A senior lawyer accused the Scottish Government of acting unlawfully and irrationally in introducing Covid vaccine passports for night time entertainment venues as he asked a court to block the move.
The Night Time Industries Association in Scotland, which represents bars and nightclubs, is seeking an interim order to stop the measures coming into effect at 5am on Friday.
First Minister Nicola Sturgeon has indicated that a grace period will allow venues to prepare for the introduction of the scheme requiring proof of double vaccination.
Lord Keen of Elie QC told the Court of Session in Edinburgh: “If indeed they are not going to take steps to enforce these regulations between October 1 and October 18, what is the difficulty of deferring introduction for the same period so that parties have a rational and reasonable opportunity to consider the draught regulations and risk assessment?”
He told judge Lord Burns: “There is a very stateable and real case that the Scottish ministers have not acted proportionally with regard to these regulations.”
He said the situation was confused by the ministers’ insistence to bring forward the regulations “not at the 11th hours, but beyond that in the most strange fashion”.
Lord Keen indicated ministers say a committee will have the opportunity to consider the evidence on Thursday, but added: “I am advised that this was not on the agenda for the committee tomorrow and that has been put into the domain by the deputy chairman of that committee.”
He told the court: “But even if it is put on the agenda the person going to be giving evidence is the Deputy First Minister (John Swinney). So is he going to turn up and say ‘I think these regulations are a bad idea’. Of course not.”
Lord Keen continued: “And these regulations are subject to the affirmative procedure. They will become law without Parliament having any intervention. They won’t remain law unless they are affirmed at a later date.
“But why if there is potential for them not be affirmed by Parliament do we need them to come into force at 5am on Friday morning? My learned friend says ‘well the criminal offence will be deferred until October 18’.
“But in order to meet the liability of that criminal offence the petitioners are immediately going to have to take steps to implement a scheme which may be rendered redundant when Parliament decides it doesn’t want to affirm these regulations.”
He said ministers made the decision on September 9 without producing an evidence bundle and had still failed to produce an impact assessment even on the cusp of the regulations coming into effect.
James Mure QC, for the ministers, argued that the vaccine passports would help to reduce Covid transmission and alleviate pressure on the NHS.
He said that they could help ensure venues could remain open should the numbers of cases start increasing again over the winter months.
And he said venues were obliged under the scheme to put in place a “reasonable system” to check vaccine passports and said this materially different from requiring them to ensure everyone within the venue was vaccinated.
He added: “Operators have nothing to fear from this.”
Mr Mure argued that the courts should be very slow to weigh when the legislature was still considering the merits of the policy.
Lord Burns will give a decision in the action tomorrow.