Edinburgh hospitality businesses fail in challenge to continuation of Level 3 Covid-19 restrictions

One 20 Wine Café, Caledonia Inns Ltd, and Gordon Steele QC, as well as four other petitioners, sought suspension et separatim reduction of the decision of 8 December 2020. They argued that the decision was unreasonable based on the factors that the respondents were required to consider. 

The petition was considered by Lord Ericht. 

Deliberately cautious approach 

Under the Level 3 restrictions, the first to sixth petitioners were prohibited from selling alcohol for consumption on any part of their premises and were required to close between 6pm and 6am. The reasons for the decision challenged in the petition were contained in a statement made to the Scottish Parliament by First Minister Nicola Sturgeon on 8 December and in a document outlining the 5th review of the allocation of levels to local authorities since the introduction of the tier system in Scotland. 

In her statement, the First Minister noted that Edinburgh was recording 68 cases of Covid-19 per 100,000 people, which was below the Scotland-wide average. However, she added that a move to Level 2 would mean opening up “significantly more services in our second biggest city in the two weeks before Christmas”, which would carry a risk of increased transmission. 

The Review Document stated that a “deliberately cautious” approach was taken due to the decision to relax restrictions from 23 to 27 December to allow people to gather for the festive period. Public health advisors to the Scottish Ministers had publicly stated that Edinburgh ought to be placed in Level 2 at the next review. 

It was submitted for the petitioners that the respondent had assigned the city a level of restrictions for which there was no support in the data. Having regard to the published data, no reasonable executive could have reached the decision to maintain Level 3 restrictions if acting reasonably. They averred that other council areas with worse results had been placed in lower levels, and they had a legitimate expectation that the criteria set out by the respondent would be followed when determining restrictions. 

In response, the respondents submitted that there was no irrationality, and what the petitioner referred to as criteria were merely indicators they had to take into account when making their judgement. Further, a wide margin of appreciation had to be given to decision makers and there was no legitimate expectation that the decision would be made solely based on the indicators. 

Inconvenience limited 

In his opinion, Lord Ericht noted that the challenges were “primarily political” and began: “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.” 

Addressing the reasons given for the respondents’ decision, he said: “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 will take them into account when forming their view.” 

He continued: “In my opinion the Respondents have 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.” 

Evaluating the statement given by the First Minister, he said: “The reasons given by the First Minister in her ministerial statement were adequate and rational. The court is not entitled to interfere with them. These reasons were not ex post facto justifications in response to political pressure. They were made as part of a First Ministerial Statement to the Parliament. It was appropriate that Decision and the reasons for it were made orally to the Parliament as part of such a statement.” 

Lord Ericht concluded: “There is no doubt that [the petitioners’] 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.” 

For these reasons, the petitioners’ motion for interim suspension was refused.