Background

On 9 September 2021, the Scottish Parliament voted to introduce a Covid vaccine certification scheme (“the Scheme”), requiring the following premises and events:

  • “nightclubs”; 

  • sexual entertainment venues; 

  • unseated indoor live events with more than 500 in the audience; 

  • unseated outdoor events with more than 4000 in the audience; and

  • any event, of any nature, which has more than 10,000 people in attendance;

 

to introduce checks to ensure that only customers who are fully vaccinated are permitted to enter, or be on the premises, after midnight.

Since its announcement, the Scheme has prompted significant and vociferous concern from operators, as well as the leaders of opposition parties and other organisations representing groups with particular views on civil liberties. 

There has also been much commentary around the legal definition of a “nightclub” and we now have confirmation that the regulations underpinning the Scheme will impact all “late night venues” and events, and any attempt to define a “nightclub” has been abandoned.

The Scheme was subject to a legal challenge by way of Judicial Review brought by members of the Night Time Industry Association. That challenge was heard by Lord Burns on 30 September 2021 in the Court of Session, the day before the Scheme was to come into force, and refused. 

As a result, the Scheme came into effect as of 5am on Friday 1 October 2021. 

The grace period

Contrary to some suggestions in the media, the “Grace Period” referred to by the First Minister is not a delay to the implementation of the Scheme per se. The “grace period” is in fact a delay to the commencement of the enforcement provisions, which come into effect from 18 October 2021. 

Therefore, as of 5am on 1 October 2021 the Scheme is in effect and is law. Operators who are required to implement it must do so. However, until 18 October 2021, the Scheme should run without enforcement for non-compliance – in other words, no enforcement notices of non-compliance may be issued and no criminal charges may be brought for breaches of the regulations. Importantly, this does not mean the requirement should be ignored and does not mean that officers will not attend premises to see how they are implementing the Scheme and to offer guidance. The provisions allowing police and local authority officers entry to a premises to check if a scheme is in operation are live now, even if the enforcement/offences are not. The period from 1 to 18 October is seen as a “test” and “bedding down” period. 

The Regulations

The Regulations were released less than 24 hours ahead of them coming into force. What they do is to create a requirement for an operator of certain premises to ensure all persons in that premises are fully vaccinated (with some exceptions, see below). In particular the requirement is to have a “reasonable system” for:

(a) checking that persons on, or seeking to enter, the premises are permitted under the scheme; and

(b) removing, or refusing access to, anyone found by those checks not to be permitted on those premises under the scheme.

How do businesses check a person’s vaccination status?

The Scottish Government has developed an app for this purpose which is called “NHS Scotland Covid Check”. This is available for download on iPhone and Android phones.

The app accesses the phone’s camera to scan a 2D barcode from a customer’s vaccine certificate. Customers can download a vaccine certificate via a separate app called “NHS Scotland Covid Status”.

The “Covid Check” app then verifies the code shown on the customer’s “Covid Status” app and confirms it is valid, allowing the customer to remain on or enter the premises. According to media reports, there have been significant issues with the “Covid Status” app since it was launched on 30 September 2021. In addition to technology issues, individuals must have a passport or driver’s licence to obtain a certificate, so individuals who do not have these forms of ID cannot obtain a vaccine certificate and will not be able to enter or be on the premises impacted by the Regulations.

Premises impacted

Broadly speaking there are two types of premises where the Scheme must be adopted – “Late Night Premises”, and “Relevant Events”. It is worth noting that the Regulations do not include any definition of a “nightclub”, although the debate in Parliament focused on nightclubs as being the principal type of business affected. The reality is that The Scheme applies to all late night venues which meet the criteria whether nightclub, live music venue, pub, bar, hotel or community hall.

Late Night Premises

“Late Night Premises” means a premises operating between midnight and 5am, and where:

  • alcohol is served at any time between midnight and 5am;
  • there is a dancefloor or other designated space provided for dancing by customers; and
  • live or recorded music for dancing is played.

There are exemptions however, for some Late Night Premises where the premises are being used for a funeral, marriage ceremony, civil partnership registration, or a reception or gathering which relates to a marriage ceremony, civil partnership registration or funeral.

Relevant Event premises

“Relevant Event” has three categories:

  • Any event with a 10,000 capacity or greater
  • Any event with 500 capacity or greater which is wholly or mainly indoors (this number does not include staff or under 5s) where not all attendees are seated
  • Any event with 4000 capacity or greater which is wholly or mainly outdoors (this number does not include staff or under 5s) where not all attendees are seated

However, again there are a series of specifically exempted events for which the Scheme will not apply. These are:

  • a funeral, marriage ceremony, civil partnership registration, or a reception or gathering which relates to a funeral, marriage ceremony or civil partnership registration;
  • a mass participation event such as a marathon, triathlon, or charity walk;
  • an event designated by the Scottish Ministers as a flagship event according to criteria, and in a list, published by the Scottish Ministers;
  • a showing in a cinema;
  • a drive-in event;
  • an organised picket;
  • a public or street market;
  • an illuminated trail;
  • a work or business conference (not including any peripheral reception or function outside the core hours of the conference, whether or not alcohol is served)
  • a business or trade event which is not open to the public for leisure purposes;
  • communal religious worship; or
  • an un-ticketed event held at an outdoor public place with no fixed entry points.

Persons permitted

During the period the Regulations remain in force, their goal is to ensure that all persons within the relevant premises are double vaccinated. However, there is a bit more to it than that. The Scheme also permits persons who are not double vaccinated, such as staff, to be on a premises. Whilst this may appear counterintuitive, the list of persons permitted who may or may not be vaccinated is as follows:

  • Anyone under 18
  • Anyone who cannot be vaccinated for medical reasons
  • Someone participating in a trail of a vaccine
  • The person responsible for the premises
  • Someone who is providing a service or activity on behalf of the person responsible (employee, volunteer or otherwise)
  • An emergency responder
  • Someone acting on behalf of a public authority

There are a couple of interesting observations about this element of the regulations. First of all, there is no exemption for a person who chooses not to be vaccinated for religious reasons. The Equalities Impact Assessment confirms that this issue was considered and dispensed with: “if people choose not to be vaccinated because of a belief, then they may be negatively impacted by Certification if they are not able to gain entry to a regulated setting”.

Secondly, it appears that staff have an obligation to check evidence from a person who claims they are medically exempt. This is contrary to other Covid laws such as the law around face masks, where a person cannot be challenged. We discuss this issue further in the section on “Confidentiality” below.

Compliance plan

To prove that a premises has a system in effect to ensure that they are taking “all reasonable measures” to ensure compliance, the “person responsible” for the premises is required to prepare and maintain a “compliance plan”. The compliance plan is a document which details how the premises puts the system into effect, as well as detailing “any other measures that are, or will be, in place to prevent, or minimise, the risk of coronavirus being spread on the premises.” Read short, this appears to us to suggest that this needs to be a bespoke risk assessment document, somewhat similar to those which have been requested across the course of the pandemic, for example, in relation to the use of outdoor spaces and so on. The Scottish government has provided a template documentfor operators to review along with questions for operators to consider. 

It is of some concern to operators that the provision for maintaining this compliance plan is for a period of six months, which jars somewhat with the suggestion that the need for the Scheme will be reviewed every three weeks – which was a key element of the Scottish Government’s defence to the legal challenge brought by the night-time industry.

An operator’s compliance plan must be produced when asked for by a police officer, or by a person designated by the local authority under the relevant regulations, typically an environmental health officer (but may also include licensing standards officers).

What time should checks begin?

Although the requirement relates to midnight to 5am, the Regulations state that the checks are applicable to persons who are already on the premises at midnight. So it is not only persons entering at midnight or after that need to be checked. All customers in the premises at midnight will also need to be, or have already been, checked. It seems impractical to do a full sweep of a busy nightclub or bar premises at midnight, so the reality is that premises will have to consider doing their checks earlier in the evening, perhaps even from opening. The Scottish Government’s guidance gives some “case study” examples of this, suggesting that a premises which opens from 9pm to 5am might want to start checks from 9pm.

Confidentiality

The Regulations make clear that the Scheme includes a requirement to process any data that is necessary for it to operate. They also confirm that information provided in terms of the Regulations must be treated as confidential, including, for example, information as to why a person may be medically exempt. This jars somewhat with the widely held view that a person does not have to justify or evidence their medical exemption. Whilst that is the case in relation to wearing a mask, in these regulations there is specific reference to the need to consider relevant information to determine whether a person cannot be vaccinated for medical reasons. This element was not included in the night-time industry challenge of the Scheme in the Court of Session, as the Regulations were not available. So the question of whether the requirement to investigate a person’s medical history is a breach of their privacy is, as yet, a matter unanswered in the Courts. We understand that there are suggestions that the “COVID Status” app could create a “medical exemption” certificate, however it is unclear that this has been put into practice. 

In addition, there is a practical concern around staff performing the checks use their own personal phones and how that might impact data protection and privacy. 

At the time of publication of this update, the Data and Privacy impact assessment was not available.

Interplay with the Licensing (Scotland) Act 2005

There are several ways the Regulations will interplay with licensing laws.

Firstly, there will be significant geographical differences regarding the application of the Scheme. Most pubs in Glasgow are licensed until midnight, so will escape the requirement entirely – regardless of capacity or whether they have busy dancefloors or live music and so on. In contrast, pubs in Edinburgh are licensed to 1am and many pubs in Aberdeen are licensed to 3am and will therefore be caught if they do have music and dancing.

Secondly, there is what we might call the “substantial entertainment” issue. A licence requirement exists across many premises that alcohol can only be sold as ancillary to some form of activity, often referred to as a “substantial entertainment” condition. The Regulations say that where a premises seeks to avoid having to comply by, for example, closing off the dancefloor, they “do not commit a licensing offence”. This is one of most remarkable elements of the Regulations as the practical effect of this is that venues with later licences can essentially trade as pubs; thus (a) avoid having to comply with the Covid Certification Scheme altogether and (b) ignore their own licence conditions about entertainment by simply becoming a drinking establishment. Given that we do not know how long these regulations will be in force, this creates a significant shift in the late-night market, where some premises may simply decide to trade as drinking establishments (i.e. without a dancefloor or music) until 5am. 

Thirdly, the Regulations refer to “service” of alcohol, which is unhelpful as this is not a term which links to licensing law. There is a difference between sale of alcohol and service of alcohol. This disconnect creates potential gaps which might have been avoided if the Regulations had been properly scrutinised. In this case, the wording ignores late-night premises where a customer can pre-book and pre-pay for a booth where the alcohol provision is provided in advance and the customer self-serves. This specific customer experience is unlikely to have been purposefully considered as a way in which a premises might avoid activation of the Scheme, but a disconnect of this nature is unfortunate.

Lastly, it is worth acknowledging the transient nature of facilities on a certain premises, which is which is ubiquitous across parts of the hospitality industry. A hotel may have an awards night with dancing and a live band on a Friday night, and then host a dinner function with no live entertainment in the same space the following night. A pub may not have a designated dancefloor, but people may dance spontaneously in front of the bar to the Saturday night karaoke. The fluid and vibrant nature of hospitality premises, which do not easily fit into legislative definitions, suggests that there will be significant enforcement issues coming down the track. Some premises might avoid the scheme entirely, some premises might have it permanently in play, and some premises might be somewhere in the middle with the scheme applying on some occasions but not on others.

Relevant materials

It should be noted that the Data and Privacy Impact Assessment remains unavailable when we published this note.

We expect the Government to issue further materials in relation to the Scheme, such as FAQs, and will update this note accordingly.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.

Written by

Stephen,McGowan,TLT

Stephen McGowan

Date published

01 October 2021

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