Circuit breaker is more like a bomb blast

A raft of extremely complicated regulations have been made worse by overly-aggressive local authorities










By Jack Cummins

IT may be cutely called a “circuit breaker” but a ban on the sale of alcohol in almost every hospitality setting is more accurately described as the equivalent of dropping an atomic bomb on thousands of businesses across the country.

Twenty-four pages of regulations set out in meticulous, micro-managing detail a raft of restrictions described as “cataclysmic”, “catastrophic”, “a knockout blow” and “the last straw”. And while the tourniquet has been applied until 6am on October 26, it’s a fair bet that the curbs will either be extended or continued with some modifications for a further period. The very best that may be hoped for is a return to the 10pm shutdown which, of course, coupled with the music ban, had already left the trade badly wounded.

When the shutters came down at 6pm last Friday, the status of ‘cafés’ in the central belt – “the protected area”  – became the major source of confusion. In the lead up to the circuit breaker Scottish Government communications indicated that “Cafés (unlicensed premises) which don’t have an alcohol licence will be able to open between 6am and 6pm”.

Then, in a 360-degree u-turn, an exception was created for cafés holding an alcohol licence: to be precise, the regulations provide that cafés do not fall within the definition of “licensed premises”. For the purpose of the regulations, a “café” is “an establishment whose primary business activity, in the ordinary course of its business, is the sale of non-alcoholic drinks, snacks or light meals, which may be consumed on the premises”.

But despite the definition, with the regulations going live around lunchtime on the day they came into effect, countless businesses were left in a state of uncertainty.

And, adding to the misery, one local authority immediately rushed out an email to licensed businesses in its area threatening hellfire and damnation – closure orders, licence reviews and prosecution – for those who didn’t toe the line. Disappointingly, the tone was unnecessarily aggressive: “We will not be entering into individual debate with premises as to whether or not they are a café, or giving permission to operate as same.”

Restaurant operators are being warned that they don’t have the option of changing the business model by scaling down the food offer and trading in the style of a café. Those with a limited alcohol offer accounting for a very small percentage of revenue – but still categorised as a restaurant – have been contemplating the surrender of their licence. Such a step is not to be taken without the benefit of legal advice; applying for a new licence is a lengthy and costly process.

Here’s a broad summary of the settings in which alcohol may be sold and/or consumed while the measures are in force:

  • Premises airside at an airport can operate normally and without any time restrictions.
  • Outdoor areas outwith the protected area may trade with the provision of alcohol between 6am and 10pm subject to the provisions of the premises licence.
  • Takeaway and delivery services may continue, subject to licensing restrictions.
  • Hotels may supply residents with alcohol by way of room service; it can’t be consumed in any other part of the hotel.
  • Hotel residents may consume alcohol bought elsewhere in their rooms.
  • Alcohol may be served in connection with marriage ceremonies and civil partnership registrations which have already been arranged, as well as funerals.

That list comes with an important caveat: the new regulations are an extremely complicated construct and anyone unsure of how their business is permitted to operate absolutely must take expert legal advice.

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

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Jack Cummins is unable to enter into personal correspondence on readers’ questions. The advice offered in SLTN is published for information only. No responsibility for loss occasioned by persons acting or refraining from action as a result of material contained in SLTN can be accepted by the author or publisher.