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Miller Samuel Hill Brown Solicitors Blog

From time to time we will post news articles and announcements relating to the firm and to various legal issues that may be of interest to you.

CORONAVIRUS CRISIS BRIEFING

COVID MSHB 

All information contain within this update is accurate at the time of publication. During these unprecedented times where the situation is constantly changing at pace it is vital that you take expert advice where necessary. Please do not hesitate to contact us if you wish to discuss any issues covered in these updates further. The Hill Brown Licensing Team and the wider team at Miller Samuel Hill Brown remain committed to providing the fullest possible service for the trade at this extremely challenging time.

CORONAVIRUS CRISIS LICENSING BRIEFING #24

Update 14 September 2020

New Scottish Government roadmap

The latest out-of-lockdown road map published by the Scottish Government leaves the re-opening of nightclubs in limbo and pushes back a number of re-starts to a new indicative date of 5 October.

Coronavirus Road Map24Grab

Updates to hospitality and tourism sector guidance

The guidance has been updated to reflect changes to the legislation effective from 14 September (see below). A new “FAQs” section has also been added.

New Regulations

The Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 revoke the much-amended Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. The new Regulations:

  1. Carry over provisions relating to
    1. Ministerial guidance without substantive modification; and
    2. the mandatory collection of visitor information with minor changes to the drafting.
  2. Strengthen provisions in relation to gatherings and the use of face coverings.

Ministerial guidance

It remains the case that “a person who is responsible for a place of worship, carrying on a business or providing a service must have regard to guidance issued by the Scottish Ministers” about measures to be taken in relation to minimising the risk of the incidence and spread of Coronavirus.

As before, a failure to follow the guidance cannot result in enforcement action under the regulations and is not an offence.

For a further analysis, see Scott Blair’s article referred to in our last briefing which has been updated with the new statutory instrument references and is available for download in PDF form here.

Visitor information

The requirement to collect visitor’s contact details is carried over with two modifications:

  1. The filing system in which information is recorded “may be an electronic system” (which many businesses will already have employed).
  2. Previously, the requirement applied to: “restaurants, cafes, bars, public houses and hotels in which food or drink is sold for consumption on the premises”. It now applies to “relevant hospitality premises”, defined as:

 (a) a restaurant, cafe, bar or public house, or

(b) a hotel in which food or drink is sold for consumption on the premises.

The reason for the change may not be immediately clear, but it appears to reflect the fact that the premises in group “(a)” sell food or drink by definition, while there may be some hotels that do not.

Face coverings

Previously, face covering requirements did not apply to hospitality venues, although the use of coverings by staff was encouraged.

Customers are now required to wear coverings except when seated at a table, when the covering may be removed even when food or drink is not being consumed. They must also be worn by staff but not those working at least two metres away from members of the public or behind a partition.   

A long list of other exemptions is contained in Regulation 13.

According to the “FAQs”, where a customer claims an exemption for health reasons that should be accepted without proof being required.

Gatherings

The number of people who can gather together, indoors or outdoors, is now set at maximum of six from two households. Children under 12 are not included in the number of persons gathering but are included when counting the number of households.

CORONAVIRUS CRISIS LICENSING BRIEFING #23

Update 10 September 2020

Too much guidance?

In June the Scottish Government published guidance for the hospitality and tourism sector on its website.

Updated frequently, it covers a range of Covid-19 issues affecting the licensed trade. It had no statutory backing until a revision on 14 August when a new “hospitality statutory guidance” section was added, authorised by regulation 4A(1) of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020.

But the difference between “the guidance” and “the statutory guidance” is difficult to discern. Regulation 4A(1) provides that:

“A person responsible for a place of worship, carrying on a business or providing a service must have regard to guidance issued by the Scottish Ministers relating to its premises, business or service.”

Yet, a failure to follow the statutory guidance is (a) not an offence and (b) expressly excluded from the enforcement provisions set out in the Regulations. In other words, placing the guidance on a statutory footing did not give it any “teeth”.

When the First Minister addressed the Parliament on 20 August it seemed that these gaps were about to be addressed, at least obliquely. Ms Sturgeon said that local authorities would be empowered to act in circumstances where hospitality businesses had not implemented the guidance effectively.

There followed the Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 (“the Directions Regulations”). These provide a tangential connection with the statutory guidance: when exercising its powers (see our Briefing #20, 1 September) a local authority must have regard to that guidance. They also make provision for further guidance, including guidance on:

(a) steps which should be taken and matters which should be taken into account before a direction is issued,

(b) the form a direction should take,

(c) the process for notifying the Scottish Ministers that a direction has been made.

That guidance has yet to be published.

So, as matters stand, we have:

  • Guidance.
  • Statutory guidance.
  • Prospectively, guidance on the Directions Regulations.
  • Guidance for the events sector which sits apart from the hospitality and tourism sector guidance and, as explained in Briefing #20, has generated confusion in the hospitality sector.

Leading licensing advocate Scott Blair, who is also an administrative law expert, examines the challenges posed for the trade and its advisers in an article we’ve commissioned in association with Scottish Licensing Law and Practice (SLLP). You can download the article in PDF form here.

CORONAVIRUS CRISIS LICENSING BRIEFING #22

Update 7 September 2020

Data collection: Q&A - Updated 14 September 2020

The collection of visitor information became mandatory for hospitality venues on 14 August (see our last update). Here we look a number of issues that have emerged over the past few weeks.

Q The data collection is sometimes presented as “collection customers’ information”. What exactly is the scope of the requirement?

A The Regulations require hospitality businesses to record “visitor information”: the names and telephone numbers of those visiting the premises (or a “lead member” for household groups). The purpose of the visit isn’t relevant. At her daily briefing on 14 August, the First Minister said, “[A]ll hospitality businesses must collect contact details for all visitors to their premises.” So, the requirement extends beyond customers to the likes of staff, including contract staff such as cleaners, and delivery drivers.

Q What’s the position regarding takeaway customers?

The data collection requirement applies to "relevant hospitality premises", defined as : “(a) a restaurant, cafe, bar or public house, or (b) a hotel  in which food or drink is sold for consumption on the premises". Contact information requires to be collected from customers visiting the premises for any reason, so takeaway visits are included except in the case of hotels where neither food or drink is sold for on-consumption.

Wrongly, in our view, the Scottish Government guidance on data collection continues to suggest, that, "If a business offers a mixture of a sit-in and takeaway service, contact information only needs to be collected for customers who are sitting in."

Q Is it necessary to collect information from those who are only visiting an outdoor area such as a beer garden or a temporary marquee?

A Yes. For the purpose of the Regulation “premises” includes “any building or structure and any land.”

Q Do businesses need to keep a record of the time customers leave their premises?

A Only the date of a visit and the arrival time must be recorded.

Q What about the use of QR code systems to capture data?

A According to the Scottish Licensed Trade Association, some businesses using that type of system have done so without any staff supervision to ensure that the details have been properly registered. The data collection must be overseen by a staff member, so that simply leaving an attended paper register is equally unacceptable.

Q How is information captured when customers arrive in groups?

A Businesses should not be taking information simply from the person who appears to be the group leader. Instead, the focus is on household members. Staff should record the information for “one member of each household” together with “a note of the number of any members of that person’s household.”

For example, Mr and Mrs Anderson visit premises with their two sons who live with them; their neighbours, Mr and Mrs Johnston; and Mr Brown, one of Mrs Anderson’s work colleagues. The business would record the group visit as follows:

NAME

TELEPHONE NUMBER

DATE OF VISIT

TIME OF VISIT

OTHER MEMBERS OF HOUSEHOLD?

John Anderson

0000 000000

21 August 2020

7.10 pm

3

Joan Johnston

0222 222222

21 August 2020

7.10 pm

1

Robert Brown

0111 111111

21 August 2020

7.10 pm

0

Q What’s the position where a visitor isn’t in a position to supply a telephone number?

A A postal or email address will be acceptable.

Q What should be done where a visitor or customer refuses to provide contact information?

A According to the Scottish Government’s guidance, the individual should be encouraged to share their details in order to support NHS Test and Protect and advised that these will only be used in the event of an outbreak or if a number of new cases are tracked back to the premises. However, while the individual is not under a legal obligation to provide the information, if it is withheld service should be refused.

Q In relation to staff, what details should a business record?

A The guidance suggests: (a) the names of staff who work at the premises; (b) a contact phone number for each member of staff ; and (c) the dates and times that staff are at work

CORONAVIRUS CRISIS LICENSING BRIEFING #21

Update 7 September 2020

Glasgow Board gives licence holders a “fighting chance”

A range of measures to help struggling licensed businesses has been announced by the City of Glasgow Licensing Board.

1. Nightclubs: temporary relaxation of restrictions

So-called “hybrid” premises offering late-night entertainment have restricted licensed hours and may not open for the sale of alcohol until the early evening. They’ve been advised that they should close at midnight while Covid-19 restrictions are in place.

On 4 September the Board announced a “temporary minor variation” procedure allowing clubs to trade as bars while curbs on  the operation of nightclubs remain. This will allow clubs to operate from 11am to midnight every day of the week with customers seated at tables.

Licence holders wishing to avail themselves of the procedure will require to submit:

  • A draft operating plan.
  • A Covid-19 risk assessment.

Applications will be the subject of consultation with Police Scotland, Building Standards, Licensing Standards and Environmental Health. They’ll be processed as quickly as possible under a delegated powers arrangement.

In a press release, Councillor Matt Kerr, the Board’s convener, said: “These are very much temporary measures intended to give licence holders a fighting change to protect jobs in the middle of an unprecedented situation”. 

If you require any assistance with an application, contact out licensing team.

2. Annual fees due on 1 October

The Board has decided that there will be a one-third reduction in fees for all premises with an on-sales licence component. This includes premises licensed for both on- and off-sales. The annual fee for “off-sales only” premises is unchanged. We understand that annual fees letters will be issued as soon as possible.

3. Occasional licences

Occasional licences and Section 59 roads permissions were all granted until 30 September. That date has now been extended to 31 March 2021 to provide the trade with ongoing support.

In the result, all occasional licences already granted will be extended to the new date without the need for an application or fee.

The Board will be issuing a letter to all occasional licence holders to advise them of the extension and of the conditions under which the licences were granted. These include ongoing compliance with the Scottish Government’s Covid-19 sector guidance for hospitality and tourism

The licensing section of Glasgow’s City Services web pages will be updated to reflect the changes.

CORONAVIRUS CRISIS LICENSING BRIEFING #20

Update 1 September 2020

Latest lockdown relaxations

As set out in the latest Scottish Government road map (see our last update) amusement and games facilities (fruit machines, pool tables, darts but not dominoes) are now permitted in hospitality venues on a risk-assessed basis. Further information appears in the latest version of the Government’s sector guidance.

Bingo halls and casinos are also allowed to resume operations and these businesses now fall within the guidance.

Events confusion

The road map reference to the opening up of “certain outdoor live events” led to the expectation that these could take place in licensed outdoor spaces. But according to new, separate guidance for the events sector the types of events it describes (outdoor seated live events and outdoor spaces live events):

“may not take place in general hospitality areas, such as beer gardens, that are currently operating for the serving of food and drink and are subject to a 1 metre physical distancing exemption.”

That of course begged the question as to whether events involving music could take place in large licensed outdoor areas where two-metre distancing was possible.

The answer appears to be “No”. Many premises licences are subject to a condition providing that no amplified music is to be played in, or relayed to, an outdoor area. But even where no such condition exists, the statutory guidance continues to impose a ban on music in hospitality premises, whether outdoors or indoors

As to other forms of outdoor entertainment, the position remains unclear but enforcement authorities appear to be taking the view that the events sector guidance simply does not apply to licensed premises. Operators considering the provision of non-musical entertainment outdoors should take legal advice.

New local authority powers

New Regulations in force from 28 August give local authorities sweeping new powers to address the Coronavirus pandemic "by proportionate means", fulfilling the First Minister's pledge to step up enforcement of the statutory guidance.

Authorities may now issue "directions" imposing "prohibitions, requirements or restrictions" in relation to specified premises, for the purposes of:

  • Closing the premises.
  • Restricting entry to the premises.
  • Securing restrictions in relation to the location of persons on the premises.

In particular, a prohibition, requirement or restriction can relate to:

  • The number of persons on the premises.
  • The purpose for which a person is on the premises.
  • The facilities in the premises.

A direction has to state:

  • The date and time on which the measure comes into effect.
  • The date and time when it will cease to have effect - which must be no later than 21 days after it comes into effect.
  • Details of a right of appeal.

There are also provisions requiring the local authority to take "reasonable steps" to give advance notice of the direction to:

  • A person carrying on business at the premises.
  • If different, the owner or occupier of the premises.

Further provisions relate to events and access to public outdoor spaces.

The directions are enforceable by a designated local authority officer (likely to be an environmental health officer) and the police. A breach will lead to the issue of a fixed penalty notice which could reach £960 for repeated offences. More materially, it's likely that breaches will be reported to Licensing Boards and result in premises licence reviews. While there is a right to appeal, the way in which that might be exercised is subject to uncertainties which trade lawyers have raised with the Scottish Government. 


CORONAVIRUS CRISIS LICENSING BRIEFING #19

Update 21 August 2020

Statutory guidance: new enforcement measures

In our last update we looked at the confused status of the new statutory guidance issued by Scottish Ministers containing, among other measures, the controversial ban of music and television sound.

In her lockdown review yesterday, the First Minister announced a significant development. After acknowledging the efforts of many licensed trade outlets to comply with the guidance she said:

“However, we know that not all hospitality businesses have implemented the guidance effectively, so we intend to strengthen the powers of local authorities to act in such circumstances.

“The Scottish Government has powers… to issue directions in respect of a class of premises – for example, a direction to close all pubs in a particular postcode. We intend to give local authorities the power to act in relation to individual specific premises that are breaching guidelines and risking transmission of the virus. That power would enable local authorities to close such premises or impose such conditions on their remaining open, where they deem that that is necessary for the purpose of preventing, protecting against or controlling the spread of infection.

Regulations to implement this power will be introduced next week and come into effect on 28 August.

We cannot over-emphasise the risks now involved in failing to adhere to the guidance. Hospitality outlets should immediately carry out a meticulous review of their operating practices in the light of its requirements or risk closure.

This page will be updated as soon as the Regulations are published.

Yesterday also saw the publication of the latest lockdown-easing road map, which we’ll also examine in the next update.

Coronavirus Road Map 200820 Grab


CORONAVIRUS CRISIS LICENSING BRIEFING #18

Update 17 August 2020

Statutory guidance

Scottish Ministers have now issued “hospitality sector statutory guidance” which sits within the “main” guidance for the hospitality and tourism sector.

New measures

The statutory component sets out a number of “new measures” taking effect from 14 August and lists “existing measures”.

The new measures are:

1. No background music and no television sound

The Scottish Government believes that music or background sound at any level may lead to raised voices which increase the risk of virus transmission.

At her briefing on 14 August, the First Minister acknowledged that “atmosphere in pubs and restaurants is important” and gave an indication that the matter might be revisited:

“[W]e are willing to work with the sector to see if it might be possible to agree a more nuanced position based on an acceptable decibel level, but as you will gather just from what I have said there that will not be simple and it will take time

2. Noise control: Loud behaviour

Where customers start to shout or sing “this should be challenged”. It’s suggested that clear signage can help to inform customers of expected standards of behaviour.

3. Queue management

There should be no queuing inside premises except where takeaway services are being provided with physical distancing Outdoor queuing should be avoided as far as possible: where it’s necessary for safety reasons, distancing measures should be put in place. In effect, as reflected in “existing measures”, systems should be in place to ensure that all customers are seated.

Status of the statutory guidance

The “empowering” Regulation provides that:

“The Scottish Ministers may issue guidance on measures which should be taken… in order to minimise the risk of the incidence and spread of coronavirus.”

The obligation falling on businesses and service providers is as follows:

“A person responsible for… carrying on a business or providing a service must have regard to guidance issued by the Scottish Ministers relating to its premises, business or service.”

However, despite the use of the word “must”, failure to comply with the Regulation is not an offence nor is it a matter for enforcement by police or a designated local authority officer. A business owner could receive a fixed penalty notice for failing to collect visitor information (see our last update); but no such consequence would flow from providing background music.

It’s a confusing – in fact, unsatisfactory - state of affairs. Clients are understandably asking us about the consequences of departing from the guidance where they feel that can be done in a risk-managed way. For example, would it be reasonable to allow customers to order a drink using an app and collect the order at the bar, provided that the order collection was limited to one customer at a time?

There are clues:

  • According to Ms Sturgeon:

“By making the guidance statutory – so that premises must take account of it – we are aiming to ensure greater compliance with the guidelines.”

  • The following passage appear in the guidance:

“Failure to have regard to its terms is a matter likely to be taken into account should it become necessary to take enforcement action under public health legislation.”

There’s also an emphasis on the central importance of risk assessments:

“Undertaking a full risk assessment and implementing the necessary measures to protect staff, other workers/visitors and the public is not optional and must be carried out by all those operating in the hospitality sector.” [Our emphasis.]

“Businesses should… review their risk assessment against this guidance, making relevant changes where necessary.”

Our Licensing Director examined the importance of risk assessments in a recent Scottish Licensed Trade News article. In our view, although a failure to “have regard to” the statutory guidance has no direct consequences connected to a breach of Regulations, businesses can best protect themselves from public health enforcement action – and ensure the wellbeing of their customers and staff – by taking a conscientious approach to the assessment. Now is the time to review and update in the light of the statutory guidance.


CORONAVIRUS CRISIS LICENSING BRIEFING #17

Update 14 August 2020

Data collection is now mandatory

Further amendments to the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations, in force from today, require businesses to keep a record of customers’ details.

The premises affected are:

Restaurants, cafes, bars, public houses and hotels in which food or drink is sold for consumption on the premises.

The information which must be recorded is as follows:

  • The name and telephone number of one member of each household visiting the premises.
  • The date of their visit and arrival time.
  • A note of the number of any members of that person’s household visiting the premises at the same time.

The required details are to be kept “in a filing system suitable for recording, storing and retrieving” the information and must be retained for at least 21 days from the date of a visit.

The “person responsible for premises” (an expression that includes the owner, proprietor and manager) is under a duty to provide the recorded information to a public health officer “as soon as reasonably practicable but in any event within 24 hours” when requested to do so.

The information so supplied will be used to support NHS Scotland’s Test and Protect programme.

The Scottish Government’s guidance for hospitality and tourism has been updated today to take account of the new Regulations.

Requirements under the Data Protection legislation

Where data is stored electronically (rather than in paper form) businesses must be registered with the Information Commissioner’s Office.

A privacy notice should be made available to customers explaining how their data will be handled.

It must not be used for marketing purposes.

The deletion of the data after the minimum retention period (see above) must be carried out securely.

Our data protection experts are available to provide assistance in this area.

Statutory guidance

The Scottish Government has also published statutory guidance which sits within the guidance for the hospitality and tourism sector. We’ll be looking at its contents in our next update to be published shortly.


CORONAVIRUS CRISIS LICENSING BRIEFING #16

Update 10 August 2020

More restrictions imminent

A spike in Covid-19 cases associated with licensed premises in Aberdeen has resulted in the re-imposition lockdown measures in the City.

All indoor and outdoor hospitality venues required to close from 5pm on 5 August. The Regulations extend only to the Aberdeen City local government area and not wider Aberdeenshire.

Mandatory data collection

The Aberdeen cluster has triggered a move to place customers’ data collection on a mandatory footing. At the moment, the Scottish Government’s sector guidance encourages businesses to collect contact details to support NHS Scotland’s Test and Protect programme. A new Regulation – expected on Friday 14 August - will make the collection a legal requirement.

There’s also at least a possibility that venues will also be obliged to record the time at which customers’ leave the premises if a decision is taken to prevent so-called “bar hopping” – know to be a concern to the First Minister.

New statutory guidance

During her daily briefing on 7 August Mrs Sturgeon also announced that statutory guidance will shortly be published. The foundation has already been put in place. The latest set of amending Regulations make provision for “guidance on measures which should be taken…in order to minimise the risk of the incidence and spread of Coronavirus”.

A persons responsible for a place of worship, carrying on a business or providing a service “must have regard to” the guidance. However, for reasons which are unclear, the requirement falls outwith the enforcement provisions of the Regulations and there is no associated offence.

Other measures

The First Minister also referred to a number of other measures, although it’s not presently known whether these will be embodied in Regulations or form part of the statutory guidance:

  • Customers should pre-book tables.
  • Customers should not be standing together to watch football, dancing or queuing at the bar.
  • There should be no outside queuing. Where this is unavoidable, those in queues should be physically distanced.
  • Background must should be switched off and television sound muted.

Restrictions on the operation of licensed businesses are increasingly complex. If you’re in any doubt about your obligations or need help with any licensing matter, contact our team of licensing experts.


CORONAVIRUS CRISIS LICENSING BRIEFING #15

Update 31 July 2020

Latest lockdown-easing news

The First Minister’s route map update on 30 July brought no new firm reopening dates for the licensed trade.

However, we now have some indicative dates, as follows:

From Monday 24 August:

  • Live outdoor events, with physical distancing, enhanced hygiene and restricted numbers – following guidance.
  • Bingo halls, with physical distancing and following guidance.
  • Amusement arcades and casinos – following guidance, including enhanced hygiene.
  • Snooker and pool halls, indoor bowling – following guidance, including enhanced hygiene.

From Monday 14 September:

  • Live indoor events – following guidance (e.g., with physical distancing and restricted numbers).
  • Other indoor entertainment venues – e.g., theatres, live music and concert venues – following guidance such as physical distancing. This category does not include nightclubs.

There’s no expectation that other changes will be introduced before 11 September.

Guidance “Q&A”

A “Q&A” document aimed at providing further clarity for hospitality businesses following publication of Scottish Government’s sector guidance is now available on the Scottish Licensed Trade Association’s website.


CORONAVIRUS CRISIS LICENSING BRIEFING #14

Update 14 July 2020

Phase 3 underway

The Scottish Government has now published an updated road map confirming the full reopening of hospitality venues and accommodation providers from 15 July, subject to social distancing requirements and guidance.

Coronavirus Road Map Updated 090720

The possibility of operating with a 1-metre social distancing minimum comes into effect on the same date for outdoor and indoor hospitality venues and is addressed in the Government’s update Tourism and Hospitality Sector Guidance. A revised risk assessment template has also been published. The importance of risk assessments is explained in our Getting Good to Go guide. It’s absolutely imperative that businesses now revisit their assessments and revise where necessary. Those planning to operate with 1-metre physical distancing must incorporate the appropriate measures.

The Guidance says:

“It is acknowledged that not all of these measures will be relevant in every setting but that it is for individual businesses to consider where they do relate to their specific business and reflect this in their risk assessments. These are in addition to existing measures required for operating at two metres, which still applies to all other areas covered by the sector guidance where two metres remains the default.”

There’s still no good news for nightclubs and other live events businesses. These will not reopen before 31 July, although the new road map gives a very broad indication that “live events (outdoors)” might be able to resume slightly earlier.

If you require any licensing assistance our experts are always on hand to help.


CORONAVIRUS CRISIS LICENSING BRIEFING #13

Update 6 July 2020

Social distancing

The First Minister has announced a forthcoming relaxation of the 2 metre social distancing requirement in the hospitality sector.

The change is due to take place when indoor areas are permitted to open on 15 July.

Operators will be expected to take a number of “mitigation measures”. An “illustrative” list has been provided to help businesses with their relaunch preparations:

Coronavirus Road Map Updated 020720

Further, detailed guidance will follow.

Announcing the change, Nicola Sturgeon said:

“[W]e will also insist on clear customer information to help inform the judgements we make as individuals about the risks we are prepared to take.

“So, if a business decides to operate at less than 2 metres, they should provide clear signage informing their customers that they are entering a 1 metre zone…

“[I]f infection levels were to rise again, we reserve the right to re-impose a strict 2 metre rule, either nationally or locally, or take other public health measures that are necessary to keep us safe.”

Outdoor areas opening from 6 July must comply with the 2 metre requirement until the reduction comes into effect.

Data collection

The Scottish Government’s tourism and hospitality sector guidance has been updated to include guidance on the collection of customers’ data.

In summary:

  • The gathering of data is intended to support the NHS Test and Protect scheme.
  • Businesses are not legally obliged to collect data but the Scottish Government believes that the measure is “crucial to national efforts to suppress the virus”.
  • Where data is stored electronically (rather than in paper form), businesses must be registered with the Information Commissioner’s Office.
  • A privacy notice should be made available to customers explaining how their data will be handled
  • Data should be securely deleted after a 21-day retention period.
  • It must not be used by a business for marketing purposes.

To view our latest guidance on Collecting Customer Details click here.

Please contact us if you require advice in this area from our GDPR experts.


CORONAVIRUS CRISIS LICENSING BRIEFING #12

Update 30 June 2020

Scottish Government publishes guidance on safe toilet opening

The hospitality and tourism sector guidance referred to in our last update has now been revised with the inclusion of a link to guidance on the safe use of toilets. Our analysis of the sector guidance can be downloaded here and takes account of this new guidance.

Businesses gearing up to provide outdoor drinking facilities from 6 July now have confirmation that that indoor toilets may be made available for customers.

But all businesses planning to resume trading in Phase 2 will now require to ensure that their risk assessments reflect the latest guidance and that pre-reopening checks and any necessary works are carried out accordingly.


CORONAVIRUS CRISIS LICENSING BRIEFING #11

Update 26 June 2020

Easing lockdown: Key road map dates announced

The First Minister has now announced a number of key dates on the path to the re-opening of the hospitality and tourism industry. A revised road map has also been published:

Coronavirus Road Map Grab 240620

Nicola Sturgeon stressed that these are indicative dates for the remainder of Phase 2 and the early part of Phase 3:

  • 3 July: Re-opening of self-contained holiday accommodation – for example holiday cottages and lodges, or caravans where there are no shared services.
  • 6 July: outdoor hospitality such as beer gardens will be permitted to re-open. As we explained in our last update, the Scottish Government’s decision to seek further advice from its Scientific Advisory Group pushed back the original plan to allow reopening from mid-June. That advice is expected on 2 July and will allow guidance to be issue and “any necessary mitigations” put in place.
  • 15 July: pubs and restaurants will open indoors from 15 July - but on a limited basis initially and subject to a number of conditions. Detailed guidance will be issued as soon as possible. On the same date, all holiday accommodation can re-open.

No dates – indicative or otherwise – have been announced in relation to nightclubs, casinos and other “live” entertainment venues. It’s highly unlikely that any changes here will take place before 23 July. Further announcements will be made by the First Minister at next review stage on 9 July.

Other developments

Social distancing

No decision has been taken on the reduction of social distancing from 2 metres to 1 metre (the larger distance being mandatory in premises currently allowed to be open). In her statement to the Scottish Parliament on 24 June, the First Minister said:

“It might be possible to allow relaxation of the 2m physical distancing rule. I will receive that advice next week, and will report on it by 2 July. We will issue guidance as soon as possible after that.”

Guidance

The Scottish Government has issued hospitality and tourism industry sector guidance available here.

We’ve produced a summary of the salient points which you can download here.

Guidance has also been issued to Licensing Boards under Section 142 of the Licensing (Scotland) Act 2005. Because it has statutory backing, Boards must have regard to guidance when carrying out their functions under the Act. It proceeds on the basis that the Scottish Government wishes to assist the licensed trade in its recovery from the economic impact of Covid19:

“Flexibility and pragmatism in decision-making and sensitivity to the wider economic situation should be at the forefront of how a Board decides to operate.”

In relation to occasional licences for outdoor areas, Boards are expected to consider all applications “sensitively” and “with no unnecessary hurdles” put in place.

Data collection 

Licensed businesses will be required to collect customers’ contact data to assist the  NHS Scotland “Test and Protect” scheme. This will raise important data protection issues for the trade and we’ll be providing guidance for our clients when we have more information about the data gathering.


CORONAVIRUS CRISIS LICENSING BRIEFING #10

Update 19 June 2020

Easing lockdown: Outdoor opening delayed

The hospitality industry has suffered an unexpected blow with the delayed reopening of outdoor areas.

The original Scottish Government route map held out the prospect of pubs and restaurants opening “outdoor spaces with physical distancing and increased hygiene routines” following the Phase 2 review (see last update). Although there was no absolute guarantee, trade confidence was high with an expectation that Licensing Boards would be in a position to issue occasional licences starting in the next few days.

But a revised route map published yesterday has pushed the earliest date back to 2 July:

Coronavirus Road Map Grab 180620

In the course of her daily briefing statement, Mrs Sturgeon told the Parliament:

"We may be able to set a date later that is within phase 2, but I have commissioned further advice from our Scientific Advisory Group to inform this decision.

"There is emerging evidence that places such as pubs, restaurants and gyms can be hotspots for transmission.”

She expects the “further advice” in two weeks’ time.

The reference to “hotspots” may well have an adverse impact on customer confidence. Graham Simpson MSP wanted to know why outdoor markets posed an acceptable risk but not beer gardens. (Those markets are permitted to open from 29 June along with outdoor sports centres and a number of other businesses.)

Mrs Sturgeon referred to “breathing patterns” - shouting and singing were more likely to create a virus transmission risk:

 "There is a lot of emerging evidence that, in particular locations, including pubs, whether indoors or outdoors, the risk of transmission could be higher…[W]e are talking about places where people’s pattern of breathing might be changed. If someone is shouting to be heard over music or is singing, they are more likely to inhale and have the virus transmitted that way."

There was also confirmation that the Scottish Government presently remains wedded to social distancing at 2 metres. The First Minister told the chamber that a change would require “rigorous consideration”, although it might be possible to reset the distance and 1 metre or 1.5 metres with “additional mitigations”. The Scottish Licensed Trade Association and other industry bodies have warned that a 2-metre requirement would leave many venues operating at an unviable capacity.

New Scottish Government publications

Two new sets of guidance have been published:

1. Sector guidance for tourism and hospitality businesses covering safe operating procedures including the preparation of risk assessments.

2. Guidance for occasional licences issued to Licensing Boards under Section 142 of the Licensing (Scotland) Act 2005. This encourages Boards to approach occasional licence applications for outdoor areas “with a keen and focused sense on the needs of the on-sale business to seek recovery from the Coronavirus outbreak”. The Scottish Government “expects all applications to be considered sensitively with no unnecessary hurdles having to be overcome prior to the granting of an occasional licence”.

The guidance also makes it clear that Boards will wish to satisfy themselves that applicants can meet the terms of the sector guidance and legal provisions on Coronavirus transmission prevention.


CORONAVIRUS CRISIS LICENSING BRIEFING #9

Update 25 May 2020

Easing lockdown: Scottish Government route map – and its challenges

The Scottish Government has now published a route map setting out a phased removal of lockdown restrictions.

In relation to the country’s hospitality businesses, the steps – in phases 2, 3 and 4 - are more or less in line with trade expectations:

Coronavirus Road Map May 210520

As to timings, there’s speculation the implementation of the changes will coincide with the three-weekly lockdown review cycle. On that basis, we might expect licensed outdoor areas to reopen in the second half of June. However, the Scottish Government has made it clear that certain phases may extend beyond a review period. If so, open air drinking could be pushed back until July; and it may be optimistic to assume that phases 3 will be triggered before August.

Until phase 4 is reached, the licensed trade faces substantial challenges. “Distancing” is plainly central to the Scottish Government’s strategy: the word “distancing” appears around 100 times in the 46-page route map document. But keeping apart customers in pubs, restaurants and cafés will inevitably shrink capacities dramatically. The Scottish Licensed Trade Association [SLTA] estimates that if the “safe” physical distance is set at 2 metres capacities could be slashed by up to 80 per cent.

Land-locked premises will need to remain closed until phase 3 and those with small licensed external areas have no little or no prospect of trading when phase 1 commences.

Where extra outdoor space is available, putting the necessary regulatory permissions – planning, licensing and roads authority consent – will be time consuming and costly. Customers will need access to toilet accommodation, with distancing potentially leading to long queues and the deployment of staff to manage entrances and exits – in fact, it might be necessary to operate a one-way system. And, of course, the vagaries of the Scottish weather could also put a damper on viability.

“Hygiene” is another word used liberally in the route map plan. But as yet there’s no detail on the measures operators will require to adopt. In a Herald article Graham Suttle, the highly-experienced managing director of a Glasgow pub and restaurant group, expressed his concerns that additional overheads will be generated, further eroding viability.

The Scottish Government is now under pressure from trade organisations to remove a palpable existential threat to the country’s hospitality industry. The immediate priorities are the creation of more pavement space to allow for the expansion of outside drinking areas and a slackening of the regulatory processes.

While this update contains few positives, the team at Hill Brown Licensing are always on hand to provide our clients with help and advice – and wherever possible provide solutions to the licensing challenges as we continue to navigate these turbulent waters.


CORONAVIRUS CRISIS LICENSING BRIEFING #8

Update 23 April 2020

Business closures: The Health Protection Regulations

In our Briefing #5, we set out details of the businesses required to close and the conditions under which others could continue to trade.

The position is now enshrined in The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. To date, there have been two sets of amendments to the Regulations. The first corrects two typographical errors while the second:

  • extends the so-called “social distancing” requirements to all business that have been permitted to remain open, including workplaces occupied by non-furloughed staff who are not working remotely; and
  • provides that holiday accommodation providers who have required to close may continue to provide information or services online, by telephone or by post.

The Scottish Government has now produced guidance on social distancing and business closures. It also suggests that all business premises, sites and attractions not required by law to close should close now unless they meet certain criteria.

In the past few weeks, there have been reports on newspaper websites and on social media that police have challenged members of the public who, in an officer’s opinion, have not left home for the purpose of buying essential items. For example, according to Edinburgh Live, an Edinburgh shopper claimed her friend had received a fixed penalty notice “for buying a bottle of Prosecco”.

While these reports are anecdotal, it’s worth making the position regarding alcohol purchases clear.

As a starting point, it’s an offence to leave the place where you are living unless you have a “reasonable excuse”. The Regulations provide that “reasonable excuse” embraces a number of specified activities, including:

“to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for a vulnerable person and supplies for the essential upkeep, maintenance and functioning of the household or the household of a vulnerable person, or to obtain money”

It would appear that police quarrels with alcohol purchases (assuming there is some substance in the reports) proceed on that basis that alcohol is not a “basic necessity” (a view with which the majority of the population would doubtless disagree).

But that’s a position without any legal foundation. The Regulations specifically provide that “Off licences and licensed shops selling alcohol (including breweries)” are permitted to remain open. Restaurants, cafés and pubs are permitted to sell food and alcohol for collection or delivery (alcohol sales being, of course, dependent on authorisation in the licence).

The expression “basic necessities” is not happily chosen. But it simply cannot be the case that premises allowed to remain open are not permitted to serve customers. Putting that in sharp focus, it would be absurd if the Prosecco purchaser had been assailed upon leaving an “off-licence”.

There may not be any hard, indisputable evidence that Police Scotland have, in fact, taken a perverse view on what is, or is not a “basic necessity”. However, it is a matter of record that Northamptonshire Police Chief Constable Nick Adderley announced that his officers might begin to check shoppers’ trolleys to determine whether they contained “legitimate essential items”. Following a predictable backlash, Mr Adderley was obliged to repent of these threats.

Postscript: Scottish Grocer has now published the following response from the Scottish Government on the trade paper’s Twitter feed:

"Convenience stores across Scotland are playing a crucial role in supporting their communities and vulnerable people in particular during the crisis.

“As long as they can adhere to the social distancing guidance, they are able to continue trading throughout the lockdown and there are no restrictions on the types of goods that they can continue to sell.”


CORONAVIRUS CRISIS LICENSING BRIEFING #7

Update 2 April 2020

Licensing emergency measures set to go “live”

The Scottish Parliament has now passed the Coronavirus (Scotland) Bill which will come into force on the day following Royal Assent, expected to be given early next week.

There have been no amendments to the alcohol licensing measures explained in our last update.

The principle provisions in relation to licences issued under the Civic Government (Scotland) Act 1982 - such as public entertainment and late-hours catering licences – are as follows:

  • The Bill extends the time allowed for the consideration of applications by licensing authorities from nine to twelve months.
  • Currently, renewal applications require to be made before the expiry of a licence. “On good cause shown” the authority may accept a late application made up to 28 days after the expiry date. The Bill expands this safety net by stretching the 28 day period to three months.
  • Provision is made for “remote” hearings similar to those being put in place for alcohol applications.

CORONAVIRUS CRISIS LICENSING BRIEFING #6

Update 31 March 2020

Today the Scottish Government published the Cornonavirus (Scotland) Bill which includes various licensing provisions designed to help the trade and Licensing Boards in these very testing times. The Bill will be laid before Parliament tomorrow with the expectation that it pass all three stages the same day. The Government tells licensing stakeholders: "If something cannot be done due to coronavirus, then the Scot Government wants the licensing system to be able to reflect that, with no loss of rights arising, that is what licensing provisions... intended to achieve"

The headline changes are:

Personal Licences

  • Personal Licenceholders have up until the day before their expiry date to renew their licence (an extension of 3 months) if it couldn’t be done in time due to reason associated with coronavirus.
  • Licensing Boards have an additional 6 months to determine the renewal from the expiry date.
  • Licensing Boards are given discretion to extend personal licence refresher training deadlines for individuals unable to comply and can give additional extensions if required.

Premises Manager changes

  • 7 day period within which notice has to be provided to the Licensing Board when a manager leaves/becomes incapable of acting, is extended to 28 days.
  • Licenceholder then given 3 months to nominate a new premises manager or a longer period if this can’t be complied with and a request for an extension is made.

Takeaways – New Mandatory Condition inserted to clarify position on takeaways

  • If food is sold on the premises but the operating plan contained in the licence does not contain an express term to the effect that food may be taken away, or delivered, from the premises for consumption off the premises, a term to that effect is to be implied into the operating plan.

Hearings

  • Provision made for Licensing Board hearings to held using remote technology or for submissions to be made in writing. This includes both phone and video conferencing if the Board have the facilities. Aberdeenshire have already introduced this facility and it looks like all Boards will now follow. Parallel provisions also proposed in relation to hearings under the 1982 Act (more to follow).
  • Timescales for holding hearings also extended if it can’t be met for reasons associated with Coronavirus

Extended Hours Applications

  • Objection periods for LSOs and Police Scotland extended.

Provisional Premises Licence Periods

  • 4 year period extended by a further 6 months if request made and is required due to reasons associated with Coronovirus.

Transfers

  • In certain circumstances - the death, incapacity, insolvency or dissolution of the premises licence holder - a transfer application must be made within 28 days. Otherwise the licence ceases to have effect. The Bill allows Boards to accept an application after the end of that period if it can't be lodged on time for a reason related to coronavirus.
  • The premises licence will not cease to have effect provided an application for transfer has been lodged.

Many of the provisions require a ‘reason relating to Coronavirus’ so it is hoped and expected that Licensing Boards will interpret this widely.

The Bill also makes changes to the Civic Government (Scotland) Act 1982 in particular in relation to expiry dates and renewals. We will provide an update on this shortly.

All of these legislative changes if approved will expire after 6 months but they may be extended for two further periods of six months, giving a maximum duration of 18 months. 

The full Bill is available here https://www.parliament.scot/parliamentarybusiness/Bills/114929.aspx


CORONAVIRUS CRISIS LICENSING BRIEFING #5

Update 27 March 2020

Business closures latest

Delivery and takeaway services

The Scottish Government has now clarified the position in relation to licensed premises operating delivery and takeaway services but which have been obliged to close for normal trading.

Restaurants and cafés can remain operational for “food delivery and takeaway”. “Public houses” are in a similar position. Although no exceptions are listed for “bars”, in our view they fall into the same category as public houses in relation to deliveries and takeaways where they’re in a position to supply food.

“Food” includes alcohol but see our post dated 19 March in relation to deliveries.

There is nothing to prevent customers who are collecting orders from entering these premises but they must not do so for any other purpose.

Businesses should operate “social distancing” arrangements by:

  • ensuring a distance of at least two metres between customers and shop assistants, with equivalent measures to protect staff consistent with “fair work principles”;
  • letting people into the premises only in small groups to prevent spaces being crowded; and
  • taking queue control measures consistent with social distancing advice outside of the premises.

Shops licensed for off-sales

As part of a number of retail closure exceptions (e.g., supermarkets and corner shops), the following may continue to trade: “Off-licences and licensed shops selling alcohol, including those within breweries, newsagents, post offices and banks”.

Hotels and other accommodation providers

The Scottish Government’s latest position is as follows:

Hotels: Where people are resident on an interim basis while their primary residence is unavailable, they may continue to do so. Key workers can continue to stay in hotels “or similar”.

Hotels, hostels, B&B accommodation, campsites and boarding houses for commercial use:  Key workers, permanent residents, and non-UK residents who are presently unable to travel to their country of residence can continue to stay in hotels or similar where required. Those who are unable to move into a new home due to the current restrictions  can also stay at hotels. Where hotels, hostels and B&B establishment are providing rooms to support homeless and other vulnerable people, such as those who cannot safely stay in their home, through arrangements with local authorities and other public bodies, they may remain open. Hotels are permitted to host blood donation sessions.

Caravan parks/sites for commercial use: Where people live permanently in caravan parks or are staying in caravan parks as “interim abodes” where their primary residence is not available, they may continue to do so.

  • It’s important to note that these are exceptions to the overall closure position so that, for example, hotel bars, restaurants and spa facilities must remain shut.

The above supersedes parts of the announcement made by the First Minister on 23 March (as below).

Workplace canteens

Where there are no practical alternatives, workplace canteens can remain open to provide staff food and/or provide a space for breaks. However, where possible, workers should be encouraged to bring their own food and distributors should move to takeaway.

Measures should be taken to minimise the number of people in the canteen at any one time by, for example, setting up a rota.

Cinemas, theatres and concert halls

Live streaming of a performance by a small group “could” be permissible with social distancing observed. Blood donation sessions are permitted.

No exceptions

No closure exemptions have been allowed for:

  • bingo halls, casinos and betting shops;
  • nightclubs;
  • premises used for assembly and leisure purposes - e.g, bowling alleys and fitness studios.

CORONAVIRUS CRISIS LICENSING BRIEFING #4

Update 23 March 2020

Hotels told: Don’t accept guests

Following the closure of pubs, restaurants and cafés, the position regarding hotels and B&Bs generated considerable uncertainty. It seemed that accommodation could still be provided, provided bars, restaurants and communal eating areas (including staff canteens) were closed.

The First Minister has announced today that accommodation providers “should not be accepting visitors”. (This includes providers of self-catering accommodation.) However, they should continue to provide staff with accommodation and be ready to provide an essential service in this crisis if required.

We expect that this move will receive full legal backing throughout a package of emergency legislation measures later this week.

On 21 March the Westminster Government took powers in England and Wales to ensure that restaurants; cafés, staff canteens; bars; public houses; bars, restaurants and dining rooms in hotels/clubs; cinemas; nightclubs; theatres; bingo halls; concert halls; museums/galleries; casinos; betting shops; spas/parlours closed or remained closed.

This measure - the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 - was not interpreted as preventing the provision of accommodation, providing that food and beverages were only supplied by room service.

Police Scotland issue closure orders

Scotland’s Police Force has promised robust action against pubs who have defied the instruction to close.

Emergency closure orders will be issued under Section 97 of the Licensing (Scotland) Act 2005. The closure period cannot exceed 24 hours but Section 99 allows for extensions. These orders do not require the sanction of the Licensing Board and can be issued by a police officer of or above the rank of inspector. They proceed on the basis of public safety or disorder on, or in the vicinity of, licensed premises.

According to Deputy Chief Constable Malcolm Graham, the level of compliance has been “exceptionally high” and that “only a small number” of public houses have declared an intention to remain open until legally obliged to shut down.

Where an emergency closure has been issued the premises concerned will be reported to the Licensing Board for further action.

As in the case of hotels and other venues (see above) emergency legislation is expected to fortify police powers within the next few days.


CORONAVIRUS CRISIS LICENSING BRIEFING #3

Update 23 March 2020

During this extremely challenging time for all in the licensed trade where many staff lay offs are expected, you can find practical advice from our employment law team at the following links:

Information on new coronavirus staff retention scheme - https://www.mshblegal.com/news/hr-brief-the-coronavirus-job-retention-scheme.html

Tips for employers on home working - https://www.mshblegal.com/news/homeworking.html

What employers need to know during the pandemic - https://www.mshblegal.com/news/coronavirus-what-should-employers-know.html

If you are looking to take advantage of the Government scheme and put staff on furlough we can provide you with a step by step guide and documentation. Please email This email address is being protected from spambots. You need JavaScript enabled to view it. if this would be helpful.


CORONAVIRUS CRISIS LICENSING BRIEFING #2

Update 19 March 2020

Alcohol deliveries: Further guidance

It’s clear that online deliveries are set to boom during the emergency and we’re now providing more detail what businesses must do to stay legal.

What does your premises licence have to say before you offer a delivery service?

As we mentioned in the last bulletin, in our view a premises licence operating plan . doesn’t need to include “alcohol deliveries” as an activity. So, provided that the operating plan includes off-sales, the right to deliver is implicit. That view is not shared by every Licensing Board. Some, including Highland, West Dunbartonshire, Scottish Borders, Falkirk and Argyll & Bute require you to state if you are offering a delivery service when applying for a premises licence. If you would like to introduce the service a major variation would be needed before doing so. It remains to be seen whether some flexibility will be afforded in the current situation.

What are the delivery rules?

Record keeping is a key legal requirement. The Licensing (Scotland) Act 2005 stipulates that two records must be kept in either paper or electronic form:

  • A day book which is kept on the premises; and
  • A delivery book or invoice held by the delivery driver.

Both of these records must be completed before the alcohol is dispatched and detail the following:

  • The quantity of alcohol;
  • A description of the alcohol;
  • The price of the alcohol; and
  • The name and address of the person receiving the delivery.

It is an offence to make a delivery without these records, to deliver to an address not detailed in the records and to refuse to allow a Police Officer of Licensing Standards Officer to examine the records.

Some Boards - Glasgow, for example, have supplemented these provisions with their own “local” premises licence conditions.

When can the delivery be made?

Alcohol may be ordered and dispatched outwith licensed hours except that it cannot be delivered between 12 midnight and 6am. Payment must be taken within licensed hours. Most operators will limit delivery times to 10am to 10pm to avoid potentially problematic late night deliveries.

Who can make a delivery?

The delivery must not be delivered by anyone under 18. While a person under 18 can make a delivery if they work in the premises and their role includes making deliveries this should be avoided as it carries a significant risk to the operator.

Does Challenge 25 apply?

Proof of age must be requested at the point of delivery if the driver has any cause to believe that the person accepting the alcohol is under 25. Where the driver has requested proof of age and it can’t be provided the sale must be refused.

Do delivery personnel need to have received alcohol training?

Technically, the answer to this is “no” but it goes without saying that in the event of an underage sale a licence holder who failed to train drivers would struggle to establish a defence of due diligence. If partnering with an online delivery service or using third party couriers you should always satisfy yourself that their drivers are trained to the same standard as those working within your premises. We recommend that you keep records of their training. 

Who is responsible for the sale?

Licence holders are ultimately response for the sale, even where a third party is involved, so your premises licence and reputation could be at risk if you fail to comply. A recent case in Carlisle where two 13 year-old girls were left hospitalised after receiving an alcohol delivery from licensed premises highlights the risks for both licence holders and the public. The girls made a full recovery but the premises’ ability to sell alcohol was removed following a review and the licence holder could face criminal charges.

Bottom line: it’s important that you treat an alcohol sale made via a delivery service with the same caution as alcohol being sold within a licensed premises.


CORONAVIRUS CRISIS LICENSING BRIEFING #1

Update 18 March 2020

“An existential crisis”

Last week Kate Nicholls, Chief Executive at the British Beer and Pub Association, sounded a warning that hospitality businesses of all sizes - some already on a financial cliff edge - faced annihilation short of robust Government support.

The stark truth is that, in the present, fast-developing emergency, scraps of good news are few and far between.

In this and future newsletters we’ll be monitoring developments as they affect the licensed trade; providing practical, positive advice; and offering answers to a number of key questions.

“Mass gatherings”: Scottish Government guidance

The Scottish Government has “advised” organisers of mass gatherings - events with attendances of 500 or more, indoors or outdoors - to cancel or postpone as a means of reducing potential burdens on the emergency services.

Plainly, the advice (and it’s no more than that) would cover a ticketed event where the numbers exceed the threshold. However, it’s not clear how it affects other the likes of high capacity nightclubs. While operators are being urged to take a risk-assessed approach, with the ink barely dry on the guidance it became clear that any interpretation problems have become pretty much academic. It remains to be seen whether club attendances will stand up, but theatres and cinemas are already going “dark”. Ambassadors Theatre Group – one of the largest UK operators – has “temporarily suspended” all shows, while Cineworld, Vue and Odeon have closed their doors until further notice. And, of course, Scotland and the rest of the UK may well follow other European countries and force the closure of public spaces by means of emergency legislation.

Licensing applications in the doldrums: Practice changes?

There are already indications that Licensing Board meetings are likely to be cancelled. That, of course, could push the launch of new developments into the long grass and delay important changes to operating plans.

It’s just to early to predict how Board resources will cope with this unprecedented situation and whether practices might be adapted.

Certain types of applications require a hearing at a public meetings: new premises licences, non-minor variations and (where there’s a police report) personal licences. In other words, there’s no “delegated powers” arrangement allowing an uncontroversial application to be granted by the Board’s Clerk or by a Board member.

However, at least one Board will not call applicants to a meeting if there are no objections or adverse representations. The application will simply be granted at a meeting unless any unexpected issues arise on the day. On occasions, applicants will negotiate a solution to an objection or representation to avoid being called to a hearing.

Helpful though this approach is, it has no statutory backing. It now remains to be seen whether other Boards will adopt a pragmatic “delegated powers” approach in appropriate circumstances. The Scottish Government has already been called upon to intervene with a proper solution.

The deliveries boom: Adapting business models – and staying legal

Over the coming months demand for home deliveries could swamp retailers’ resources. At least one of the major supermarket chains can’t offer any delivery slots for three weeks.

The likes of Just Eat, Uber Eats and Deliveroo can expect a major business boom. It’s common for restaurants to offer takeaway via these online platforms. Others are now joining in along with pubs starved of customers.

Are there licensing implications? In our view, where a premises licence authorises the sale of alcohol for off-consumption, specific provision for deliveries needn’t be set out in the operating plan. But there’s a catch. Some Licensing Boards have made it clear in their policy statements that they expect a non-minor variation application to cover the activity. That allows the Board to attach conditions, such as the operation of “Challenge 25” at the point of the alcohol delivery.

If you’re now contemplating alcohol deliveries and don’t have “cover” in your licence, speak to one of our team and we’ll steer you in the right direction.

A similar issue arises in relation to food deliveries. Technically, these ought to be included in the operating plan. But, if not, it is just impossible to conceive that an Board would take enforcement action in the current circumstances.

Alcohol deliveries and “self-isolation”

Just Eat has advised its customers that they can now put a note in the ordering page – “Contactless” – which will instruct delivery drivers to leave the order on the doorstep and ring the bell to signal the arrival of the food. Similarly, some of the supermarket companies have put in place “contactless” delivery arrangements.

It may be obvious - but just to be clear - on no account whatsoever should alcohol be left on a customer’s doorstep in any circumstances; and delivery drivers as well as their employers will have to take a view as to any risks associated with face-to-face deliveries to the “self-isolating”.

Extended hours: Avoid any quota

If you operate in an area where the Licensing Board imposes limits on the number of extended hours applications (in Glasgow, the quota is 10 grants per calendar year) you should “surrender” any current grants for events that will be postponed or cancelled. Get in touch with the Board and let them know the event will not take place on the scheduled date.

Check back regularly for further advice and updates.

COVID MSHB 

All information contain within this update is accurate at the time of publication. During these unprecedented times where the situation is constantly changing at pace it is vital that you take expert advice where necessary. Please do not hesitate to contact us if you wish to discuss any issues covered in these updates further. The Hill Brown Licensing Team and the wider team at Miller Samuel Hill Brown remain committed to providing the fullest possible service for the trade at this extremely challenging time.

CORONAVIRUS CRISIS LICENSING BRIEFING #20

Update 1 September 2020

Latest lockdown relaxations

As set out in the latest Scottish Government road map (see our last update) amusement and games facilities (fruit machines, pool tables, darts but not dominoes) are now permitted in hospitality venues on a risk-assessed basis. Further information appears in the latest version of the Government’s sector guidance.

Bingo halls and casinos are also allowed to resume operations and these businesses now fall within the guidance.

Events confusion

The road map reference to the opening up of “certain outdoor live events” led to the expectation that these could take place in licensed outdoor spaces. But according to new, separate guidance for the events sector the types of events it describes (outdoor seated live events and outdoor spaces live events):

“may not take place in general hospitality areas, such as beer gardens, that are currently operating for the serving of food and drink and are subject to a 1 metre physical distancing exemption.”

That of course begged the question as to whether events involving music could take place in large licensed outdoor areas where two-metre distancing was possible.

The answer appears to be “No”. Many premises licences are subject to a condition providing that no amplified music is to be played in, or relayed to, an outdoor area. But even where no such condition exists, the statutory guidance continues to impose a ban on music in hospitality premises, whether outdoors or indoors

As to other forms of outdoor entertainment, the position remains unclear but enforcement authorities appear to be taking the view that the events sector guidance simply does not apply to licensed premises. Operators considering the provision of non-musical entertainment outdoors should take legal advice.

New local authority powers

New Regulations in force from 28 August give local authorities sweeping new powers to address the Coronavirus pandemic "by proportionate means", fulfilling the First Minister's pledge to step up enforcement of the statutory guidance.

Authorities may now issue "directions" imposing "prohibitions, requirements or restrictions" in relation to specified premises, for the purposes of:

  • Closing the premises.
  • Restricting entry to the premises.
  • Securing restrictions in relation to the location of persons on the premises.

In particular, a prohibition, requirement or restriction can relate to:

  • The number of persons on the premises.
  • The purpose for which a person is on the premises.
  • The facilities in the premises.

A direction has to state:

  • The date and time on which the measure comes into effect.
  • The date and time when it will cease to have effect - which must be no later than 21 days after it comes into effect.
  • Details of a right of appeal.

There are also provisions requiring the local authority to take "reasonable steps" to give advance notice of the direction to:

  • A person carrying on business at the premises.
  • If different, the owner or occupier of the premises.

Further provisions relate to events and access to public outdoor spaces.

The directions are enforceable by a designated local authority officer (likely to be an environmental health officer) and the police. A breach will lead to the issue of a fixed penalty notice which could reach £960 for repeated offences. More materially, it's likely that breaches will be reported to Licensing Boards and result in premises licence reviews. While there is a right to appeal, the way in which that might be exercised is subject to uncertainties which trade lawyers have raised with the Scottish Government. 


CORONAVIRUS CRISIS LICENSING BRIEFING #19

Update 21 August 2020

Statutory guidance: new enforcement measures

In our last update we looked at the confused status of the new statutory guidance issued by Scottish Ministers containing, among other measures, the controversial ban of music and television sound.

In her lockdown review yesterday, the First Minister announced a significant development. After acknowledging the efforts of many licensed trade outlets to comply with the guidance she said:

“However, we know that not all hospitality businesses have implemented the guidance effectively, so we intend to strengthen the powers of local authorities to act in such circumstances.

“The Scottish Government has powers… to issue directions in respect of a class of premises – for example, a direction to close all pubs in a particular postcode. We intend to give local authorities the power to act in relation to individual specific premises that are breaching guidelines and risking transmission of the virus. That power would enable local authorities to close such premises or impose such conditions on their remaining open, where they deem that that is necessary for the purpose of preventing, protecting against or controlling the spread of infection.

Regulations to implement this power will be introduced next week and come into effect on 28 August.

We cannot over-emphasise the risks now involved in failing to adhere to the guidance. Hospitality outlets should immediately carry out a meticulous review of their operating practices in the light of its requirements or risk closure.

This page will be updated as soon as the Regulations are published.

Yesterday also saw the publication of the latest lockdown-easing road map, which we’ll also examine in the next update.

Coronavirus Road Map 200820 Grab

CORONAVIRUS CRISIS LICENSING BRIEFING #18

Update 17 August 2020

Statutory guidance

Scottish Ministers have now issued “hospitality sector statutory guidance” which sits within the “main” guidance for the hospitality and tourism sector.

New measures

The statutory component sets out a number of “new measures” taking effect from 14 August and lists “existing measures”.

The new measures are:

1. No background music and no television sound

The Scottish Government believes that music or background sound at any level may lead to raised voices which increase the risk of virus transmission.

At her briefing on 14 August, the First Minister acknowledged that “atmosphere in pubs and restaurants is important” and gave an indication that the matter might be revisited:

“[W]e are willing to work with the sector to see if it might be possible to agree a more nuanced position based on an acceptable decibel level, but as you will gather just from what I have said there that will not be simple and it will take time

2. Noise control: Loud behaviour

Where customers start to shout or sing “this should be challenged”. It’s suggested that clear signage can help to inform customers of expected standards of behaviour.

3. Queue management

There should be no queuing inside premises except where takeaway services are being provided with physical distancing Outdoor queuing should be avoided as far as possible: where it’s necessary for safety reasons, distancing measures should be put in place. In effect, as reflected in “existing measures”, systems should be in place to ensure that all customers are seated.

Status of the statutory guidance

The “empowering” Regulation provides that:

“The Scottish Ministers may issue guidance on measures which should be taken… in order to minimise the risk of the incidence and spread of coronavirus.”

The obligation falling on businesses and service providers is as follows:

“A person responsible for… carrying on a business or providing a service must have regard to guidance issued by the Scottish Ministers relating to its premises, business or service.”

However, despite the use of the word “must”, failure to comply with the Regulation is not an offence nor is it a matter for enforcement by police or a designated local authority officer. A business owner could receive a fixed penalty notice for failing to collect visitor information (see our last update); but no such consequence would flow from providing background music.

It’s a confusing – in fact, unsatisfactory - state of affairs. Clients are understandably asking us about the consequences of departing from the guidance where they feel that can be done in a risk-managed way. For example, would it be reasonable to allow customers to order a drink using an app and collect the order at the bar, provided that the order collection was limited to one customer at a time?

There are clues:

  • According to Ms Sturgeon:

“By making the guidance statutory – so that premises must take account of it – we are aiming to ensure greater compliance with the guidelines.”

  • The following passage appear in the guidance:

“Failure to have regard to its terms is a matter likely to be taken into account should it become necessary to take enforcement action under public health legislation.”

There’s also an emphasis on the central importance of risk assessments:

“Undertaking a full risk assessment and implementing the necessary measures to protect staff, other workers/visitors and the public is not optional and must be carried out by all those operating in the hospitality sector.” [Our emphasis.]

“Businesses should… review their risk assessment against this guidance, making relevant changes where necessary.”

Our Licensing Director examined the importance of risk assessments in a recent Scottish Licensed Trade News article. In our view, although a failure to “have regard to” the statutory guidance has no direct consequences connected to a breach of Regulations, businesses can best protect themselves from public health enforcement action – and ensure the wellbeing of their customers and staff – by taking a conscientious approach to the assessment. Now is the time to review and update in the light of the statutory guidance.

CORONAVIRUS CRISIS LICENSING BRIEFING #17

Update 14 August 2020

Data collection is now mandatory

Further amendments to the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations, in force from today, require businesses to keep a record of customers’ details.

The premises affected are:

Restaurants, cafes, bars, public houses and hotels in which food or drink is sold for consumption on the premises.

The information which must be recorded is as follows:

  • The name and telephone number of one member of each household visiting the premises.
  • The date of their visit and arrival time.
  • A note of the number of any members of that person’s household visiting the premises at the same time.

The required details are to be kept “in a filing system suitable for recording, storing and retrieving” the information and must be retained for at least 21 days from the date of a visit.

The “person responsible for premises” (an expression that includes the owner, proprietor and manager) is under a duty to provide the recorded information to a public health officer “as soon as reasonably practicable but in any event within 24 hours” when requested to do so.

The information so supplied will be used to support NHS Scotland’s Test and Protect programme.

The Scottish Government’s guidance for hospitality and tourism has been updated today to take account of the new Regulations.

Requirements under the Data Protection legislation

Where data is stored electronically (rather than in paper form) businesses must be registered with the Information Commissioner’s Office.

A privacy notice should be made available to customers explaining how their data will be handled.

It must not be used for marketing purposes.

The deletion of the data after the minimum retention period (see above) must be carried out securely.

Our data protection experts are available to provide assistance in this area.

Statutory guidance

The Scottish Government has also published statutory guidance which sits within the guidance for the hospitality and tourism sector. We’ll be looking at its contents in our next update to be published shortly.

CORONAVIRUS CRISIS LICENSING BRIEFING #16

Update 10 August 2020

More restrictions imminent

A spike in Covid-19 cases associated with licensed premises in Aberdeen has resulted in the re-imposition lockdown measures in the City.

All indoor and outdoor hospitality venues required to close from 5pm on 5 August. The Regulations extend only to the Aberdeen City local government area and not wider Aberdeenshire.

Mandatory data collection

The Aberdeen cluster has triggered a move to place customers’ data collection on a mandatory footing. At the moment, the Scottish Government’s sector guidance encourages businesses to collect contact details to support NHS Scotland’s Test and Protect programme. A new Regulation – expected on Friday 14 August - will make the collection a legal requirement.

There’s also at least a possibility that venues will also be obliged to record the time at which customers’ leave the premises if a decision is taken to prevent so-called “bar hopping” – know to be a concern to the First Minister.

New statutory guidance

During her daily briefing on 7 August Mrs Sturgeon also announced that statutory guidance will shortly be published. The foundation has already been put in place. The latest set of amending Regulations make provision for “guidance on measures which should be taken…in order to minimise the risk of the incidence and spread of Coronavirus”.

A persons responsible for a place of worship, carrying on a business or providing a service “must have regard to” the guidance. However, for reasons which are unclear, the requirement falls outwith the enforcement provisions of the Regulations and there is no associated offence.

Other measures

The First Minister also referred to a number of other measures, although it’s not presently known whether these will be embodied in Regulations or form part of the statutory guidance:

  • Customers should pre-book tables.
  • Customers should not be standing together to watch football, dancing or queuing at the bar.
  • There should be no outside queuing. Where this is unavoidable, those in queues should be physically distanced.
  • Background must should be switched off and television sound muted.

Restrictions on the operation of licensed businesses are increasingly complex. If you’re in any doubt about your obligations or need help with any licensing matter, contact our team of licensing experts.


CORONAVIRUS CRISIS LICENSING BRIEFING #15

Update 31 July 2020

Latest lockdown-easing news

The First Minister’s route map update on 30 July brought no new firm reopening dates for the licensed trade.

However, we now have some indicative dates, as follows:

From Monday 24 August:

  • Live outdoor events, with physical distancing, enhanced hygiene and restricted numbers – following guidance.
  • Bingo halls, with physical distancing and following guidance.
  • Amusement arcades and casinos – following guidance, including enhanced hygiene.
  • Snooker and pool halls, indoor bowling – following guidance, including enhanced hygiene.

From Monday 14 September:

  • Live indoor events – following guidance (e.g., with physical distancing and restricted numbers).
  • Other indoor entertainment venues – e.g., theatres, live music and concert venues – following guidance such as physical distancing. This category does not include nightclubs.

There’s no expectation that other changes will be introduced before 11 September.

Guidance “Q&A”

A “Q&A” document aimed at providing further clarity for hospitality businesses following publication of Scottish Government’s sector guidance is now available on the Scottish Licensed Trade Association’s website.


CORONAVIRUS CRISIS LICENSING BRIEFING #14

Update 14 July 2020

Phase 3 underway

The Scottish Government has now published an updated road map confirming the full reopening of hospitality venues and accommodation providers from 15 July, subject to social distancing requirements and guidance.

Coronavirus Road Map Updated 090720

The possibility of operating with a 1-metre social distancing minimum comes into effect on the same date for outdoor and indoor hospitality venues and is addressed in the Government’s update Tourism and Hospitality Sector Guidance. A revised risk assessment template has also been published. The importance of risk assessments is explained in our Getting Good to Go guide. It’s absolutely imperative that businesses now revisit their assessments and revise where necessary. Those planning to operate with 1-metre physical distancing must incorporate the appropriate measures.

The Guidance says:

“It is acknowledged that not all of these measures will be relevant in every setting but that it is for individual businesses to consider where they do relate to their specific business and reflect this in their risk assessments. These are in addition to existing measures required for operating at two metres, which still applies to all other areas covered by the sector guidance where two metres remains the default.”

There’s still no good news for nightclubs and other live events businesses. These will not reopen before 31 July, although the new road map gives a very broad indication that “live events (outdoors)” might be able to resume slightly earlier.

If you require any licensing assistance our experts are always on hand to help.


CORONAVIRUS CRISIS LICENSING BRIEFING #13

Update 6 July 2020

Social distancing

The First Minister has announced a forthcoming relaxation of the 2 metre social distancing requirement in the hospitality sector.

The change is due to take place when indoor areas are permitted to open on 15 July.

Operators will be expected to take a number of “mitigation measures”. An “illustrative” list has been provided to help businesses with their relaunch preparations:

Coronavirus Road Map Updated 020720

Further, detailed guidance will follow.

Announcing the change, Nicola Sturgeon said:

“[W]e will also insist on clear customer information to help inform the judgements we make as individuals about the risks we are prepared to take.

“So, if a business decides to operate at less than 2 metres, they should provide clear signage informing their customers that they are entering a 1 metre zone…

“[I]f infection levels were to rise again, we reserve the right to re-impose a strict 2 metre rule, either nationally or locally, or take other public health measures that are necessary to keep us safe.”

Outdoor areas opening from 6 July must comply with the 2 metre requirement until the reduction comes into effect.

Data collection

The Scottish Government’s tourism and hospitality sector guidance has been updated to include guidance on the collection of customers’ data.

In summary:

  • The gathering of data is intended to support the NHS Test and Protect scheme.
  • Businesses are not legally obliged to collect data but the Scottish Government believes that the measure is “crucial to national efforts to suppress the virus”.
  • Where data is stored electronically (rather than in paper form), businesses must be registered with the Information Commissioner’s Office.
  • A privacy notice should be made available to customers explaining how their data will be handled
  • Data should be securely deleted after a 21-day retention period.
  • It must not be used by a business for marketing purposes.

To view our latest guidance on Collecting Customer Details click here.

Please contact us if you require advice in this area from our GDPR experts.


CORONAVIRUS CRISIS LICENSING BRIEFING #12

Update 30 June 2020

Scottish Government publishes guidance on safe toilet opening

The hospitality and tourism sector guidance referred to in our last update has now been revised with the inclusion of a link to guidance on the safe use of toilets. Our analysis of the sector guidance can be downloaded here and takes account of this new guidance.

Businesses gearing up to provide outdoor drinking facilities from 6 July now have confirmation that that indoor toilets may be made available for customers.

But all businesses planning to resume trading in Phase 2 will now require to ensure that their risk assessments reflect the latest guidance and that pre-reopening checks and any necessary works are carried out accordingly.


CORONAVIRUS CRISIS LICENSING BRIEFING #11

Update 26 June 2020

Easing lockdown: Key road map dates announced

The First Minister has now announced a number of key dates on the path to the re-opening of the hospitality and tourism industry. A revised road map has also been published:

Coronavirus Road Map Grab 240620

Nicola Sturgeon stressed that these are indicative dates for the remainder of Phase 2 and the early part of Phase 3:

  • 3 July: Re-opening of self-contained holiday accommodation – for example holiday cottages and lodges, or caravans where there are no shared services.
  • 6 July: outdoor hospitality such as beer gardens will be permitted to re-open. As we explained in our last update, the Scottish Government’s decision to seek further advice from its Scientific Advisory Group pushed back the original plan to allow reopening from mid-June. That advice is expected on 2 July and will allow guidance to be issue and “any necessary mitigations” put in place.
  • 15 July: pubs and restaurants will open indoors from 15 July - but on a limited basis initially and subject to a number of conditions. Detailed guidance will be issued as soon as possible. On the same date, all holiday accommodation can re-open.

No dates – indicative or otherwise – have been announced in relation to nightclubs, casinos and other “live” entertainment venues. It’s highly unlikely that any changes here will take place before 23 July. Further announcements will be made by the First Minister at next review stage on 9 July.

Other developments

Social distancing

No decision has been taken on the reduction of social distancing from 2 metres to 1 metre (the larger distance being mandatory in premises currently allowed to be open). In her statement to the Scottish Parliament on 24 June, the First Minister said:

“It might be possible to allow relaxation of the 2m physical distancing rule. I will receive that advice next week, and will report on it by 2 July. We will issue guidance as soon as possible after that.”

Guidance

The Scottish Government has issued hospitality and tourism industry sector guidance available here.

We’ve produced a summary of the salient points which you can download here.

Guidance has also been issued to Licensing Boards under Section 142 of the Licensing (Scotland) Act 2005. Because it has statutory backing, Boards must have regard to guidance when carrying out their functions under the Act. It proceeds on the basis that the Scottish Government wishes to assist the licensed trade in its recovery from the economic impact of Covid19:

“Flexibility and pragmatism in decision-making and sensitivity to the wider economic situation should be at the forefront of how a Board decides to operate.”

In relation to occasional licences for outdoor areas, Boards are expected to consider all applications “sensitively” and “with no unnecessary hurdles” put in place.

Data collection 

Licensed businesses will be required to collect customers’ contact data to assist the  NHS Scotland “Test and Protect” scheme. This will raise important data protection issues for the trade and we’ll be providing guidance for our clients when we have more information about the data gathering.


CORONAVIRUS CRISIS LICENSING BRIEFING #10

Update 19 June 2020

Easing lockdown: Outdoor opening delayed

The hospitality industry has suffered an unexpected blow with the delayed reopening of outdoor areas.

The original Scottish Government route map held out the prospect of pubs and restaurants opening “outdoor spaces with physical distancing and increased hygiene routines” following the Phase 2 review (see last update). Although there was no absolute guarantee, trade confidence was high with an expectation that Licensing Boards would be in a position to issue occasional licences starting in the next few days.

But a revised route map published yesterday has pushed the earliest date back to 2 July:

Coronavirus Road Map Grab 180620

In the course of her daily briefing statement, Mrs Sturgeon told the Parliament:

"We may be able to set a date later that is within phase 2, but I have commissioned further advice from our Scientific Advisory Group to inform this decision.

"There is emerging evidence that places such as pubs, restaurants and gyms can be hotspots for transmission.”

She expects the “further advice” in two weeks’ time.

The reference to “hotspots” may well have an adverse impact on customer confidence. Graham Simpson MSP wanted to know why outdoor markets posed an acceptable risk but not beer gardens. (Those markets are permitted to open from 29 June along with outdoor sports centres and a number of other businesses.)

Mrs Sturgeon referred to “breathing patterns” - shouting and singing were more likely to create a virus transmission risk:

 "There is a lot of emerging evidence that, in particular locations, including pubs, whether indoors or outdoors, the risk of transmission could be higher…[W]e are talking about places where people’s pattern of breathing might be changed. If someone is shouting to be heard over music or is singing, they are more likely to inhale and have the virus transmitted that way."

There was also confirmation that the Scottish Government presently remains wedded to social distancing at 2 metres. The First Minister told the chamber that a change would require “rigorous consideration”, although it might be possible to reset the distance and 1 metre or 1.5 metres with “additional mitigations”. The Scottish Licensed Trade Association and other industry bodies have warned that a 2-metre requirement would leave many venues operating at an unviable capacity.

New Scottish Government publications

Two new sets of guidance have been published:

1. Sector guidance for tourism and hospitality businesses covering safe operating procedures including the preparation of risk assessments.

2. Guidance for occasional licences issued to Licensing Boards under Section 142 of the Licensing (Scotland) Act 2005. This encourages Boards to approach occasional licence applications for outdoor areas “with a keen and focused sense on the needs of the on-sale business to seek recovery from the Coronavirus outbreak”. The Scottish Government “expects all applications to be considered sensitively with no unnecessary hurdles having to be overcome prior to the granting of an occasional licence”.

The guidance also makes it clear that Boards will wish to satisfy themselves that applicants can meet the terms of the sector guidance and legal provisions on Coronavirus transmission prevention.


CORONAVIRUS CRISIS LICENSING BRIEFING #9

Update 25 May 2020

Easing lockdown: Scottish Government route map – and its challenges

The Scottish Government has now published a route map setting out a phased removal of lockdown restrictions.

In relation to the country’s hospitality businesses, the steps – in phases 2, 3 and 4 - are more or less in line with trade expectations:

Coronavirus Road Map May 210520

As to timings, there’s speculation the implementation of the changes will coincide with the three-weekly lockdown review cycle. On that basis, we might expect licensed outdoor areas to reopen in the second half of June. However, the Scottish Government has made it clear that certain phases may extend beyond a review period. If so, open air drinking could be pushed back until July; and it may be optimistic to assume that phases 3 will be triggered before August.

Until phase 4 is reached, the licensed trade faces substantial challenges. “Distancing” is plainly central to the Scottish Government’s strategy: the word “distancing” appears around 100 times in the 46-page route map document. But keeping apart customers in pubs, restaurants and cafés will inevitably shrink capacities dramatically. The Scottish Licensed Trade Association [SLTA] estimates that if the “safe” physical distance is set at 2 metres capacities could be slashed by up to 80 per cent.

Land-locked premises will need to remain closed until phase 3 and those with small licensed external areas have no little or no prospect of trading when phase 1 commences.

Where extra outdoor space is available, putting the necessary regulatory permissions – planning, licensing and roads authority consent – will be time consuming and costly. Customers will need access to toilet accommodation, with distancing potentially leading to long queues and the deployment of staff to manage entrances and exits – in fact, it might be necessary to operate a one-way system. And, of course, the vagaries of the Scottish weather could also put a damper on viability.

“Hygiene” is another word used liberally in the route map plan. But as yet there’s no detail on the measures operators will require to adopt. In a Herald article Graham Suttle, the highly-experienced managing director of a Glasgow pub and restaurant group, expressed his concerns that additional overheads will be generated, further eroding viability.

The Scottish Government is now under pressure from trade organisations to remove a palpable existential threat to the country’s hospitality industry. The immediate priorities are the creation of more pavement space to allow for the expansion of outside drinking areas and a slackening of the regulatory processes.

While this update contains few positives, the team at Hill Brown Licensing are always on hand to provide our clients with help and advice – and wherever possible provide solutions to the licensing challenges as we continue to navigate these turbulent waters.


CORONAVIRUS CRISIS LICENSING BRIEFING #8

Update 23 April 2020

Business closures: The Health Protection Regulations

In our Briefing #5, we set out details of the businesses required to close and the conditions under which others could continue to trade.

The position is now enshrined in The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. To date, there have been two sets of amendments to the Regulations. The first corrects two typographical errors while the second:

  • extends the so-called “social distancing” requirements to all business that have been permitted to remain open, including workplaces occupied by non-furloughed staff who are not working remotely; and
  • provides that holiday accommodation providers who have required to close may continue to provide information or services online, by telephone or by post.

The Scottish Government has now produced guidance on social distancing and business closures. It also suggests that all business premises, sites and attractions not required by law to close should close now unless they meet certain criteria.

In the past few weeks, there have been reports on newspaper websites and on social media that police have challenged members of the public who, in an officer’s opinion, have not left home for the purpose of buying essential items. For example, according to Edinburgh Live, an Edinburgh shopper claimed her friend had received a fixed penalty notice “for buying a bottle of Prosecco”.

While these reports are anecdotal, it’s worth making the position regarding alcohol purchases clear.

As a starting point, it’s an offence to leave the place where you are living unless you have a “reasonable excuse”. The Regulations provide that “reasonable excuse” embraces a number of specified activities, including:

“to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for a vulnerable person and supplies for the essential upkeep, maintenance and functioning of the household or the household of a vulnerable person, or to obtain money”

It would appear that police quarrels with alcohol purchases (assuming there is some substance in the reports) proceed on that basis that alcohol is not a “basic necessity” (a view with which the majority of the population would doubtless disagree).

But that’s a position without any legal foundation. The Regulations specifically provide that “Off licences and licensed shops selling alcohol (including breweries)” are permitted to remain open. Restaurants, cafés and pubs are permitted to sell food and alcohol for collection or delivery (alcohol sales being, of course, dependent on authorisation in the licence).

The expression “basic necessities” is not happily chosen. But it simply cannot be the case that premises allowed to remain open are not permitted to serve customers. Putting that in sharp focus, it would be absurd if the Prosecco purchaser had been assailed upon leaving an “off-licence”.

There may not be any hard, indisputable evidence that Police Scotland have, in fact, taken a perverse view on what is, or is not a “basic necessity”. However, it is a matter of record that Northamptonshire Police Chief Constable Nick Adderley announced that his officers might begin to check shoppers’ trolleys to determine whether they contained “legitimate essential items”. Following a predictable backlash, Mr Adderley was obliged to repent of these threats.

Postscript: Scottish Grocer has now published the following response from the Scottish Government on the trade paper’s Twitter feed:

"Convenience stores across Scotland are playing a crucial role in supporting their communities and vulnerable people in particular during the crisis.

“As long as they can adhere to the social distancing guidance, they are able to continue trading throughout the lockdown and there are no restrictions on the types of goods that they can continue to sell.”


CORONAVIRUS CRISIS LICENSING BRIEFING #7

Update 2 April 2020

Licensing emergency measures set to go “live”

The Scottish Parliament has now passed the Coronavirus (Scotland) Bill which will come into force on the day following Royal Assent, expected to be given early next week.

There have been no amendments to the alcohol licensing measures explained in our last update.

The principle provisions in relation to licences issued under the Civic Government (Scotland) Act 1982 - such as public entertainment and late-hours catering licences – are as follows:

  • The Bill extends the time allowed for the consideration of applications by licensing authorities from nine to twelve months.
  • Currently, renewal applications require to be made before the expiry of a licence. “On good cause shown” the authority may accept a late application made up to 28 days after the expiry date. The Bill expands this safety net by stretching the 28 day period to three months.
  • Provision is made for “remote” hearings similar to those being put in place for alcohol applications.

CORONAVIRUS CRISIS LICENSING BRIEFING #6

Update 31 March 2020

Today the Scottish Government published the Cornonavirus (Scotland) Bill which includes various licensing provisions designed to help the trade and Licensing Boards in these very testing times. The Bill will be laid before Parliament tomorrow with the expectation that it pass all three stages the same day. The Government tells licensing stakeholders: "If something cannot be done due to coronavirus, then the Scot Government wants the licensing system to be able to reflect that, with no loss of rights arising, that is what licensing provisions... intended to achieve"

The headline changes are:

Personal Licences

  • Personal Licenceholders have up until the day before their expiry date to renew their licence (an extension of 3 months) if it couldn’t be done in time due to reason associated with coronavirus.
  • Licensing Boards have an additional 6 months to determine the renewal from the expiry date.
  • Licensing Boards are given discretion to extend personal licence refresher training deadlines for individuals unable to comply and can give additional extensions if required.

Premises Manager changes

  • 7 day period within which notice has to be provided to the Licensing Board when a manager leaves/becomes incapable of acting, is extended to 28 days.
  • Licenceholder then given 3 months to nominate a new premises manager or a longer period if this can’t be complied with and a request for an extension is made.

Takeaways – New Mandatory Condition inserted to clarify position on takeaways

  • If food is sold on the premises but the operating plan contained in the licence does not contain an express term to the effect that food may be taken away, or delivered, from the premises for consumption off the premises, a term to that effect is to be implied into the operating plan.

Hearings

  • Provision made for Licensing Board hearings to held using remote technology or for submissions to be made in writing. This includes both phone and video conferencing if the Board have the facilities. Aberdeenshire have already introduced this facility and it looks like all Boards will now follow. Parallel provisions also proposed in relation to hearings under the 1982 Act (more to follow).
  • Timescales for holding hearings also extended if it can’t be met for reasons associated with Coronavirus

Extended Hours Applications

  • Objection periods for LSOs and Police Scotland extended.

Provisional Premises Licence Periods

  • 4 year period extended by a further 6 months if request made and is required due to reasons associated with Coronovirus.

Transfers

  • In certain circumstances - the death, incapacity, insolvency or dissolution of the premises licence holder - a transfer application must be made within 28 days. Otherwise the licence ceases to have effect. The Bill allows Boards to accept an application after the end of that period if it can't be lodged on time for a reason related to coronavirus.
  • The premises licence will not cease to have effect provided an application for transfer has been lodged.

Many of the provisions require a ‘reason relating to Coronavirus’ so it is hoped and expected that Licensing Boards will interpret this widely.

The Bill also makes changes to the Civic Government (Scotland) Act 1982 in particular in relation to expiry dates and renewals. We will provide an update on this shortly.

All of these legislative changes if approved will expire after 6 months but they may be extended for two further periods of six months, giving a maximum duration of 18 months. 

The full Bill is available here https://www.parliament.scot/parliamentarybusiness/Bills/114929.aspx


CORONAVIRUS CRISIS LICENSING BRIEFING #5

Update 27 March 2020

Business closures latest

Delivery and takeaway services

The Scottish Government has now clarified the position in relation to licensed premises operating delivery and takeaway services but which have been obliged to close for normal trading.

Restaurants and cafés can remain operational for “food delivery and takeaway”. “Public houses” are in a similar position. Although no exceptions are listed for “bars”, in our view they fall into the same category as public houses in relation to deliveries and takeaways where they’re in a position to supply food.

“Food” includes alcohol but see our post dated 19 March in relation to deliveries.

There is nothing to prevent customers who are collecting orders from entering these premises but they must not do so for any other purpose.

Businesses should operate “social distancing” arrangements by:

  • ensuring a distance of at least two metres between customers and shop assistants, with equivalent measures to protect staff consistent with “fair work principles”;
  • letting people into the premises only in small groups to prevent spaces being crowded; and
  • taking queue control measures consistent with social distancing advice outside of the premises.

Shops licensed for off-sales

As part of a number of retail closure exceptions (e.g., supermarkets and corner shops), the following may continue to trade: “Off-licences and licensed shops selling alcohol, including those within breweries, newsagents, post offices and banks”.

Hotels and other accommodation providers

The Scottish Government’s latest position is as follows:

Hotels: Where people are resident on an interim basis while their primary residence is unavailable, they may continue to do so. Key workers can continue to stay in hotels “or similar”.

Hotels, hostels, B&B accommodation, campsites and boarding houses for commercial use:  Key workers, permanent residents, and non-UK residents who are presently unable to travel to their country of residence can continue to stay in hotels or similar where required. Those who are unable to move into a new home due to the current restrictions  can also stay at hotels. Where hotels, hostels and B&B establishment are providing rooms to support homeless and other vulnerable people, such as those who cannot safely stay in their home, through arrangements with local authorities and other public bodies, they may remain open. Hotels are permitted to host blood donation sessions.

Caravan parks/sites for commercial use: Where people live permanently in caravan parks or are staying in caravan parks as “interim abodes” where their primary residence is not available, they may continue to do so.

  • It’s important to note that these are exceptions to the overall closure position so that, for example, hotel bars, restaurants and spa facilities must remain shut.

The above supersedes parts of the announcement made by the First Minister on 23 March (as below).

Workplace canteens

Where there are no practical alternatives, workplace canteens can remain open to provide staff food and/or provide a space for breaks. However, where possible, workers should be encouraged to bring their own food and distributors should move to takeaway.

Measures should be taken to minimise the number of people in the canteen at any one time by, for example, setting up a rota.

Cinemas, theatres and concert halls

Live streaming of a performance by a small group “could” be permissible with social distancing observed. Blood donation sessions are permitted.

No exceptions

No closure exemptions have been allowed for:

  • bingo halls, casinos and betting shops;
  • nightclubs;
  • premises used for assembly and leisure purposes - e.g, bowling alleys and fitness studios.

CORONAVIRUS CRISIS LICENSING BRIEFING #4

Update 23 March 2020

Hotels told: Don’t accept guests

Following the closure of pubs, restaurants and cafés, the position regarding hotels and B&Bs generated considerable uncertainty. It seemed that accommodation could still be provided, provided bars, restaurants and communal eating areas (including staff canteens) were closed.

The First Minister has announced today that accommodation providers “should not be accepting visitors”. (This includes providers of self-catering accommodation.) However, they should continue to provide staff with accommodation and be ready to provide an essential service in this crisis if required.

We expect that this move will receive full legal backing throughout a package of emergency legislation measures later this week.

On 21 March the Westminster Government took powers in England and Wales to ensure that restaurants; cafés, staff canteens; bars; public houses; bars, restaurants and dining rooms in hotels/clubs; cinemas; nightclubs; theatres; bingo halls; concert halls; museums/galleries; casinos; betting shops; spas/parlours closed or remained closed.

This measure - the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 - was not interpreted as preventing the provision of accommodation, providing that food and beverages were only supplied by room service.

Police Scotland issue closure orders

Scotland’s Police Force has promised robust action against pubs who have defied the instruction to close.

Emergency closure orders will be issued under Section 97 of the Licensing (Scotland) Act 2005. The closure period cannot exceed 24 hours but Section 99 allows for extensions. These orders do not require the sanction of the Licensing Board and can be issued by a police officer of or above the rank of inspector. They proceed on the basis of public safety or disorder on, or in the vicinity of, licensed premises.

According to Deputy Chief Constable Malcolm Graham, the level of compliance has been “exceptionally high” and that “only a small number” of public houses have declared an intention to remain open until legally obliged to shut down.

Where an emergency closure has been issued the premises concerned will be reported to the Licensing Board for further action.

As in the case of hotels and other venues (see above) emergency legislation is expected to fortify police powers within the next few days.


CORONAVIRUS CRISIS LICENSING BRIEFING #3

Update 23 March 2020

During this extremely challenging time for all in the licensed trade where many staff lay offs are expected, you can find practical advice from our employment law team at the following links:

Information on new coronavirus staff retention scheme - https://www.mshblegal.com/news/hr-brief-the-coronavirus-job-retention-scheme.html

Tips for employers on home working - https://www.mshblegal.com/news/homeworking.html

What employers need to know during the pandemic - https://www.mshblegal.com/news/coronavirus-what-should-employers-know.html

If you are looking to take advantage of the Government scheme and put staff on furlough we can provide you with a step by step guide and documentation. Please email This email address is being protected from spambots. You need JavaScript enabled to view it. if this would be helpful.


CORONAVIRUS CRISIS LICENSING BRIEFING #2

Update 19 March 2020

Alcohol deliveries: Further guidance

It’s clear that online deliveries are set to boom during the emergency and we’re now providing more detail what businesses must do to stay legal.

What does your premises licence have to say before you offer a delivery service?

As we mentioned in the last bulletin, in our view a premises licence operating plan . doesn’t need to include “alcohol deliveries” as an activity. So, provided that the operating plan includes off-sales, the right to deliver is implicit. That view is not shared by every Licensing Board. Some, including Highland, West Dunbartonshire, Scottish Borders, Falkirk and Argyll & Bute require you to state if you are offering a delivery service when applying for a premises licence. If you would like to introduce the service a major variation would be needed before doing so. It remains to be seen whether some flexibility will be afforded in the current situation.

What are the delivery rules?

Record keeping is a key legal requirement. The Licensing (Scotland) Act 2005 stipulates that two records must be kept in either paper or electronic form:

  • A day book which is kept on the premises; and
  • A delivery book or invoice held by the delivery driver.

Both of these records must be completed before the alcohol is dispatched and detail the following:

  • The quantity of alcohol;
  • A description of the alcohol;
  • The price of the alcohol; and
  • The name and address of the person receiving the delivery.

It is an offence to make a delivery without these records, to deliver to an address not detailed in the records and to refuse to allow a Police Officer of Licensing Standards Officer to examine the records.

Some Boards - Glasgow, for example, have supplemented these provisions with their own “local” premises licence conditions.

When can the delivery be made?

Alcohol may be ordered and dispatched outwith licensed hours except that it cannot be delivered between 12 midnight and 6am. Payment must be taken within licensed hours. Most operators will limit delivery times to 10am to 10pm to avoid potentially problematic late night deliveries.

Who can make a delivery?

The delivery must not be delivered by anyone under 18. While a person under 18 can make a delivery if they work in the premises and their role includes making deliveries this should be avoided as it carries a significant risk to the operator.

Does Challenge 25 apply?

Proof of age must be requested at the point of delivery if the driver has any cause to believe that the person accepting the alcohol is under 25. Where the driver has requested proof of age and it can’t be provided the sale must be refused.

Do delivery personnel need to have received alcohol training?

Technically, the answer to this is “no” but it goes without saying that in the event of an underage sale a licence holder who failed to train drivers would struggle to establish a defence of due diligence. If partnering with an online delivery service or using third party couriers you should always satisfy yourself that their drivers are trained to the same standard as those working within your premises. We recommend that you keep records of their training. 

Who is responsible for the sale?

Licence holders are ultimately response for the sale, even where a third party is involved, so your premises licence and reputation could be at risk if you fail to comply. A recent case in Carlisle where two 13 year-old girls were left hospitalised after receiving an alcohol delivery from licensed premises highlights the risks for both licence holders and the public. The girls made a full recovery but the premises’ ability to sell alcohol was removed following a review and the licence holder could face criminal charges.

Bottom line: it’s important that you treat an alcohol sale made via a delivery service with the same caution as alcohol being sold within a licensed premises.


CORONAVIRUS CRISIS LICENSING BRIEFING #1

Update 18 March 2020

“An existential crisis”

Last week Kate Nicholls, Chief Executive at the British Beer and Pub Association, sounded a warning that hospitality businesses of all sizes - some already on a financial cliff edge - faced annihilation short of robust Government support.

The stark truth is that, in the present, fast-developing emergency, scraps of good news are few and far between.

In this and future newsletters we’ll be monitoring developments as they affect the licensed trade; providing practical, positive advice; and offering answers to a number of key questions.

“Mass gatherings”: Scottish Government guidance

The Scottish Government has “advised” organisers of mass gatherings - events with attendances of 500 or more, indoors or outdoors - to cancel or postpone as a means of reducing potential burdens on the emergency services.

Plainly, the advice (and it’s no more than that) would cover a ticketed event where the numbers exceed the threshold. However, it’s not clear how it affects other the likes of high capacity nightclubs. While operators are being urged to take a risk-assessed approach, with the ink barely dry on the guidance it became clear that any interpretation problems have become pretty much academic. It remains to be seen whether club attendances will stand up, but theatres and cinemas are already going “dark”. Ambassadors Theatre Group – one of the largest UK operators – has “temporarily suspended” all shows, while Cineworld, Vue and Odeon have closed their doors until further notice. And, of course, Scotland and the rest of the UK may well follow other European countries and force the closure of public spaces by means of emergency legislation.

Licensing applications in the doldrums: Practice changes?

There are already indications that Licensing Board meetings are likely to be cancelled. That, of course, could push the launch of new developments into the long grass and delay important changes to operating plans.

It’s just to early to predict how Board resources will cope with this unprecedented situation and whether practices might be adapted.

Certain types of applications require a hearing at a public meetings: new premises licences, non-minor variations and (where there’s a police report) personal licences. In other words, there’s no “delegated powers” arrangement allowing an uncontroversial application to be granted by the Board’s Clerk or by a Board member.

However, at least one Board will not call applicants to a meeting if there are no objections or adverse representations. The application will simply be granted at a meeting unless any unexpected issues arise on the day. On occasions, applicants will negotiate a solution to an objection or representation to avoid being called to a hearing.

Helpful though this approach is, it has no statutory backing. It now remains to be seen whether other Boards will adopt a pragmatic “delegated powers” approach in appropriate circumstances. The Scottish Government has already been called upon to intervene with a proper solution.

The deliveries boom: Adapting business models – and staying legal

Over the coming months demand for home deliveries could swamp retailers’ resources. At least one of the major supermarket chains can’t offer any delivery slots for three weeks.

The likes of Just Eat, Uber Eats and Deliveroo can expect a major business boom. It’s common for restaurants to offer takeaway via these online platforms. Others are now joining in along with pubs starved of customers.

Are there licensing implications? In our view, where a premises licence authorises the sale of alcohol for off-consumption, specific provision for deliveries needn’t be set out in the operating plan. But there’s a catch. Some Licensing Boards have made it clear in their policy statements that they expect a non-minor variation application to cover the activity. That allows the Board to attach conditions, such as the operation of “Challenge 25” at the point of the alcohol delivery.

If you’re now contemplating alcohol deliveries and don’t have “cover” in your licence, speak to one of our team and we’ll steer you in the right direction.

A similar issue arises in relation to food deliveries. Technically, these ought to be included in the operating plan. But, if not, it is just impossible to conceive that an Board would take enforcement action in the current circumstances.

Alcohol deliveries and “self-isolation”

Just Eat has advised its customers that they can now put a note in the ordering page – “Contactless” – which will instruct delivery drivers to leave the order on the doorstep and ring the bell to signal the arrival of the food. Similarly, some of the supermarket companies have put in place “contactless” delivery arrangements.

It may be obvious - but just to be clear - on no account whatsoever should alcohol be left on a customer’s doorstep in any circumstances; and delivery drivers as well as their employers will have to take a view as to any risks associated with face-to-face deliveries to the “self-isolating”.

Extended hours: Avoid any quota

If you operate in an area where the Licensing Board imposes limits on the number of extended hours applications (in Glasgow, the quota is 10 grants per calendar year) you should “surrender” any current grants for events that will be postponed or cancelled. Get in touch with the Board and let them know the event will not take place on the scheduled date.

Check back regularly for further advice and updates.

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