Scottish hospitality industry to focus on forcing ministers to provide evidence for restrictions in legal action

Scotland's hospitality businesses plan to focus on the unfairness of the 10pm curfew and the lack of evidence provided by SNP ministers to justify blanket closures in a bid to win a quick victory in overturning restrictions.

The industry has taken the unprecedented step of launching legal action against the Scottish Government after they received a legal opinion by the prominent QC Aidan O’Neill, advising them a judicial review would be warranted.

Claiming that pubs and restaurants have been forced to “fight for their very survival”, the move came the day after Nicola Sturgeon extended what she said would be a temporary 16-day shutdown of Central Belt hospitality businesses.

Many have accused the Government of imposing the restrictions without publishing clear evidence that proves hospitality businesses are driving Covid-19 case numbers, raising questions over how proportionate the measures are. 

Caroline Loudon, partner at law firm TLT which is representing the trade bodies, said the action aims to challenge “the legal basis of recent restrictive regulations imposed on the hospitality sector”.

“Any regulations imposed on the sector should be proportionate and evidence-based, and statements of reason for current restrictive regulations have been called for,” she told The Daily Telegraph.

The letter sent by the group demands a response from the Government by 4pm next Wednesday, with the trade bodies warning that they are prepared to move forward with a petition for judicial review if they do not receive a satisfactory answer.

Paul Waterson, the group’s spokesperson, said that the focus of the action is on forcing the Government to provide evidence that justifies the draconian restrictions on hospitality, including the controversial 10pm curfew.

It is understood that industry leaders had previously “impressed upon the Government” that there should have been a curfew on the “movement of people” rather than a blanket closure, meaning that customers wouldn’t be able to move between pubs after 10pm.

“The 10pm curfew has done no good whatsoever,” said Mr Waterson. “You don’t mind doing something if it’s going to work, but it doesn’t really work. That’s one of our main gripes.”

The curfew has also proven itself to be contentious south of the border, with Sadiq Khan calling for the measure to be “immediately scrapped” amid experts admitting that it is unlikely to make a difference to transmission rates.

But the main goal of the action is to force the Scottish Government to be “more transparent” in its decision-making process, Mr Waterson said.

“We are arguing that the processes that have been used to reach these decisions are wrong. Not so much the restrictions themselves but the processes they are using are outwith the protocols and rules and regulations that they have to work to,” he said. “Through that should come the information we’re desperate to get which justifies what they’re doing.”

Although the First Minister has insisted that the restrictions are “essential and proportionate”, Professor Hugh Pennington, professor of bacteriology at Aberdeen University, said that he can understand why the industry had taken action.

“I can see where they are coming from. I can see why they want to see more data,” he said. “I think those of us who are not involved in the Government machine would like to see that data.

“I’ve been quite frustrated by the low level of information about outbreaks and the evidence that is being used.”

The judicial review, which would be a “costly and complicated” process, would be about the decision itself to impose restrictions on hospitality venues and how the Government has arrived at them - which could result in the court quashing the restrictions altogether.

“There is a legal point here - it’s not a frivolous action,” said Dr Nick McKerrell, an expert in licensing law at Glasgow Caledonian University.

“The interesting thing will be to see what evidence the Scottish Government proposes. A lot of the Covid laws haven’t been thoroughly examined in court,” he added.

Hospitality businesses will be invited to discuss a new five-tier framework with Scottish Government officials over the weekend, with Ms Sturgeon saying she is open to make changes before it is put to a Holyrood vote.

Meanwhile, Glasgow Licensing Board has asked the Scottish Government "to allow licensed premises that serve meals to the public to remain open, even without serving alcohol". A letter from the cross-party group at Glasgow City Council, which has taken a hardline approach to enforcing rules, also suggests removing the definition of a "cafe" from current regulations to allow more venues to open while still protecting public health.

A Scottish Government spokeswoman said: "Scotland's hospitality industry has faced unimaginable challenges this year and we have worked hard to provide critical support to the industry.

"No-one wants the restrictions in place a moment longer than needed and they are kept under review.

"We will consider all the feedback we have received and will be discussing the proposed protections in the five-level framework outlined by the First Minister with the hospitality sector ahead of it being debated on Tuesday."