A leading bacteriologist has said he was not surprised to learn that pub owners are pursuing a legal challenge against lockdown closures saying he had been left 'frustrated' by the absence of hard data informing some decisions.

Five of Scotland’s major hospitality groups have taken the first step in what could be a costly legal challenge where they will argue that pubs have been repeatedly targeted “with no sound evidence”.

The Scottish Beer & Pub Association, The Scottish Licensed Trade Association, UK Hospitality (Scotland), the Scottish Hospitality Group and the Night Time Industries Association Scotland said they had been advised by a legal expert that there is a case for a Judicial Review, which would examine how the Government arrived at the decision and what scientific evidence was used to back it up. 

Pubs and restaurants in the central are facing a further week of closures until new five-tier restrictions come into force. Other countries around the world have taken similar steps.

READ MORE: Glasgow restaurateur wins legal fight to stay open after 'cafe restaurant' row 

While the Scottish Government says it believes the temporary restrictions are 'necessary and proportionate' Professor Hugh Pennington, emeritus professor of bacteriology at Aberdeen University, said he was not surprised that the hospitality industry had taken action.

He said: “I can see where they are coming from. I can see why they want to see more data. 

“I think those of us who are not involved in the government machine would like to see that data.

"I’ve been quite frustrated by the low level of information about outbreaks and the evidence that is being used.

"What the hospitality industry want to see is the evidence that is driving the policy. 

“There is evidence from the international scene, we know there have been outbreaks in pubs and of course there was the Aberdeen outbreak, but what I haven’t seen and what the hospitality industry will be very keen to see is if there has been a detailed study of an outbreak.

"One can do quite sophisticated analysis quite quickly and I haven’t seen that data. And if there is evidence, then the hospitality industry can accept, well that’s why you are coming down so heavily on us"

READ MORE: Four more businesses told they can stay open after council court threat 

It comes after a Glasgow restaurateur became the first proprietor in Scotland to challenge enforcement action by the city council through the court. Giovanna Eusebi persuaded a sheriff that her business has been running as a cafe and not a restaurant since the national lockdown ended. Four other businesses have now been told they can stay open after Ms Eusebi secured an interim interdict prevening closure.

Nick McKerrell, an expert in licensing law at Glasgow Caledonian University, said a judicial review would be a “costly and complicated” process.

He said: “We are talking £100-£200k which is why pub owners can do it.

"This is a different issue (to Eusebi’s) as it’s not about definitions. 

“It is about the decision itself and how the Government has arrived at that decision.

“They (the group) will argue that the Scottish Government does not have the evidence to back it up. You are choosing to pick on pubs without the relevant evidence behind it.

“When they closed the pubs in Aberdeen I think there was strong evidence that it was the main route of transmission. With the blanket decision, I think the evidence has been less forthcoming.

“The Government as decision makers would say the evidence is that the virus transmits more in pubs than in other settings.

“What the court could say is, well, ultimately it’s a political decision to decide which areas to close. 

“What the courts won’t do is say, we will make the decision for you. But if it’s a good decision-making process you need the evidence to show why you have made it.”

READ MORE: Nicola Sturgeon warns legal challenges undermining public health 

The First Minister stressed in yesterday’s briefing that businesses and individuals have the right to challenge any decision through the legal process.

She said: “Every business, every individual, we operate even in a pandemic in the rule of law. 
“We’ve had to have emergency laws put in place to deal with the quite unique challenges of a global pandemic – but even then, we have to operate within a legal framework.

“That gives every individual and every business the right, if they choose to, to challenge that.

“I don’t blame people for trying to do that but it undermines what we’ve all got to do right now which is limit that human interaction that allows the virus to spread.”

In response to the latest legal challenge by the hospitality group, a Scottish Government spokeswoman said it would respond to a letter submitted “in due course”.

She added: “We are using the powers we have to help businesses, offering support which now exceeds £2.3 billion, including 100% rates relief for pubs and restaurants for the year and we will extend financial support available to businesses who must stay closed or continue to restrict their trading to cover the additional week of restrictions. 

“We are confident the temporary restrictions are essential and proportionate to the risk posed by coronavirus if we are to prevent a return to the dangerous level of infections experienced earlier this year.”