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On Wednesday 7 October 2020 the First Minister announced significant and wide ranging restrictions on the hospitality industry in an effort to slow the spread of COVID-19. These restrictions, amounting to a hospitality lockdown for large swathes of Scotland and an almost complete alcohol ban for on sales premises, take effect from 6pm this Friday 9 October 2020 and will last until at least Sunday 25 October 2020 (inclusive).
You can read the First Minister’s speech here and view The Health Protection (Coronavirus) (Restrictions and Requirements) (Additional Temporary Measures) (Scotland) Regulations 2020 (“the Regulations”) here.
The impact of these new restrictions were significant and devastating news for many hospitality businesses. In this briefing, we will try to unpick the key elements such as the issues around licensed cafes and hotel premises as well the ability to provide takeaway and home delivery facilities.
The Regulations which give legal effect to the new lockdown were fast-tracked through the Scottish Parliament in a matter of hours, having been first published around 12.15pm, and commenced as of 6pm on Friday 9 October 2020. The lockdown does not affect retail or off-sale premises and is focused on “hospitality” premises such as restaurants, cafes, bars, public houses, and hotels (referred to as “hospitality premises” in the Regulations) as well as snooker halls, bingo premises and so on.
The impact of the new hospitality lockdown depends on where the premises are situated in Scotland.
The Scottish Government has constantly updating its own Guidance in the days around the lockdown commencing – three variations were published in just over 24 hours, so please continue to visit our website to keep abreast of changes.
The Central belt, broadly speaking, is the area from the west coast to east coast capturing the cities of Glasgow and Edinburgh and everywhere in between. The local authority areas affected are noted below. The First Minister provided an explanation that, owing to the significantly higher levels of infection in the central belt area, stricter restrictions are being applied. These are:
The First Minister was adamant that it “is a definition based on what a cafe already does. It doesn’t allow a restaurant to now turn itself into a cafe.”
The Government Guidance states:
Q. How do I know if I can define my business as a café?
A. You should consider the following key questions: a) do you serve alcohol only without food to customers?; b) does your normal hours of operation extend to 20:00?; c) do you have a range of menus (an evening menu)? If any of these apply then you are not a café within the definition set out in the regulations.
If you are unclear on whether your premises is allowed to open please contact us to discuss the matter.
Unlike the central belt, licensed premises can open, albeit subject to additional trading restrictions outlined below. A key message is that serving alcohol will be prohibited during this period inside hospitality premises so although premises in, for example, Aberdeen or Inverness, may be open up to 6pm, alcohol cannot be provided at all indoors. Alcohol may continue to be served outdoors in licensed areas until 10pm in accordance with licensing and covid legislation.
Local rules apply here – if your licence or street café permit has a condition for an external area restricting trade till 8pm (for example), then you must still observe that. As above, there will be exceptions to this prohibition on serving alcohol indoors for “significant life events” such as wedding receptions and funeral purveys.
A key element of the hospitality lockdown for premises outside the central belt is a uniform further restriction of trading hours allowed:
This hospitality lockdown will undoubtedly have a significant adverse impact on the majority of hospitality premises. Even for premises outside the central belt, there will be questions over whether it is at all viable to attempt to trade without the ability to sell alcohol and until only 6pm. The First Minister confirmed that there will be financial assistance available to hospitality businesses, with a fund of £40million seemingly set aside for this purpose and it has been confirmed by the Scottish Wholesale Association that wholesale businesses, part of the supply chain so sorely affected by this, will be able to make a claim. Find out more about the funding.
The UK Government has also just revealed plans for a targeted furlough scheme for the hospitality industry but this will not start until the beginning of November 2020.
Many clients have asked us about the policy rationale and evidence base behind the hospitality lockdown. The Scottish Government released an “Evidence Paper” just prior to the First Minister’s announcement in Parliament.
A key element of the paper is to seek to justify the targeting of the hospitality sector. In answering questions, the First Minister pointed to the detail that approx. 1/5 of people who contracted Covid-19 told the Test and Protect system that they had been in some form of a hospitality premises. However, that group of people will also have been in other settings and contexts during the relevant period – shops, public places, family homes, workplaces, at the school gates and so on.
In addition, there appears to be no way of knowing what proportion of the 1/5 visited a licensed premises as the definition of hospitality premises includes unlicensed cafes. The popularity of high street coffee shops will inevitably contribute to the numbers recorded yet the restrictions announced today are more onerous on licensed premises.
What this means is that the Scottish Government cannot point to a causal link between hospitality and the transmission of the disease. Both the First Minister in her announcement, and the Deputy First Minister in subsequent press briefings, have confirmed this. The First Minister therefore sought to fortify the policy position by indicating that “good common sense” suggested that licensed premises were subject to prevailing features which would make transmission easier such as the fact they are spaces where people meet, which might have poor ventilation and she highlighted the impact of alcohol on decision making. The Evidence Paper says this:
“The risks in hospitality are exacerbated by some behaviours. As people will generally visit with family or friends they will naturally be less concerned about distancing and this behaviour will also be influenced by the disinhibiting impact of alcohol.”
It is our view, however, that this position appears not to have taken into account the mitigating factors that hospitality have put in place both voluntarily and as required through law and guidance, and have gone to extreme lengths to put into place. Some reference to international evidence such as studies from the US appears to us to be capable of criticism as the measures in place in Scottish and UK venues were not in place at equivalent US premises when those studies were undertaken.
There is a general assumption in the Scottish Government Evidence Paper that social distancing is impaired as a result of alcohol consumption and therefore hospitality premises are risky. This assumption is not, it seems to us, balanced against numerous other factors which are at play now:
The licensing solicitors here at TLT will keep you updated with developments once the full regulations are published, but until that time we have produced a list of FAQs in order to try to deal with some of the initial queries and concerns which are arising.
End note: local authorities within the central belt
City of Glasgow, Clackmannanshire, East Ayrshire, East Dunbartonshire, East Renfrewshire, East Lothian, Edinburgh City, Falkirk, Inverclyde, Midlothian, North Ayrshire, North Lanarkshire, Renfrewshire, South Ayrshire, South Lanarkshire, Stirling, West Dunbartonshire and West Lothian.
A: Yes - however, the premises must close at 6pm. Takeaways and home deliveries can take place after that provided they comply with the terms of your licence.
A: No. Consumption of alcohol in licensed or unlicensed premises is prohibited.
A: This legislation overrides the terms of your premises licence and you must close at 1800 hours. Remember if you are in the central belt and hold a premises licence, you need to close altogether. Although takeaways and home deliveries are permitted.
A: Unfortunately you will need to either: (i) contact the customer and ask to rearrange the booking for prior to 1800 hours if outwith the central belt; or (ii) move the booking to after 25 October if within the central belt (although note the 25th October could conceivably be extended). This is a matter outwith your control.
A: Yes - the First Minister has indicated that the Scottish Government is making £40m available to help businesses affected by this lockdown. The details are pending.
A: Weddings and funerals receptions may still take place with the sale and consumption of alcohol both within and outwith the central belt. The reception can last until 10pm and numbers will also need to be capped at 20 attendees.
A: No. The new restrictions are clear that any licensed premises will have to close in the Central Belt area.
A: In our view it may be open to approach the licensing board to “surrender” occasional licences during the affected period.
A: If your licence is for off-sales such as a retail gift shop, then you are unaffected. If the licence is for a hospitality facility like a restaurant, then that facility would need to adhere to the new restrictions, but the wider attraction can remain open. If the facility is a café then it can remain open (provided it fits within the definition of a café).
A: Whilst the exact details of the “residents rule” is awaited in the regulations, it is our view that this applies only to people who reside on the actual licensed premises. In other words, a bar or restaurant on a caravan park in the central belt will have to close like any other bar or restaurant, and outside the central belt can only open to 6pm and must not sell alcohol. If the park also has a separate coffee shop facility, as some do, and this is not covered by the licence, then it can open.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
12 October 2020