Beyond level 0 for Scotland hospitality businesses

Hospitality businesses react to First Ministers announcement confirming 9 August 2021 end of “most” restrictions – is it a step back to life and a reality beyond Covid?

After weeks of business leaders calling for a need for change, and a positive one at that, the First Minister has responded with her statement to Parliament on 3 August 2021 confirming that the country will move “beyond level 0” on 9 August.

Headlines

The statement led with the headline that there will be an end to almost all legal restrictions on 9 August.

“The move beyond level 0 will entail the lifting of most of the remaining legally imposed restrictions - most notably on physical distancing and limits to the size of social gatherings. It also means that from 9 August, no venues will be legally required to close.”

Whilst the legal regulations underpinning this are yet to published and the devil is in the detail, the announcement is understood to mean that this is finally a goodbye to physical distancing, limits on group size and household numbers, curfews, table service, the ban on dancing and closure of the late night industry.

Another welcome change for hospitality businesses struggling with the so-called “ping-demic” was the post 9 August rule change removing the 10 day self-isolation for contacts “pinged” who:

• show no symptoms;
• who have been double jabbed (the second jab at least two weeks prior to the notification; and
• who have had a negative PCR test.

One therefore only isolates from the point of notification by Test & Protect to the point of receipt of the negative PCR test.

Remaining legal restrictions

The above mentioned relaxations are all to be welcomed, however the First Minster explained some legal requirements (set out below) will remain which may present challenges for the hospitality industry and make today’s announcement distinguishable from the unequivocal end to restrictions announced by Westminster. For many in the night time sectors, questions remain.

The main legal restrictions which will impact on hospitality include:

• Face coverings to be legally required in all indoor settings – although it remains to be seen what this means for masks in nightclubs, or standing at the bar. As was suggested in a response to Pauline McNeill MSP, some details were being worked out in as yet unpublished guidance (we will update this note as soon as this becomes available).
• Test & Protect contact tracing requirement in hospitality will remain in place and require operators to collect all customer details just as they do at present.
• In the short term large scale events (5000+ outdoors & 2000+ indoors) must still apply for permissions from the local authority.

In addition to the remaining legal restrictions the First Minister refused to rule out re-imposing more stringent restrictions keeping “on the table” both outbreak control by way of localised restrictions and travel restrictions both within and outwith Scotland.

Tone and guidance

Despite the undoubted optimism for business flowing from the statement, the tone leaves the Government open to claims of mixed messages, such as:

“… even though the law will not stipulate physical distancing from Monday, we will continue to advise the public that - especially indoors - keeping a safe distance from people in other households and avoiding crowded places will minimise risk.”

She also refused to rule out the use of Covid status certificates, but acknowledged how controversial they are from an ethical, equity and human rights viewpoint.

After over a year of struggling with onerous Government guidance for hospitality and events, many business leaders may feel that the reference to the publication of guidance to “assist individuals and businesses” is a potentially unwelcome complication and one which will come at the eleventh hour.  Understandably, there is a fear from many that this will be used to bring in restrictions on trade or activities (such as karaoke or buffet dining) through the backdoor.  However, inevitably there are matters that will need clarified (as referred to) such as face masks in pubs and nightclubs when customers are entitled to engage in vertical drinking, dancing and how that works in practice against the seemingly absolute requirement to wear face masks in all indoor settings.

Hospitality businesses need urgent clarification on what the guidance covers and the precise detail of the regulations. This is underlined by confusion arising from interviews given by senior members of the FM’s cabinet immediate prior to the publishing this article (4 August 2021). For example, the Deputy First Ministers comments on Good Morning Scotland that vertical drinking will not be permitted in pubs and nightclubs flies in the face of what was understood by the FM announcing an end to legal restrictions. 

Accordingly, whilst optimism still lingers in aftermath of the FM’s announcement to Parliament a sense of foreboding is beginning to creep in and at the time of writing, it remains to be seen if club goers will be queuing on Sauchiehall, George or Union Street ahead of the reopening of nightclubs post 9 August!

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