A petition for a judicial review to overturn the Scottish Government’s decision to keep Edinburgh in Tier 3 was denied by judge Lord Ericht at the Court of Session last night. He said, “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 petition was raised by seven Edinburgh businesses including Ronnie Reid, the first petitioner in the case, who owns the One20 Wine Cafe, and who previously successfully petitioned against City Council chiefs who tried to close his business earlier this year, and Montpeliers Ltd, whose stable includes Tigerlily and Montpeliers.
Roddy Dunlop QC, the Dean of the Faculty of Advocates, representing the petitioners, told the Court of Session on Friday how the Scottish Government’s refusal to move Edinburgh into Level 2 was “unlawful” and “irrational” and placing companies at risk of “financial ruin.”
Saying that according to the Scottish Government’s own guidelines, the city should move down a level and that the Holyrood administration had ignored advice from its own public health officials recommending that the city be moved to level two.
However, lawyers for the Scottish Government argued that the Holyrood administration acted lawfully with Advocate James Mure QC saying that while the data was there to inform the decision-makers there was ‘no simple algorithm” to determine levels.
Mr Dunlop gave the judge some background to the financial implications. He said, “Keeping Edinburgh in level 3 creates a catastrophic situation for businesses in Edinburgh. “The petitioner is the owner of the One20 wine cafe and he has seen his profits slump by 80%
“A statement from the directors of Montpeliers say that 25% of their business comes in December. By staying in level 3 they are losing £30,000 per week. By moving into level two, they could break even – that’s all they are asking – is the ability to break even.”
Mr Dunlop said that the rate of Covid 19 transmission in Edinburgh was lower than other places in Scotland which are moving to a lower tier.
Mr Mure said, “As we have seen the scientific advisors are particularly concerned about the future at Christmas.
“So the decision is taken yes with having regard to the complex scientific advice and evidence and data along with all the other considerations including the magnet effect of all the facilities in Edinburgh in the run-up to Christmas.
“In my submission, my lord the petitioners cannot begin to satisfy the court that the decision taken was beyond the range of decisions reasonably open to the respondents.” Lord Ericht agreed.
Saying he was unable to decide if the Scottish Government did not follow the advice of its public health officials. But he said the government were not obliged to follow the advice of public health professionals.
He wrote: “In these circumstances, I am not in a position today to come to a conclusive view as a matter of fact on whether the Respondents acted in defiance of their advice.
“If this Petition proceeds to a full substantive hearing then no doubt witnesses can be examined on this point.
“However for today’s purposes, it takes me no further forward. The Respondents were not obliged to act in accordance with the advice of their public health advisers, but were entitled to come to their own judgement.”
“In my opinion, they do not have a primae facia case. I refuse the petitioner’s motion for interim suspension.” He dismissed the case.