Individual pubs, bars and restaurants in Scotland could be closed by councils to tackle Covid-19

The latest edition of eleventh hour regulation sees sweeping new emergency closure powers handed to local authorities.

As is becoming an all too common occurrence, regulations were put before the Scottish Parliament on Thursday 27 August which were come into force the next day without any public consultation.

From Friday 28 August The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 will give a local authority powers to close or impose conditions on specified premises, events and public outdoor places within its area. 

A direction to close for example, can be made if it is deemed necessary for both:

1. the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection by coronavirus in the local authority’s area; and

2. in the local authority’s opinion it is necessary or proportionate.

It is a criminal offence to contravene a direction issued by a local authority, attracting a fixed penalty of £60, or a hefty fine.

What does this mean for the hospitality trade?

It appears these new powers arise following the experience of lockdown in Aberdeen, and the Government’s Policy Memorandum states that “local action to control or close the premises or businesses at the centre of an outbreak will in most cases be the most efficient and proportionate response and could avoid Scottish Ministers having to implement more wide-ranging and restrictive measures.”

A local authority can give a direction to:

• close the premises,
• restrict entry to the premises, or
• secure restrictions in relation to the location of persons in the premises.

That direction may limit

• the number of persons in the premises,
• the purpose for which a person is in the premises,
• the facilities in the premises.

If a particular pub for example is believed to present a risk of spread of the virus, a direction can be made. Before making a direction under the regulations, a local authority must have regard to any guidance issued by the Scottish Ministers including the Statutory Guidance for the tourism and hospitality sector.

The date and time when the prohibition requirement or restriction ceases to have effect must be no later than 21 days after it comes into effect and it must be reviewed weekly. The regulations provide for an appeal to the Sheriff Court.

In the case of an event, such as a gig, a direction can also require the organiser to take action to inform persons who may have been planning to attend the event.

Once a direction is given, a local authority designated officer or a constable can enforce it, if necessary by serving prohibition notices. A constable may also issue a fixed penalty notice for non-compliance.

The regulations expire on 31 January 2021 and must be reviewed at least once every 42 days, with the first review by 9 October 2020. We expect the Scottish Government to issue guidance in due course.

Conclusion

It is clear that directions are a potent tool for local authorities to combat the spread of coronavirus, but they will be a worry for the Trade. It is, of course, crucial that local authorities issue directions only where reasonable and proportionate and these directions will only be used as a last resort. It is hoped that local authorities will continue to work in partnership with the Trade to keep people safe and keep businesses open.

Any operator issued with a direction should treat this as a matter of the utmost seriousness and seek specialist legal advice urgently.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.