Scottish Hospitality Industry Threatens Legal Action Against The Government

Five of Scotland’s Hospitality Industry bodies have taken the unprecedented step of commencing the legal process against restrictions imposed on the licensed trade by the Scottish Government.

The Scottish Beer & Pub Association, The Scottish Licensed Trade Association, UKHospitality (Scotland), the Scottish Hospitality Group and the Night Time Industries Association Scotland have joined forces to save not just the small to medium independent business, but also the large corporate multi-operators that operate within Scotland’s Hospitality Industry.  All these operators are under intense pressure and are fighting for the very survival of their businesses and for the jobs that they provide.

The Scottish Government was served with the pre action letter yesterday morning. It follows the trade bodies receiving an Opinion by prominent legal expert Aidan O’Neill QC advising that a Judicial Review would be warranted.   The letter requests a response to legal challenges from the Scottish Government by 4pm on Wednesday 28th October 2020, failing which matters could move forward with a Petition for Judicial Review.

In a Joint Statement the group’s spokesperson, Paul Waterson said:-

It is with regret that we now commence with this first stage in the legal process. We understand and entirely support the goal of suppressing the virus, but our sector is at breaking-point. 
Despite having more mitigation measures than other sectors and the vast majority of operators going above-and-beyond in ensuring customer safety, our sector has been repeatedly targeted without consultation and without the evidence. 
Anecdotal evidence is not the way to go about making government decisions and the sector should not be used as a balance to uncontrollable risks in other far less regulated and un-monitored sectors.  
Evidence just published in Northern Ireland clearly states that the closure of hospitality only has an “0.1-0.2 impact on the R number” and that the lockdown there has been brought about to ensure behavioural and policy compliance in other areas. Effectively confirming that the hospitality industry has been held up as the sacrificial lamb.
The economic support offered to premises doesn’t come close to compensating the businesses and means jobs are being lost and livelihoods ruined.  Any measures must be proportionate and be backed up by evidence, we do not believe that is the case here. 
The industry simply cannot endure the extension of the current restriction, further restrictive measures expected from the 2nd of November or get into a stop start situation. We are now facing the end of our industry as we know it. 
The battle is now on to save the hospitality sector.

During the course of yesterday morning, a letter was sent by solicitors TLT to the Scottish Ministers, challenging the legal basis of recent restrictive legislation relating to the hospitality sector passed by the Scottish Parliament. The letter follows receipt of an Opinion from Aidan O’Neill QC on the merits of proceeding with Judicial Review of the legislation and the actings of the Scottish Government.

The letter itself sets out the legal basis for proposed Judicial Review.  It makes specific calls on the Scottish Government which include withdrawal of current regulations; entering into meaningful consultation with the sector; and cessation of reliance on certain emergency procedures which avoid any prior Parliamentary involvement or discussion.

Further, the letter calls on the Scottish Government to provide statements of reasons behind the Health Protection (Coronavirus) (Restrictions and Requirements) (Additional

Temporary Measures) (Scotland) Regulations 2020 and the Health Protection (Coronavirus)

(Restrictions and Requirements) (Scotland) Regulations 2020 and for interim suspension of these.

The much-needed evidence and impact assessments have also been called for which relate to the impact of the measures on the spread of the virus, jobs and business viability for the sector and include the behaviour of patrons within venues.

While we all recognise the very real challenge that Covid presents, the process of law making that we have seen over the last two months has given us cause for concern. There is a lack of accountability of the Scottish Government to the Scottish Parliament and the people whom they serve. The restrictions impinge on fundamental rights of all the people of Scotland whether they work in or visit hospitality premises.  We are concerned that the Regulations are not proportionate and are not evidence based.

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