Edinburgh hospitality owners' level 3 challenge fails
Scottish ministers have not been shown to have acted irrationally in keeping level 3 COVID-19 restrictions in force in the city of Edinburgh, a Court of Session judge has ruled.
Lord Ericht in the Outer House refused interim suspension to six operators of hospitality businesses in Edinburgh, of the Government's decision of 8 December to continue for a further period the level 3 restrictions.
Under level 3, the petitioners are prohibited from selling alcohol for consumption on the premises and have to close between 6pm and 6am. Travel restrictions into and out of the area also apply. If Edinburgh were moved to level 2, they would be able to serve alcohol with a meal and to open until 8pm.
The petitioners averred that having regard to published data, including on levels of COVID-19 infection per 100,000 of population and availability of hospital beds, and the Government's own criteria for setting the levels of restriction for each area, the ministers' decision was so unreasonable that no reasonable executive could have reached it if acting reasonably. Some other areas with higher levels of infection had been placed in level 2. In failing to take proper account of the relevant data and in failing to consult with the local authority, they had failed to take account of all relevant considerations in making the decision, rendering it liable to reduction.
Ministers had also taken into account illegitimate criteria – the fact that new cases were higher than anywhere else in Scotland outside Glasgow (which was a simple result of population density), and concerns that people from outside Edinburgh might travel into the city (which assumed that people would travel in breach of the law). These had not been announced as criteria, and the petitioners also had a legitimate expectation that ministers would follow the criteria they had themselves set out.
In an opinion initially delivered extempore, Lord Ericht accepted that the pandemic had brought difficult challenges both for the petitioners and the Government, but observed: "These challenges are primarily political, and the court will only intervene if a decision is unlawful."
Agreeing with the approach taken by the English Court of Appeal in a similar case, he said the ministers had followed their guidance as to how they would go about their decision, "and there was no legitimate expectation that the decision would be made on the basis of the indicators alone: the indicators were to be balanced with other factors".
"The reasons for the respondents' decision", he observed, "can be found by taking together the statement of the First Minister to the Parliament and the Fifth Review Document and Evidence Paper. In her statement the First Minister acknowledged the low rates in the Evidence Paper, but also took into account a slight increase in levels, and the significant risk of an increase due to the imminence of Christmas.
"In my opinion the respondents were entitled to take into account these factors. 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 petitioners also had no factual basis for averring that the ministers had failed to consult with the local authority. The court could not form a view on whether they had followed the advice of public health officials, but in any event the ministers were entitled to form their own judgment.
On a human rights argument, the ministers had a wide margin of appreciation in balancing the various rights engaged, particularly as financial support for businesses would have to be taken into account.
For all these reasons the petitioners had failed to establish a prima facie case.
Lord Ericht also concluded that the balance of convenience was against the petitioners. "There is no doubt that their businesses are suffering, and one must have every sympathy for that. On the other hand, the suspension of the decision about an entire local authority area will affect not only the petitioners but also the other residents and businesses in the area. The inconvenience to the petitioners is limited in time as the levels will be reviewed again next Tuesday."