Lord Ericht passed a judicial review on the motion from KLR & RCR International Ltd & Others after hospitality businesses in the city warned of the further impact the measures could have.
At a remote hearing on Friday, Dean of Faculty Roddy Dunlop QC, on behalf of the petitioners, told the judge the Level 3 decision made for Edinburgh by Scottish Government ministers was “flawed” and did not reflect Public Health Scotland advice or case figures.
James Mure QC, representing ministers, said while the data was there to inform the decision-makers he added there is “no simple algorithm” to determine levels and the indicators used “may change over time”.
In his judgment, Lord Ericht said: “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.
“It has also brought particularly difficult challenges to the respondents, they have had to balance various interests in their Covid decision-making.
“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 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 were also entitled to take into account the slight increase and the risk associated with Christmas.
“The respondents were entitled to balance all these factors and conclude that the slight increase and the Christmas associated risk outweigh the statistics in the indicators – that’s a political decision with which the court will not interfere.
“The inconvenience to the petitioners is limited by time as the levels will be reviewed again next Tuesday.
“I refuse the petitioner’s motion for interim suspension.”
Mr Dunlop detailed the many similarities between Level 2 and 3 but highlighted that in the lower level, people can travel around Scotland freely – except for entering Level 3 or 4 areas – whereas those in Level 3 cannot leave the local authority.
The hospitality industry can also sell alcohol with a main meal in Level 2 and remain open until 8pm indoors, 10pm outdoors, whereas no alcohol is sold with the 6pm closing time in Level 3.
One of the largest parties among the petitioners, the Montpeliers group, owns seven premises in the city with Mr Dunlop suggesting the lower tiers of restrictions “can be the difference between life and death financially”.
He later added the group has a significant uptake of business in December and is losing £30,000 a week, with suggestions the Level 3 restrictions is only helping their establishments “break even”.