The weekend's news that onerous restrictions will be reimposed on business throughout mainland Scotland immediately after Christmas, and in other parts of the UK at the same time if not sooner, may have left some businesses looking to review whether they have any legal grounds for opposing these changes. However, recent caselaw indicates that any legal action would face significant and possibly prohibitive difficulty.
On Friday 11 December, the Court of Session heard a judicial review case brought by owners of hospitality businesses and a short-term let business in Edinburgh (the case of KLR & RCR International Ltd (t/a One 20 Wine Café) & Ors v Scottish Ministers). The petitioners sought interim suspension and reduction of the decision taken earlier that week by the Scottish Government to keep Level 3 restrictions in place for the City of Edinburgh Council local authority area, rather than moving Edinburgh down to Level 2.
Given the urgency of the issue and the application for interim relief, Lord Ericht issued a same-day opinion on whether the continued application of Level 3 restrictions should be suspended.
The questions before the court were:
1. Did the petitioners have a prima facie case that the Scottish Ministers' decision to keep Edinburgh in Level 3 restrictions was irrational and disproportionate?
2. If so, did the balance of convenience favour interim suspension?
The petitioners' arguments
The petitioners produced evidence on the 'five agreed indicators' the Scottish Government was using to measure the prevalence of coronavirus and the risk it poses within an area. These included metrics such as the number of cases per 100,000 people, the rate of test positivity and forecasts of the number of cases relative to hospital capacity.
The petitioners set out data on each of the five indicators, and argued that Edinburgh's figures justified a move to Level 2 under the Scottish Government's framework for decision making. They further argued that there was no data to support the decision to keep Edinburgh in Level 3, and so the decision was irrational.
The petitioners also argued that it was essential for the Scottish Ministers to give full and rational reasons for the decision to keep Edinburgh in Level 3. They referred to the First Minister's statement to the Scottish Parliament on 8 December setting out the decision and the supporting documentation that confirmed the results of the review of local authority restriction levels and set out the evidence taken into account, which had indicated that factors such as the threat of transmission posed by the upcoming Christmas period had been taken into account. The petitioners argued that the reasons given did not reflect the criteria set out in the Scottish Ministers' framework for decision-making, and that the transmission rate figures in Edinburgh meant that maintaining Level 3 restrictions was disproportionate and irrational.
The court's approach
Having considered all of that information, Lord Ericht held that the decision by the Scottish Government was not irrational or disproportionate and therefore the petitioners did not have a prima facie case. He found that the five indicators were not the only criteria the Scottish Ministers could take into account, that they were entitled to take factors such as a slight increase in COVID-19 and the risk of further increases due to Christmas into account, and that where they had done so, they had set out those reasons properly.
The margin of appreciation in decision-making
The case is a useful indication of the courts' approach to assessing the discretion governments have when taking decisions in response to the COVID-19 crisis, and in particular the extent to which they are bound by particular data.
Lord Ericht highlighted passages from the Scottish Government's published information about how it would take decisions, which set out that while the Scottish Government would take data such as the five indicators into account, it would apply a level of judgement and take decisions as it sees fit in the circumstances. He also highlighted references to 'a level of judgement' being applied by the Scottish Government, which indicated that it has a margin of appreciation in taking decisions such as allocating restriction levels.
Political accountability and the judicial approach to COVID-19 challenges
Lord Ericht considered the use of judicial review as a means of challenging a decision to impose restrictions, and whether the court can and should interfere with decisions it considers are matters of political judgement. He noted that the challenges faced by the Scottish Government in navigating the crisis are primarily political, and the court will only intervene if a decision is unlawful.
Lord Ericht endorsed and adopted the approach taken by the Court of Appeal earlier in December, in an application for judicial review of the lockdown regulations in England (R (Dolan) v Secretary of State for Health and Social Care). There the Court of Appeal considered it "impossible" to accept the proposition that the court could intervene on grounds of irrationality in an area where decisions were being made by the Government requiring "difficult judgements" about medical and scientific issues having taken advice from relevant experts. The question of whether a lockdown policy should be implemented was "quintessentially a matter of political judgement for the Government, which is accountable to Parliament, and is not suited to determination by the courts".
Dolan's references to political accountability and the requirement for regulations to be approved by Parliament under the 'affirmative' procedure were also considered relevant in KLR, on the basis that the regulations giving effect to the Scottish Government's decision would be subject to affirmative procedure and so could be voted down by the Scottish Parliament (though the regulations would have effect pending that vote).
In light of the judgments and reasoning in KLR and Dolan, it will be very difficult for any further challenges to restrictions to succeed, whether they are local or national in scope. The only successful challenges are likely to be where a national or local government acts in a way that is not authorised under legislation (what public lawyers would call a 'pure' ultra vires challenge), such as in the successful challenges to Glasgow City Council's ability to impose prohibition notices on certain Glasgow businesses under the then-applicable regulations that contained exceptions for "cafés". Any challenge that goes beyond that and invites a court to overturn a policy decision is very unlikely to succeed.