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The restrictions are under The Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020.
“Relevant hospitality premises” is defined by the Regulations as a restaurant, cafe, bar, public house, or a hotel in which food or drink is sold for consumption on the premises.
As of 25 September 2020 hospitality premises must close their doors to the public between 10pm and 5am. Sadly, and contrary to the position in Wales, there is no allowance for drinking up time and therefore, premises must be closed and patrons out by 10pm. The curfew overrides the terms of any existing licence or permission.
Relevant hospitality premises can still continue to sell food and drink after 10pm in limited circumstances: (1) by way of room service in a hotel (or similar); (2) by delivery to the customer; or (3) collection via a drive thru, without having to leave your car. Notwithstanding these exceptions, it is important that the business makes sure that any deliveries of alcohol comply with the terms of its premises licence and the Licensing (Scotland) Act 2005. This means that orders for alcohol must be processed and paid for during licensed hours for off sales (usually but not always 10pm) and delivered by 12midnight. Businesses should familarise themselves with the delivery requirements under the 2005 and check their premises licences for any conditions that regulate the delivery of alcohol.
For the avoidance of doubt, this means that takeaway premises, fish and chip shops and others must close to customers by 10pm with orders being delivered from that point onwards.
As a result of this change, it will be important for businesses to:
While the Statutory Guidance now narrates that table service is required in all hospitality premises, the position is in our view nuanced. First, the Statutory Guidance still recognises that ordering may still take place at designated points (provided a risk assessment has been carried out). Second, the terms of the amended Regulations only make it a legal requirement in so far as food and drink must be consumed either off the premises, or sitting at a table. Consumption is the key word here in terms of table service; ordering and paying while not seated is still allowed, although face masks will be needed when moving within the premises. The use of technology for table selection, ordering and paying is also allowed, but patrons must be seated to eat. Where there is an inconsistency between Guidance and legislation, it is a matter of law that the terms of the legislation take priority over the Guidance.
These changes are yet another challenge, amongst many, for the hospitality industry. It is vital that businesses review their mode of operation to make sure that they comply with these legal requirements and consider whether alternative business models could be used to bridge the widening gap in trading hours. We at TLT are on hand to assist with any issues arising.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.
25 September 2020