Today the Scottish Government published guidance on social distancing for businesses which included confirmation of businesses which are allowed to remain open during the period of so-called “lockdown”.
The last few weeks have been an exceptionally complicated period to navigate and advise licensed businesses and hospitality premises. Things have changed every day, sometimes dramatically. On top of the general anxiety we are all feeling in these times, we have also had to consider the complexities arising from emergency Government legislation, as well as having the trade and those who advise the trade react to law and guidance with considerable velocity, raising ongoing issues, gremlins and significant gaps with civil servants and legislators.
The full guidance is located here.
The guidance contains a list of which premises have been told to close immediately. The list contains a number of notable exceptions. I am going to focus on leisure, hospitality and licensed businesses and explain who can still trade and under what circumstances.
The guidance confirms that restaurants can continue to operate for delivery and takeaway purposes only. This includes personal uplift from the premises such as by collecting an order you have made over the phone or through “click and collect” or similar.
Cafes can continue to operate for delivery and takeaway purposes only. This includes personal uplift from the premises such as by collecting an order you have made over the phone or through “click and collect” or similar. There are wider exceptions for cafes serving vulnerable persons or key workers.
The guidance unhelpfully separates “public houses” from “bars”, which I will come on to momentarily, but in essence pubs and bars can continue to operate for delivery and takeaway purposes only. This includes personal uplift from the premises such as by collecting an order you have made over the phone or through “click and collect” or similar. Note firstly, that planning laws have already been relaxed as regards pubs and bars so there is no planning implication for a pub or bar staying open to deal with delivery and takeaway custom. A licensing question arose concerning whether home delivery needs to be explicitly stated on a premises licence operating plan under the Licensing (Scotland) Act 2005. The answer is, under these critical times – no (in “normal” times – possibly!).
Some licensing boards have issued guidance notes confirming they have no issues over the absence of special home delivery wording (Glasgow and Aberdeen, for example), but I also understand that Scottish Government and Police Scotland are taking a relaxed view on this, so our advice to clients is firmly that they can offer takeaway and home delivery services even if the licence is silent on that bespoke activity. For the avoidance of doubt, a pub which has off sales in its premises licence can also do alcohol to takeaway or via home delivery (see below on off licences).
Coming back to the “definition” issue, there is no distinction in law between a public house and a bar. The fact that the guidance separates these is unhelpful, but understandable given these notes have had to be created with haste and might not reflect the nuance of licensing laws. In short, if you are a bar which has the capability of serving meals, then my view is that the exception applies to you and you can do takeway and home delivery. Whether you call yourself a pub or a bar is irrelevant in my view.
The definition in the guidance may appear rather ambiguous, however, all should approach the definitions with common sense. Firstly, it is clear that bars in hotel premises should be closed in the same way that a “normal” bar or pub is. I take the view that a hotel with a public bar can benefit from the home delivery/takeaway exception noted above. The guidance goes on to specify that “Hotels, hostels, BnBs, campsites and boarding houses for commercial use” should be closed, but with notable exceptions. These are:
Members clubs should be closed in the same way a pub or bar is. If a members club has a kitchen facility and makes meals, I take the view that they can benefit from the exception that home deliveries and takeaways are acceptable, although the guidance does not make that clear. Members clubs are a fairly wide breed and would include premises such as Bowling clubs and other sporting clubs, masonic and orange lodges, miner’s welfare premises, and so on.
There are no exceptions listed in relation to nightclubs.
These should also be closed, with one notable exception as follows:
Market operators can continue to trade only where they offer essential retail like groceries and food.
These type of public performance premises should all be closed. There are two exceptions provided for, which are:
Casinos, Bingo halls and betting shops are listed as premises which should be closed with no exceptions. Adult Gaming Centres and Family Entertainment Centres are also caught under the wider ambit of “Arcades”. There are no exceptions here.
All retail premises should be closed but a number of notable exceptions are provided for and, in bold are the ones which are typically subject to a licence:
This means that dedicated off sale premises such as wine shops or craft beer bottle shops, as well as shops on brewery premises, are allowed to remain open. I am aware that there has been some confusion surrounding dedicated off sales and small brewers offering online or click and collect services. The Scottish guidance confirms such premises can continue to trade. This mirrors the equivalent guidance in England & Wales.
This guidance is “in force” as of today (25 March 2020) and the First Minister Nicola Sturgeon has made it abundantly clear that this is a direction, not a request. The law on which this guidance is based has not technically been commenced in Scotland but that is likely to happen tomorrow or in the next day or two. That is not an invitation to flout the guidance. The law will provide for fines for businesses breaching these rules. For licensed businesses like pubs and so on, you can bet that a licensing board will take an extremely dim view of someone caught trading in contradiction to these rules. A tiny number of premises were served with emergency closure orders under s.97 of the Licensing (Scotland) Act 2005 in the last week. I imagine Police Scotland will also seek a full review of these premises licences and would not be surprised to see the licences be revoked. A word of caution though, remember that some premises might be open and operating under the “notable exception” scheme as laid out above.
There is no official end date for these restrictions. We all hope to get through this crisis quickly and safely, and be back to business as usual when it is safe to do so.
It should be taken as read that everything I have said above is a matter for individual businesses to consider and implement, but in doing so, should absolutely be doing so on a risk assessed basis being mindful of their own staff as well as the public. Appropriate social distancing measures should be in place.
On a personal note, as licensing solicitors, we have faced the tip of spear alongside our clients, watching longstanding businesses whom we have worked with over many years shut up shop and it has been heart breaking to see people forced to make awful, invidious decisions. We hope we have done our best to help guide and offer advice such as we can thus far, and want to underline that we will continue to be here throughout this crisis for all of our clients. The licensing team are all working from home, but remain on phones/emails and video calls dealing with applications, police, licensing boards and so on to do our best. I and my colleagues in the licensing team at TLT LLP wish all of our clients, and indeed the wider trades and society at large, the best of luck getting through this.
If you have any questions please contact the licensing team and we will do our best to help, we are here to support you in any way that we can.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions