Pub, restaurants and hotel businesses have seen near collapse of their trade since the first lockdown in March, and again when those in the Central Belt were shut down again three weeks ago. A new tiered restriction system yet to be announced by the Scottish Government is also expected to keep many closed indefinitely.
As a result the Scottish Beer & Pub Association, The Scottish Licensed Trade Association, UKHospitality (Scotland), the Scottish Hospitality Group and the Night Time Industries Association Scotland have sent a “pre-action letter” to the Government and said the “battle is on to save the hospitality sector”.
They claim the restrictions have been put in place without any scientific evidence to support them, and legal advice from Aidan O’Neill QC says a judicial review of the Government’s actions “would be warranted”. The government has until 4pm on October 28 to respond, or the bodies will petition the Court of Session.
The group’s spokesperson, Paul Waterson, said the “battle is on to save the hospitality”.
“It is with regret that we now commence with this first stage in the legal process,” he said. "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."
He added: “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.”
The letter sent to the Government challenges the legal basis of recent legislation relating to the hospitality sector passed by the Scottish Parliament and sets out the basis for the proposed judicial review.
It also makes a specific call for the government to withdraw the current regulations and to enter into “meaningful consultation” with the sector; and to cease the reliance on “certain emergency procedures which avoid any prior Parliamentary involvement or discussion”.
It also calls on the 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”.
Evidence and impact assessments should also be published, the letter says, to gauge the impact of the measures on the spread of the virus, jobs and business viability for the sector and include the behaviour of customers within venues.
Scottish Conservative leader Douglas Ross said: “If the SNP government had fully engaged with businesses, then this situation could have been avoided.
“The hospitality sector is facing a crisis with thousands of jobs and livelihoods at risk. The SNP has continued to stall as more restrictions have been put in place and the sector is now at breaking point.
“Time is ticking. The onus is on the SNP to step up and provide that support to hospitality businesses now. Their neglect is causing devastation to jobs, businesses and damaging the wellbeing and financial security of countless people across Scotland.”
Scottish Labour’s culture secretary Claire Baker MSP added: “It is regrettable that the hospitality industry now feels the need to take forward a judicial review. I know from engaging with the sector that this decision reflects that fact that they do not feel listened to by the Scottish Government about the impact of the pandemic rules, and are not receiving the sufficient support they desperately need.”
However the Scottish Government defended the restrictions and said it was financially supporting the hospitality industry.
A spokesperson said: “We are using the powers we have to help businesses, offering support which now exceeds £2.3 billion, including 100% rates relief for pubs and restaurants for the year and we will extend financial support available to businesses who must stay closed or continue to restrict their trading to cover the additional week of restrictions.
“We are confident the temporary restrictions are essential and proportionate to the risk posed by coronavirus if we are to prevent a return to the dangerous level of infections experienced earlier this year. We will respond to the letter in due course.”
The Government has been asked for comment.