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Too much guidance?

scottblair

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:

  • 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.

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