Press enter to search, esc to close
The Scottish Government has released its latest Strategic Framework and physical distancing review this week (22 June 2021). In this briefing note, the TLT Scottish licensing team analyses both documents, through the prism of those businesses which have been most affected in the leisure and hospitality sectors. These sectors hoped that the announcements would bring a clear and definitive end to all physical distancing and other lockdown related restrictions, and we will examine whether this hope has been satisfied. Although the two documents really need to be read together in order to put the jigsaw pieces in place, we will take each in turn.
Perhaps the most positive update so far and containing a real shift in focus, the new Strategic Framework document sets out how the economy and society will recover from the pandemic. It gives us a glimpse of the future and how Scotland will look without levels, a progression towards what we recognise as “normality” with examples given of family gatherings, being able to attend large scale events and of course, nightclubs reopening. The Framework is split into parts, and contains analyses of the current position using the defined “Four Harms” being:-
It notes that the balance across these four harms has shifted, particularly in relation to two areas of broader harm, being education and economic impact. Therefore the proportionate basis which must underline the legal restrictions upon us also shifts and we must move forward.
As we know, any relaxation to the restrictions on daily life will be contingent “on the data” and clinical advice given to the First Minster. The ongoing vaccination programme holds the key to unlocking, and the race between that and the virus in terms of spread and mutation clearly underpins everything.
In short compass, the Scottish Government has changed its strategic objective in light of the success of the vaccination program. The previous approach was:
“to suppress the virus to the lowest possible level and keep it there, while we strive to return to a more normal life for as many people as possible”
This has now been softened to the following:
“to suppress the virus to a level consistent with alleviating its harms while we recover and rebuild for a better future”
In layman’s terms, the Scottish Government has moved from aiming for “zero-Covid”, to accepting living with and mitigating the harms of Covid.
Therefore, the key consideration for future decisions will not be the test positivity rate, but instead regard will be had to rebuilding the economy and communities while managing the suppression of COVID-19. This means that as of 9 August we should see the lifting of the majority of the restrictions on businesses and daily life. Readers should note our comments below in relation to the relaxation of physical distancing measures but this should also by read in line with the wider emphasis change to personal responsibility in relation to limiting virus transmission.
The tests are as follows:
Please note that changes to the restrictions will depend on the exact amending regulations and updated guidance.
Please note that changes to the restrictions will depend on the exact amending regulations and updated guidance.
The Framework sets out that (subject to the gateway condition being met of all adults over 40 protected with two doses of the vaccine), physical distancing requirements will be removed both indoors and outdoors (as discussed in detail below). Other requirements will also be removed, however, the Framework sets out that certain requirements will remain, for example, the use of face coverings in certain settings will continue (such as public transport and retail), good ventilation, continuing engagement with Test & Protect together with isolation procedures.
However, while the message is that businesses will be able to operate without restrictions, we do note that the Framework talks about businesses operating “closer to full capacity” which suggests some degree of government control will remain. It remains to be seen whether this is done by regulation or guidance.
Licensed operators in city and town centres should note that the Framework sets out that the government will support a phased return to office, so there will be no “Big Bang” return to the office on 9 August. It may be some time until we see town and city centres returning to their full capacity.
Readers will be familiar with the significant opprobrium directed at draft physical distancing (previously referred to as “social distancing”) guidance published at the back end of April 2021, which led to real confusion in the licensed trade and appeared to go further than the distancing rules from summer 2020. When the final version of the rules were published a few weeks later, to coincide with much of the country going into Level 3, that confusion remained to a large extent. These concerns were explored in our earlier briefing note here: Scottish hospitality re-opens under new and challenging regulations - TLT LLP (tltsolicitors.com) (26 April 2021). In response to concerns raised by the trade and their representatives, Nicola Sturgeon heralded a review of the ongoing need for physical distancing on 11 May.
The outcome of the review was originally anticipated in early June. However, the emergence of the Delta Variant put this back till this weeks announcements. The physical distancing review is a detailed document of some 40 odd pages (found here), which sets out the Government’s reasoning both historically and for its new approach to the rules on physical distancing. As we say above, it needs to be read along with the Scottish Government’s Strategic Framework.
The subtle but very important change away from a “zero Covid” policy is one many businesses within the worst affected sectors of the economy have been calling for, including many of our clients in the leisure, tourism and hospitality industries. As a direct result of this, significant changes to physical distancing have been proposed at two milestone dates – 19 July 2021, and 9 August 2021. The second of these is already being referred to as the Scottish “Freedom Day”.
On this day, the whole of Scotland is projected to move to Level 0 (see details above). All physical distancing rules for outdoors will be removed. However, what is of import to organisers of festivals and events is that organised gatherings will still be subject to caps on capacities (maximum capacities outdoors seated: 2,000 & outdoors free-standing: 1,000).
Indoor rules will drop to 1m (it should be noted that hospitality has been allowed to operate at 1m due to additional mitigations they have in place i.e. test and protect and so on but theatres, cinemas and the like will see this as very welcome). Of particular note to hospitality/ leisure operators is there will no longer be the expectation of physical distancing between different households within a group. 1m distancing will only be needed between different groups. This goes a long way to address the abovementioned opprobrium, but again is only a step towards the real end of all physical distancing.
On 9 August 2021 the whole of Scotland is projected to move “beyond Level 0” meaning ALL physical distancing rules will come to an end. Whilst this will be wholeheartedly welcomed by the leisure, tourism and hospitality clients, further clarity is urgently needed from the Scottish Government about any other restrictions that will remain. The Framework document confirms that some “baseline measures” will remain “to help people, businesses and organisations to manage transmission risks”. Clients are already contacting us with queries around collection of customer data, table service and the wearing of masks post 9 August, as well as what the Government might mean with regard to the point we raise above on control of capacities.
Leisure, tourism and hospitality industries want comfort that a return to business as usual, i.e. full capacity trading from 9 August is permanent. Whilst 100% certainty is not possible, the rationale for the implementation and proposed removal is set out in the Government’s Report.
As we know the physical distancing rules were brought in to fight against the virus, and to this extent distancing diminishes the chances of spread – but the rules have caused wider harms which are recognised in the “four harms” approach noted above. The “collateral damage” of this unnatural state of living, separated from those we love, family, friends and colleagues, has led to numerous commentators and organisations raising issues about the deeper impacts on mental health as well as the longer-term negative health effects of the damage to the economy and people’s livelihoods.
A key excerpt from the Report is:
“there is consistent evidence of negative societal impacts over the course of the pandemic. This includes a large reduction in social connectivity, and higher levels of loneliness and anxiety, particularly for younger people. There is also evidence of reduced social and community cohesion, which may be associated with distancing measures.”
Given we are focusing this briefing note on leisure and licensed businesses, the following additional comment is of note:
“The 2m physical distancing requirements have meant that some businesses and services are unable to operate in a viable way. The resulting closures have reduced opportunities for participation in culture, leisure and tourism. This has had an impact on individual and community wellbeing.”
This, of course, is a recognition not simply of the economic impact of lockdown on business, but on the wider interruption to normal socialisation and social life, which is a key aspect of human society. It is a recognition that we need nourishment beyond food and water; that the mind, heart and soul are equal constituents of the human experience.
In addition to a recognition, and analysis, of these wider harms, the Scottish Government also recognises the implications of a successful vaccine roll-out, and also indicates that in framing this review it has had regard to “stakeholder engagement” such as with the performing arts and hospitality. A key section here is as follows:
“For businesses, we recognise that any degree of distancing between staff and customers significantly affects operations and commercial viability. For example, although some people may enjoy attending events in an uncrowded setting, the majority of theatres, comedy clubs, and live music venues may not be viable until the current physical distancing restrictions are removed entirely. We have been told that economic viability is linked to filling venues near to full or full capacity. Business representatives have also expressed concern that more lenient distancing rules in England may have a displacement effect on their business.”
Later, the Government also refers to the importance of having the removal of physical distancing measures being a one-way step:
“We also anticipate that the easing of current measures across the country as a whole will mean that we can be as confident as possible that distancing measures will not need to be re-imposed. This is important not just from the perspective of protecting public health – we recognise that changes to physical distancing can be difficult and costly to reverse, as they can require changes to the physical layout of settings.”
This should offer some comfort, namely, that the Government do acknowledge this should be a permanent move. However, some uncertainties remain.
With physical distancing gone the key question for our clients will be whether any restrictions on the hospitality sector may be left behind in this re-opening of society. The concomitance of these documents appear to suggest that it is correct that the Scottish Government intends that all physical distancing will be removed on the target date of 9 August 2021. At that time, venues will hope to be able to trade to full capacity and there should therefore be no need for mandatory table service or bans on standing at the bar - and we will be able to dance with another once again.
However, a number of minor references give us cause for concern. In addition to point mentioned above about capacities, the physical distancing review also says:
“We will continue to engage with stakeholders across sectors as restrictions are eased to assist with forward-planning, taking into account the particular risks and needs of each setting.”
“For as long as the epidemic is with us the need for us to consider physical distancing will remain. And it remains possible that a resurgence in the virus may require us to reintroduce certain protective measures”
These two comments, taken together with the other reference to “baseline measures” highlighted earlier, does suggest a somewhat more nuanced approach and that some types of premises/ activity may be seen as more high risk than others. The Government should therefore urgently make matters extremely clear in their communications to affected sectors and indeed the wider public. We hope that those businesses, who were the first to close, and likely the last to open, will finally be able to open without restriction. In order to allow them to plan, prepare and have hope that they can once again trade viably, crystal clear clarity is needed.
25 June 2021