Former MSP Adam Tomkins who is the John Millar Professor of Public Law at the University of Glasgow School of Law, said although he had voted for lockdown when he was a serving politician, he believed that ongoing restrictions were unlawful, due to low numbers of cases in Scotland which required hospitalisation or treatment in the intensive care ward.
Writing in The Times, he said: “Emergency powers are for emergencies. While the Covid-19 pandemic is not yet behind us, there is mercifully no longer a public health emergency in Scotland.”
He added: "It is increasingly hard to argue that this is fair, just, proportionate or lawful. Let me be clear – I supported lockdown when it was necessary. As an MSP in the last Parliament, I voted for it.
"But it was made clear to ministers at the start of this process that extraordinary powers to control our lives can be tolerated in a liberal society only where they are necessary. That is a high bar, and rightly so.”
Mr Tomkins, who served as a Tory MSP for Glasgow from 2016 before stepping down at the Holyrood election last month, said that under the law, the measure must be the “least restrictive available means”.
Glasgow is currently the only Scottish local authority in level two Covid restrictions, which means restaurants and bars cannot serve alcohol inside and people cannot visit each other inside their homes.
He said: “This is the test the Scottish ministers fell foul of when the Court of Session ruled in March that the blanket ban on opening places of worship was disproportionate and unlawful.”
Mr Tomkins added: “This is a question of judgment, not of science. It calls for an honest assessment of risk and consequences.
"If there is a real risk that the NHS could be overrun because Covid is causing serious illness, then even the most severe restrictions could be deemed necessary. But this is not where we are.
“We should tolerate only those restrictions on our lives and livelihoods that are necessary. Where there are less restrictive means available to protect the NHS, they should be adopted. Disproportionate restrictions are not only unfair, they are unlawful.”
QC Roddy Dunlop also expressed his dismay over the decision to keep Glasgow in level three.
Referencing public health chief Jason Leitch’s comments on Sunday night’s episode of BBC Scotland’s The Nine, when he said that “what we’re doing now” was to allow the European Football Championships to go ahead at Hampden, Mr Doyle suggested the plan had been badly thought out.
A crowd of 6,000 people a day will be allowed in to watch the games in a special “fan zone”.
Mr Dunlop posted on Twitter: “What we are doing now (holding 630k people in level 3 with ruinous financial consequences) ‘is to allow that’ (3k people to gather in a fan zone and watch a 90min football game that’s on telly anyway) ‘to happen’. I’m sure this will be a great relief to the hospitality industry.”
A Scottish Government spokesperson said: “We’ve been clear since the beginning of the pandemic that we will continue to follow the most up-to-date scientific advice.
“We have always said we will keep plans under review and accelerate the lifting of restrictions if possible.
“We understand the difficult situation faced by businesses which have to operate under continuing restrictions, and are doing all we can to mitigate against the impact of these, including for example by providing Glasgow City Council with additional funding to provide hospitality and leisure businesses with support ranging from £250 to £750 a week.
“We continue to closely monitor the situation in all local authorities and will adapt our response accordingly, if need be, to ensure that any rapid rise is addressed rapidly and decisively, giving as much notice of the changes as practical and possible.”