Glasgow Sheriff Court this week granted an interim interdict against Glasgow City Council, preventing it from closing Eusebi's deli in Glasgow's West End as part of the central belt's Covid-19 restrictions. After four other premises brought similar challenges against Glasgow City Council on the back of that judgment, the Council has given an undertaking in court that it would also not issue prohibition notices to them.
On 9 October the Scottish Government made the Health Protection (Coronavirus) (Restrictions and Requirements) (Additional Temporary Measures) (Scotland) Regulations 2020 (the "Regulations"), which provided for "temporary additional measures" to curb the spread of Covid-19, including the closing of licensed premises in five health board areas across the central belt of Scotland. In response to complaints that this would have a disproportionate impact on a number of café businesses which hold an alcohol licence but for whom alcohol sales are only a small part of their business, the Scottish Government provided a carve out for "cafes" and "canteens" as well as airside premises at airports (i.e. airport bars and restaurants) and licensed premises on ferries.
The Regulations define a café as "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".
It appears that the Sheriff in this case accepted that the ground floor at Eusebi's was a "café" which could remain open, based on till receipts indicating that its primary business activity over the past two weeks fell within that definition. The upper floor at Eusebi's, which operates as a restaurant, was and remains closed.
Guidance and law
When the carve-out for cafes was announced, there was immediate recognition that this would not be clear-cut in practice, notwithstanding the First Minister's suggestion that businesses would "know if they are a restaurant".
Premises are not so clearly defined as that: there is no clear legal distinction (in ordinary times) between a café, a deli, a restaurant, a bar and a pub. Use classes for planning permission purposes simply recognise "Class 3" premises which are used for the sale of food or drink for consumption on the premises, and beyond that premises are either licensed or not licensed to sell alcohol. The definition in the Regulations only takes us a little further forward – after all, is a "light meal" or "snack" defined by reference to the number of courses, the number of calories, the use or size of plates or type of cutlery required, or something else?
Given that ambiguity, businesses, faced with what is for many an existential crisis, will of course seek to continue to trade if they think they can do so lawfully.
The Scottish Government has suggested that whether individual premises are or are not "cafes" within the Regulations would need to be determined by council enforcement officers and the First Minister has said that the "flexibility only works if people try to operate within the spirit of this and remember what the objective is". It might therefore be no surprise that press reports have suggested that there are inconsistent approaches being taken between councils, with some applying particularly strict interpretations based on their understanding of the "spirit" of the rules.
This week's ruling from Glasgow Sheriff Court, however, acts as a reminder that (as I recently blogged in relation to measures in New Zealand) the "spirit" of the law, including guidance from the Scottish Government, does not empower public authorities nor bind private individuals and businesses. What the law actually says really does matter.
Any businesses, or indeed local authorities, who need assistance with understanding what is and is not permitted should feel free to get in touch. Our Government, Regulation and Competition team would be happy to help.
Postscript
It has now also been reported that a number of groups representing Scotland's licensed trade are bringing a judicial review in the Court of Session against the Scottish Government's regulations themselves, which will be something hospitality businesses and public authorities will be watching with keen interest.
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