.

“Regulations like this can be voted down by Parliament if the Parliament so wishes.

“The guidance as to how the Government will go about its decision-making has always emphasised that the indicators are no more than indicators – they are not the sole criteria for making a decision on Covid levels.

“The respondents were also entitled to take into account the slight increase and the risk associated with Christmas.

“The respondents were entitled to balance all these factors and conclude that the slight increase and the Christmas associated risk outweigh the statistics in the indicators – that’s a political decision with which the court will not interfere.

“The inconvenience to the petitioners is limited by time as the levels will be reviewed again next Tuesday.

“I refuse the petitioner’s motion for interim suspension.”

Mr Dunlop detailed the many similarities between Level 2 and 3 but highlighted that in the lower level, people can travel around Scotland freely – except for entering Level 3 or 4 areas – whereas those in Level 3 cannot leave the local authority.

The hospitality industry can also sell alcohol with a main meal in Level 2 and remain open until 8pm indoors, 10pm outdoors, whereas no alcohol is sold with the 6pm closing time in Level 3.

One of the largest parties among the petitioners, the Montpeliers group, owns seven premises in the city with Mr Dunlop suggesting the lower tiers of restrictions “can be the difference between life and death financially”.

He later added the group has a significant uptake of business in December and is losing £30,000 a week, with suggestions the Level 3 restrictions is only helping their establishments “break even”.

Lord Ericht, however, commented that economic packages had been introduced by ministers to stem the economic effect felt by the impact of the virus.

Mr Dunlop also pointed out a “problem of consistency” when no mention was made of Edinburgh in the move from Level 4 to Level 3 earlier this month – despite concerns being raised about cases in Aberdeen City and Aberdeenshire which were among the other local authorities also moving down a tier.

He referenced a letter signed by a cross-party group of MSPs representing the city who said the “decision has deviated from the application of that framework and it is now unclear under what circumstances the city would be stepped down to Level 2”.

Mr Mure explained during his submission the procedure of how the tier allocations are made with the Covid committee before being brought to the Scottish Parliament – with time given to learn the effects of the virus and how the prevalence of cases is responding to the measures.

Lord Ericht was shown a modelling document which the QC said highlighted changes being scrutinised by Parliament and restrictions reviewed so they are not in place for longer than they need to be.

It adds that as well as the data that helps determine tiers, wider considerations may apply, including the application of general principles such as public health “which may suggest caution in some circumstances”.

Mr Mure also raised “real concerns” from medical advisers, such as the chief medical officer, about restrictions being eased over the Christmas period – with an emphasis on people returning to retail and hospitality – which could have an impact on the NHS.