Lawyer tells Court of Session: Keeping Edinburgh under level 3 Covid-19 restrictions is 'catastrophic' for city businesses

A lawyer has spoken of how keeping Edinburgh within level three coronavirus restrictions is placing city businesses in a “catastrophic” position with them facing “possible financial ruin.”

Roddy Dunlop QC told the Court of Session on Friday how the Scottish Government’s decision is “unlawful” and “irrational”.

He told judge Lord Ericht that the rate of Covid-19 transmission figures is so low in Edinburgh that it should be placed in level two.

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Mr Dunlop, the Dean of the Faculty of Advocates, said that according to the Scottish Government’s own guidelines, the city should move down a level.

The Court of Session in Edinburgh.
The Court of Session in Edinburgh.

He said that the Holyrood administration had ignored advice from its own public health officials recommending that the city be moved to level two.

Mr Dunlop said the rate of Covid-19 transmission in Edinburgh was lower than other places in Scotland which are moving to a lower tier.

And he said that many Edinburgh based businesses are facing the prospect of going bust.

Mr Dunlop told Lord Ericht that he should order the suspension of the Scottish Government’s decision to keep Edinburgh in level three.

Mr Dunlop said: “The present position is that the decision made on December 8 is flawed and cannot stand.

“The decision to have Edinburgh remain in level three is having a disastrous impact on the businesses who operate there.

“In the present situation we say the decision made is unlawful, unreasonable and irrational.

“We ask for the suspension of it and for the ministers to reconsider it again.”

Mr Dunlop was speaking at a judicial review which has been brought to Scotland’s highest civil court by a group of businesses from Edinburgh.

The first petitioners in the case are a firm known as KLR & RCR International Ltd. The firm owns the One20 Wine Cafe in the city’s Dundas Street.

Another petitioner includes Montpeliers Ltd, which owns pubs, restaurants and hotels.

KLR director Ronnie Reid previously won a judicial review at the Court of Session against Edinburgh City Council chiefs who tried to close his business earlier this year.

Mr Reid and his fellow group of businesses have gone to court over a decision made earlier this week by the Scottish Government.

First Minister Nicola Sturgeon announced that Edinburgh would remain at level three due to concerns over Christmas shopping.

Mr Dunlop told the court that the Scottish Government had acted unlawfully in making that decision.

He said that the Scottish Government also didn’t publish the advice it had received from public health officials saying that the city could be moved down a level.

He added: “Keeping Edinburgh in level three 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 per cent.

“A statement from the directors of Montpelliers say that 25 per cent of their business comes in December.

“By staying in level three 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.

“On this side of the bar the petitioners face possible financial ruin.”

Concern about future at Christmas

The Scottish Government’s lawyer, James Mure QC, told Lord Ericht that the government had acted lawfully in making its decision to keep Edinburgh in level three.

He said that there had been an increase in transmission of the virus in recent days and that this trend could continue in the run up to Christmas.

Mr Mure also told the court that for many Scottish people, Edinburgh was a popular destination for day trips. He said the Scottish Government was concerned that people could socialise and thus increase the numbers of people who contract the virus.

He added “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.”

Mr Mure said that Mr Dunlop’s claim that the Scottish Government should act on the low rates of infection in Edinburgh to move it into level two was wrong.

He added: “It takes the indicators as the being in effect the only applicable criteria which must be followed week by week.

“That’s entirely wrong. The indicators themselves inform the decision making but the judgment has to be applied to all of the facts under consideration relevant to the time that they are made.”

Proceedings are continuing.