The first step in a legal challenge of the decision to continue Tier 3 restrictions in Edinburgh has failed in the Court of Session.

The review of Scotland’s COVID-19 tiers was announced on 8 December and in our last blog post we discussed whether these might be judicially reviewed, following the example set in England by Stratford-on-Avon District Council.  Indeed, a judicial review was launched by a consortium of local businesses operating cafes, restaurants, hotels and short term lets in the Edinburgh area (referred to as ‘the petitioners’).

Under Tier 3 restrictions, the sale of alcohol by bars, cafes and restaurants is prohibited and businesses must close between 6 pm and 6 am. There are also restrictions on travel into a Tier 3 area.

The petitioners claimed that the decision to maintain the Tier 3 restrictions in Edinburgh was not supported by the data and was so unreasonable that no reasonable executive could have reached the same conclusion.  The petitioners produced affidavits on the devastating impact which the Tier 3 restrictions will have on their respective businesses over the festive period.

Lord Ericht considered the case during a virtual hearing on Friday 11 December. The continuation of the restrictions was due to take effect from 6 pm that day and the petitioners sought urgent suspension of the decision.

The petitioners referred to detailed statistics on the coronavirus situation in Edinburgh, including the drop in cases per 100,000, the reduction in test positivity, and the availability of hospital and ICU beds. The petitioners claimed that they had a legitimate expectation that these are the criteria which would determine the appropriate level of restriction.

Lord Ericht refused to suspend the Tier 3 decision, preferring the Scottish Ministers’ evidence that those criteria are only ‘indicators’ which help inform decision making. They are not the sole criteria for decision making and may be balanced with other factors. This is supported by the Scottish Government’s COVID-19 Strategic Framework, which states that:

“These decisions require judgement to be applied to all the facts and considerations relevant at the time they are made, and in relation to the area directly affected and for Scotland as a whole”.

In the present case, those other relevant considerations were set out by the First Minister as being (a) the slight rise in case numbers in Edinburgh and (b) the significant risk of increased transmission if Edinburgh were to be opened up further in the run up to Christmas. Lord Ericht found that the Scottish Government was entitled to conclude that this outweighed the statistics in the indicators, and made clear that this was a “political decision with which the court will not interfere”.

While the judicial review case can continue, the court’s refusal of this urgent motion for suspension emphasises the uphill struggle which petitioners face in persuading a court that COVID-19-related decisions are unreasonable. Given the ongoing public health emergency, it seems that courts across the UK remain highly reluctant to strike down a decision which is aimed at reducing the risk of transmission.

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