Why it is vital that we #CancelTheCurfew - Kuits Solicitors Manchester

Why it is vital that we #CancelTheCurfew

Why it is vital that we #CancelTheCurfew

30th September 2020 - Published by

Licensing associate Rebecca Ingram provides her impassioned view and legal opinion on why the government need to #CancelTheCurfew on the hospitality sector.

You don’t have to work in the hospitality industry to know that it’s been a tough six months. Whilst the impacts of the Covid-19 pandemic have been wide-ranging, and felt in nearly every sector, it is undeniable that our bars, restaurants, pubs, clubs and event venues have taken a fairly unique battering during lockdown.

Many premises were given no option but to close entirely. Some managed to cobble together delivery or takeaway services, but for those that did, the universal experience was that this assisted them only in reducing the money they lost, rather than allowing any profit to be made. Yet the industry is a vibrant, creative and resilient one, and in spite of the various challenges it faced, it re-opened with a smile on its face on 4th July, excited to welcome back its customers.

The smile was there despite the government’s preparation for and guidance on that re-opening leaving much to be desired – officially confirmed with a little over a week’s notice, leaving the industry scrabbling around with little time to stock up, implement Covid-19 secure measures, call staff back from furlough and do everything else necessary to prepare for opening their doors. The smile was there despite the regulations detailing the legal mechanisms for the re-opening, including the time from which closure requirements would be lifted, being announced in the late afternoon of the 3rd July. The smile was there despite the fact that the legislation that was desperately needed to relax sales of alcohol for consumption off the premises and streamline the Highways Act licensing process was still making its way through Parliament at the very time that those doors re-opened, not to be passed until late July.

It was there despite the fact that, on re-opening, central government shifted responsibility and instead of legislating for the industry and told them to rely on their own risk assessments. In fact, the industry, by and large, approached this task with enthusiasm. They are, after all, well used to assessing risk and keeping customers safe, as is required by the public safety licensing objective (and various environmental health and health and safety legislation).

Therefore, operators invested significant amounts of time and money in ensuring that their premises were Covid-19 secure. They moved tables; they bought screens; they introduced apps; they applied for pavement licences and developed new outside areas; they provided staff with PPE; they re-designed menus; they updated and amended terms and conditions and booking processes; they plotted out one way systems and filled walls and floors with signage and markers. More often than not, they did so without complaint, as they worked to claw back what they had lost and keep their staff in jobs.

The impact of the 10pm curfew on the leisure trade

The curfew introduced last week though is, in the eyes of many, an obstacle too far. News of job losses and insolvencies followed the announcement almost immediately. This will undoubtedly continue unless we see urgent, targeted, financial support for the industry or an end to the curfew. Suppliers still have to be paid, and, in the absence of a longer-term solution, rent is still falling due. Whilst the forfeiture moratorium has been extended until December, many operators are concerned that, without further action, this simply delays the inevitable.

The government cannot pretend that continued support is unnecessary because hospitality is ‘open’. We must remember that many hospitality premises, such as nightclubs, have not yet been permitted to open at all. At present, there does not appear to be any light at the end of the tunnel for these operators. Furthermore, for those who can open, they cannot pretend that a 10pm cut off is insignificant. It has been fifteen years since the changes brought about by the Licensing Act 2003 took effect, and even before then an 11pm closure was by no means ‘standard’. This is not the loss of an hour’s trade. For operators countrywide, it is the loss of many hours – hours which are key to their business turning a profit. Even for restaurants, in light of changes to eating habits and times, particularly in city centres, this could be the loss of an entire dinner sitting every day of the week.

Additional legal requirements on leisure operators

The curfew also goes hand in hand with further requirements and restrictions imposed on the industry recently. These include the legal obligation to take track and trace details; the legal obligation to operate table service only where alcohol is sold; the legal obligation to enforce the rule of six; legal obligations in relation to the wearing of face-coverings; and, more recently (and more bizarrely), requirements to stop singing on the premises by customers in groups of more than 6, dancing on the premises at all and the playing of music at a level which exceeds ‘85db(A) when measured at the source of the music’.

In the face of this, operators have once again attempted to dust themselves off and consider new ways of doing things. Many of our clients have been reviewing licences this week to look at opening earlier to capitalise on breakfast and brunch trade, but many are concerned that this simply won’t be enough.

This impact might be easier to swallow if, firstly, it were accompanied by substantial additional financial support and, secondly, if it were justified by clear and reasoned evidence and implemented in a logical manner in consultation with the industry. Neither appear to have been forthcoming.

Is the 10pm curfew justified?

In fact, the BBC’s Reality Check reported yesterday that PHE data shows that between 3rd August and 20th September, 97 outbreaks of coronavirus occurred in restaurants or food outlets – versus 329 in workplaces, 357 in educational facilities and 508 in care homes. We must also remember that the scientists have so often referred to two-week periods as being crucial in the context of the incubation period of the virus. Hospitality venues re-opened on 4th July, and yet we did not see huge increases in cases throughout July or August.

Furthermore, the results of an arbitrary and universal cut-off time were inevitable. Videos of city centre streets, taxi-ranks, off licences, trams and trains crowded with people spilling out of premises at 10pm showed scenes easily predicted by anyone with the slightest knowledge of the sector, or even of eating and drinking out themselves. It has never been the case that licensed premises throughout the country have all been required to disperse their customers at exactly the same time, for precisely this reason. Gradual dispersal of patrons is desirable at all times, and even more so at a time when social distancing is so vital.

Venues have also expressed immense frustration that these measures do not target those who are breaking rules and resulting in a spread of the virus, but rather they target all premises and all customers indiscriminately. We all know that since restrictions began to be lifted, individuals across the country have displayed varying degrees of compliance with guidance and legislation alike. Individuals who do not generally wish to comply with the rules will be required to do so in well-run licensed premises, not least because the operators of those premises cannot risk jeopardising their licence, facing a prosecution, or an outbreak leading to a full premises shutdown because of their customers’ behaviour. It is fundamentally in their interests to enforce the rule of six and social distancing requirements to letter.

As such, what we do when we force operators to switch off the lights at 10pm is take members of the public out of a monitored and regulated environment, push them out onto a crowded street and leave them largely to their own devices. The result is that those individuals who would always intend to follow the rules anyway are potentially subject to a more crowded journey back to their homes; whilst those who do not intend to follow the rules will go back to homes they do not live in and breach those rules behind closed doors, perhaps swinging by the nearest off licence on route. Some suggest that closing off licences at the same time is answer, and whilst we agree that this would at least bring some logic to proceedings, it still will not deter those who intend to continue the party at home – they’ll simply become more organised and ensure that they have stocked up their fridges earlier in the day.

We saw the impact of these sorts of arbitrary distinctions between the on and off trade during the lockdown itself – when the government permitted us to spend unrestricted leisure time outside and off licences remained open. Individuals gathered in parks and on beaches in large groups, drinking their supermarket alcohol, whilst pub beer gardens sat empty and unused, despite offering potential as secure environments with managed capacity.

What do we need to do now?

What we need to do is find a way to target those individuals who are not behaving responsibly, in all settings – not target an entire industry because it seems like an easy option. Individuals who do not isolate, or socially distance or follow rules on household mixing should be targeted for enforcement. Individual venues who do not operate safely should absolutely be held to account, and we must not forget that the Health Protection (Coronavirus, Restrictions) (England) (No.3) Regulations 2020 conferred sweeping and unprecedented enforcement powers on local authorities to issue ‘directions’ and close premises almost immediately if there is a public health concern. Surely this targeted, locally led enforcement is preferable to an arbitrary curfew which seriously risks the long term viability of a very significant proportion of the industry.

For a policy that is so economically damaging to be capable of support, it must be shown to be both necessary and effective. This curfew does not appear to achieve either aim. Whilst we cannot comment on whether wider measures need to be taken across the country, and various industries, as a whole in light of rising case numbers now, what we can say is that the hospitality industry appears to have good reason to feel unfairly scapegoated – and woefully unsupported. If more must be done, so be it, but it must not be levelled solely at an industry already on its knees. Further, there is a real concern that rather than re-thinking here, the government will double down and impose further restrictions on the sector when the curfew does not drive down the rates of infection – despite the fact that this will not be the fault of the industry, but rather of a misguided policy which targets entirely the wrong people and places.


How Kuits can help leisure operators

Our wonderful clients and contacts in the industry are innovative beyond measure, and we are here to help them navigate these new restrictions in any way we can; from varying hours to allow earlier opening, to removing conditions requiring the employment of door supervisors (many of whom will no longer be necessary when closure is so early across the board).

We can only hope that central government realise that their help is desperately needed now, to #CancelTheCurfew before it’s too late.

Speak to a leisure sector legal specialist today

For advice and assistance on licensing or regulatory matters arising out of the curfew or any other new restrictions, please contact the Licensing Team on 0161 838 7888 or rebeccaingram@kuits.com.

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