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Wed 11th Aug 2021 - Legal Briefing

The stumble towards freedom by Chris Grunert

If this were a normal year, we would now be at the height of the holiday season. A mid-year opportunity to rest and recuperate, dreaming of the warm sandy beaches and cocktails abroad. However, as we are all aware by now, we are living in times that are anything but normal. The hospitality industry is certainly in need of a well-deserved break from the stresses of work this year. For many in the trade, the strain is not the result of hectic trading. Instead, the pressure has developed from the burden of steering businesses through the most turbulent of conditions and doing the absolute best to keep the lights on for those workers in the limbo of furlough. Up until recently, venues such as nightclubs had been ordered to remain closed since March 2020 without any respite. The sector is emotionally drained but eager to make this summer of staycations and “supporting local” worth it. We hope you get the chance to have the break you all deserve, although many of us will need to pack a waterproof jacket instead of factor 50.

On 19 July, England took the fourth step into what was dubbed “Freedom Day” in the press. On the same day, the prime minister raised the possibility of future restrictions and counselled the nation to remain vigilant because the battle against covid was not yet won. In my opinion, this turned what was hoped to be a confident stride towards “normality” into an unfortunate stumble. Was it necessary for the government to throw such uncertainty onto the nightclub sector on the day of its relaunch? Since reopening, the battle against covid continues to improve and the changes to the self-isolation rules have been announced, which will be implemented on 16 August. This, coupled with adjustments to the NHS Test and Trace app and the number of contacts it “pings”, means this will, hopefully, bring an end to the staffing crises impacting so many businesses across the country.

One of the more successful and popular covid measures designed to assist venues with operating outside was the streamlined pavement licence procedures of the Business and Planning Act 2020. Fees and bureaucracy were also slashed, allowing the exciting alfresco “cafe culture” that was once dreamed of during the creation of the Licensing Act 2003 to reach its full potential. We are thrilled to see the government has now passed regulations that will partially extend the scheme until September 2022.

Despite this industry win, the relaxation of off-sales (granting an off-sales licence to premises that did not already have one) is yet to be approved for an extension. This element has been bundled together with a proposal to increase the number of temporary event notices for 2022-23 from 15 to 20. These changes will be considered by a parliamentary committee on 8 September – only 22 days before the current automatic off-sales provisions will lapse. From a legal perspective, it is cutting it very close. Even after this initial proposal, there will still be several parliamentary hurdles to clear before these adjustments would be set in stone.

The next step for nightclubs includes the proposals brought forward by the prime minister on 19 July. This will require clubbers to provide evidence of double vaccination or genuine medical exemption in order to gain entry from an unspecified date at the end of September. Proof of a negative test will no longer be sufficient. The prime minister told a press conference on Monday (9 August): “I don’t want to have to close nightclubs again as they have elsewhere. But it does mean nightclubs need to do the socially responsible thing.” This has been received with great dismay from the industry. Even though most young people will have had the opportunity to get their second jabs, delays because of covid infections (because you must wait a month after testing positive) or personal reasons means many will still miss out. Nightclubs have easily been one of the most affected industries during the pandemic and have remained largely inactive since the first covid legislation in March 2020. Now it feels like this sector is being penalised once more before it has even had the chance to get going properly again.

The alternative to the enforcement of the “covid passport” may be the return of table service and social distancing. For many clubs, this would result in further periods of closure – a clear example of a “Hobson’s choice”. 

In the latest revision of the restrictions, the following premises were deemed to be “restricted businesses” and, therefore, required to remain fully closed until 19 July:

a) Nightclubs

b) Dance halls

c) Discotheques

d) Any other venue (not falling within points (a), (b) or (c)) that:
a. Opens at night
b. Has a dance floor or other space for dancing by members of the public and, for these purposes, members of the venue in question are to be considered members of the public, and
c. Provides music, whether live or recorded, for dancing

There is no legal definition in the Licensing Act 2003 to help formally categorise any of these venues, and their premises licence is largely no different to your local. A premises that is none of these but “opens at night” and provides space for dancing was also caught up in the restrictions. During this time, some premises chose to avoid closure by changing their approach altogether. Many nightclubs placed tables and chairs on their dance floors and turned down the music. These changes, although necessary at the time, completely changed customers’ experiences to something a little more watered down. Many businesses did not find this financially viable in the long run but chose to try to do their best to generate some revenue within the restrictions.

If the proposed entry requirements are imposed upon these types of venues, how many late-night businesses will adjust their operating tactics to avoid the new bureaucracy? How will customers prove their entry status? As with face masks, those with an exemption cannot be required to prove this by an establishment. This was a necessary decision to protect against discrimination but creates a clear conflict that businesses must navigate alone. If a new scheme will include exemptions, as it reasonably should, lessons must be learnt and clear guidance must be provided.

There is an endless amount of queries and clarification requests from the industry. The current system of proof of vaccination feels unnecessarily complicated and confusing. Many members of the public do not know the difference between the NHS covid-19 app and the NHS app. Which one are you encouraged to use to “check in” to venues for Test and Trace purposes and through which one can you access your vaccination record? For whatever reason, it is a different answer for each question. I dread to imagine staff trying to process this on the doors.

As we move closer to this new set of customer requirements, we urge government to do the following:

• Limit these restrictions in terms of their duration and provide substantial evidence that supports the need for their introduction.

• Draft regulations and guidance should be published as soon as possible to allow businesses to prepare and inform their customers. These new rules should be adequately consulted on and assessed by those working in the industry. Too often during the past 15 months, guidance and regulations have been published at the very last moment and the sector is the one that deals with the consequences of it. 

• Focus on a solution that allows customers to verify their vaccination or exemption status quickly and efficiently upon entry to venues. The public must also be educated on what will be required so that expectations are already formalised. 
Christopher Grunert is a partner at John Gaunt & Partners
John Gaunt & Partners is a Propel BeatTheVirus campaign member


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