Following the announcement from the First Minister on the wide ranging restrictions on the hospitality industry, TLT Solicitors licensing  team in Scotland have written an article summarising the impact and answering some crucial questions those affected may have. You can read their insight below.

Today (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 Sunday 25 October 2020 (inclusive).

You can read the First Minister’s speech here.

The impact of these new restrictions are significant and will be devastating for many hospitality businesses. In this briefing, we will try to unpick the key elements but there is a major caveat: the actual law is as yet unpublished, and in our view there are many unanswered questions such as the detailed position on hotel premises and technical points around takeaways and home deliveries.

The relevant amendments to The Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 (“the Regulations”) will now have to be fast-tracked through the Scottish Parliament in a matter of hours, in order to start prior to 6pm on Friday. What is clear is that the lockdown does not affect retail or off-sale premises and is instead 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.

Central belt

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 exact area is that falling with the jurisdiction of the following health boards: Greater Glasgow and Clyde, Lanarkshire, Ayrshire and Arran, Lothian, Forth Valley and West Dunbartonshire. If you are unclear on the geographical jurisdictions, and whether your premises is affected, please contact us for advice.

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:

All licensed premises must close to the public during this lockdown. From the First Minister’s comments, they appear to have moved away from trying to categorise premises in this regard by offering definitions of what a pub might be in comparison to a restaurant, so we anticipate the regulations may instead have regard to the presence of a premises licence offering on-sales under the Licensing (Scotland) Act 2005.

Premises may, it is understood, continue to offer takeaways and home deliveries and off-sales in line with existing permissions. This provision appears not too dissimilar to the position from March to mid-July when certain restaurants and bars were closed, but offered takeaway facilities or “click and collect” for customers at the front door.

It appears that there will be exceptions to this for “significant life events” such as wedding receptions booked prior to today and funeral purveys. The exact detail of this will require to be confirmed in the regulations. This is of no real comfort to some clients we have already spoken to who have wedding receptions booked on Friday and Saturday.

For the avoidance of doubt, it has also been made clear that snooker / pool halls, indoor bowling alleys, casinos, and bingo halls must close.

Unlicensed cafes may remain open and hotels may remain open for residents only, although again the exact ways in which hotels might be able to cater for residents is not at all clear and we will await publication of the regulations.

Outwith the central belt

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 booked prior to today and funeral purveys, the exact details of which are awaited in the regulations.

A key element of the hospitality lockdown for premises outside the central belt is a uniform further restriction of trading hours allowed:

All indoor hospitality must close between 1800 hours and 0600 hours (hotels serving meals to residents will be exempt).

Hospitality premises may therefore open between 0600 hours and 1800 hours provided that no alcohol is served indoors.

The rule of six people from two households still applies.

Financial assistance for affected premises

This hospitality lockdown will undoubtedly cripple 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. There is no detail yet as to how businesses can claim any of this, or when it might be paid. The First Minister committed to discussing this with the sector in due course and we understand initial discussions with some trade bodies have already taken place.

Evidence base

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.

The general assumption that social distancing is going to be impaired as a result of alcohol consumption is not, it seems, balanced against numerous other factors:

• Covid-secure risk assessments and protocols
• reduced capacities
• requirement for table service
• wearing of masks
• sanitation stations and regular deep-cleans;
• the reduced times currently in force over which people might enjoy themselves by having a drink or two,
• the general ability of experienced people in hospitality to manage their own customers sensibly.

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.

Q. Can I sell alcohol until 6pm on Friday 9 October in my restaurant/pub/bar?

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.

Q. I run a restaurant outside of the Central belt. Can I allow my customers to do BYOB up until 6pm?

A. It is highly unlikely that this will be permitted, however, a clear answer has not been specified as yet. We believe this will be caught in the Regulations.

Q. My premises licence says I can trade until 12 midnight. Why can’t I open till then?

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 home deliveries are thought to be permissible).

Q. I have bookings for tables after 1800 hours during the lockdown period. What can I do?

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.

Q. Is there any Government support for my business?

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.

Q. I have a wedding booked into my first floor function suite this Saturday. Do I need to call the bride-to-be to cancel?

A. It appears that provision is to be made to allow “life-events” to occur, which we understand to include the likes of weddings and funerals. What is not clear is what hours a premises might trade in order to host such an event although our best guess is that the exemption will allow the function to occur till 10pm in line with the existing restrictions.  Numbers will also need to be capped at 20 attendees.

Q. I run a licensed bistro in Glasgow. Can I trade till 6pm if I don’t allow alcohol?

A. No. The new restrictions are clear that any licensed premises will have to close in the Central Belt area.

Q. I run a small café in Edinburgh. We have been trading from occasional licences whilst waiting on our full licence to get to a hearing What should we do?

A. It might be possible for you to trade as an unlicensed café by surrendering occasional licences during the affected period. Please contact us for specialist advice before taking any action.

Q. We run a visitor attraction which also holds an alcohol licence. Do we need to close the whole attraction?

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 café or restaurant, then our current view is that facility would need to adhere to the new restrictions, but this this does not necessarily mean the wider attraction would also need to close. This will depend on the exact area covered by the licence, but also the detail of the regulations which are awaited and we will update once known.

Q. We have a caravan in a small leisure park and were hoping to go over the October break. The park has a licensed bar/restaurant. Will this be open to caravan residents?

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.