Pub, nightclub and music venues bosses are to take the Scottish Government to court over Covid trading restrictions they claim are “no longer justifiable or proportionate”.
The Night Time Industries Association Scotland (NTIAS) is launching a judicial review of decision-making affecting the hospitality trade, as the country eases restrictions.
They argue legislation both in response to the pandemic and the lockdown easing are “irrational, unlawful and disproportionate”.
Those include retaining legal powers to close premises even when the country reaches Level 0 – expected in late June with suppression of the virus – on the government‘s roadmap out of lockdown, despite the trade urging them to consider “less intrusive and restrictive” measures.
‘No meaningful consultation throughout pandemic’
This morning, NTIAS vice chairman Gavin Stevenson said: “It is with an extraordinary sense of disappointment and frustration that we have commenced legal action against the Scottish Government.”
Mr Stevenson, who runs the Mor-Rioghain pub group which includes the Mains Of Scotstown in Aberdeen and a number of Inverness venues such as Gellions, added: “While ministers have repeatedly paid lip service to the concept of consultation with the late night, music, culture, and licensed trade sectors, in reality there has been no meaningful consultation throughout the pandemic and little if any objective assessment regarding the balance of the four harms in many months.
“Any objective assessment would require the rapidly decreasing risks from coronavirus to be weighed against the existential threat that such measures represent to businesses, livelihoods, and employment. While also taking into account the consequential and foreseeable impact on wellbeing and mental health of business owners, employees and customers. It is clear such assessment is sorely lacking.
“Given the success of the vaccine programme and enormous damage being inflicted on Scottish businesses and their employees, the reluctance of Scottish Government to engage with our sector on a framework for full reopening appears little short of negligent, and the failure of government to adequately consider the harms being done to the economy, livelihoods, employment, and mental health is inexcusable.”
Lawyers say government’s decision-making is legally ‘flawed’
The powerful lobbying group has hired TLT Solicitors and Scotland’s most senior lawyer, the Dean of the Faculty of Advocates, Roddy Dunlop QC, to make their case in court at the “earliest practical opportunity”.
In papers lodged with the courts today, their solicitors claimed: “The Scottish Government’s decision and law making in relation to the night time economy is fundamentally flawed and contaminated.
“It is flawed because it does not appear to be based on rational evidence (despite pronouncements to the contrary) and because the effect of those measures in place and those which are proposed is plainly disproportionate to the problem the measures purport to target.
“Businesses both large and small will not be able to justify to their lenders trading at a loss in order to achieve compliance.
“They will simply have to close or go bankrupt.”
Church won similar legal fight
They argue continuing the emergency restrictions, which currently dictate outside-only drinking, limited capacities and reduced hours of opening, would be a breach of Article 1 of the European Convention On Human Rights.
The legal bid was supported too by Tony Cochrane, who owns a string of venues across Scotland including the Club Tropicana nightspots in Aberdeen and Dundee.
He said: “The Scottish Government’s failure to give the Scottish nightclub sector any dates on potential reopening, just a tier system that leaves us the only industry to have forced closure even at Level 0 and no clarity on how this system progresses below Level 0.
“Every other sector has a time table to recovery, we have been given nothing.
“All financial assistance has stopped and no further offer of funding with months of costs ahead and no income leaving us on the brink of collapse.
“This frustration of no route map, failure to have constructive dialogue, the threat to our 350 staff’s livelihoods, continued closure, and lack of action to give financial support has led us to having no alternative but to challenge Scottish Government through the legal system.”
Government: ‘We must move very carefully’
Hands were tied at Scottish Government headquarters, with press statements limited by the election rules.
However, a spokeswoman said: “As we have previously said, we all want to get back to normal as soon as it is safely possible, but we must move very carefully to ensure continued suppression of the virus.
“The Strategic Framework Business Fund provided grants to businesses that were required to close by law or to significantly change their operation due to Covid-19 restrictions from November 2020.
“Nightclubs were eligible and will have now received restart grants of up to £19,500, equivalent to more than six months support provided by the fund every four weeks.
“Retail, hospitality and leisure top up grants of up to £25,000 per business premise were provided in recognition of the severity of the challenges that these sectors faced.
“The Scottish Government is also extending 100% non-domestic rates relief for retail, leisure, hospitality and aviation businesses for this financial year and one-off grants for nightclubs of up to £50,000, based upon rateable value, were made available last October through the Covid-19 Contingency Fund.”