The Prime Minister and the Government have now chosen to throw the dice and see where it falls in the great debate about whether the economy should continue to be locked down in order to prevent the spread of the virus or whether restrictions should be lifted before we see thousands of business closures, mass unemployment and further terrible hardship. They have, rightly, come down on the side of lifting the most extensive and restrictive set of controls on our economy in history. This has been combined with the greatest tightening of our civil liberties since the Second World War.
To quote the Prime Minister’s words, we are now coming out of our great “national hibernation”. After months of confinement, the vast majority of us need to meet up with friends and enjoy some food and drink in a convivial setting.
In accordance with the Government’s proposals, it yesterday promulgated the new health protection regulations, which displace the previous regulations in force with amendments since late March.
We have the best hospitality industry in the world and our great operators are fully geared up to face the challenges that lie ahead with opening premises but having to comply fully with social distancing requirements and relevant risk assessments. There have been so many exciting examples of this ingenuity displayed in recent weeks as bars, pubs and restaurants have been preparing for opening their doors once again.
Let’s examine briefly the effect of the new law.
The new regulations are styled as the Health Protection (Coronavirus Restrictions) (No. 2) (England) Regulations 2020 and they were laid before Parliament on 3 July at 3 pm and came into force at one minute past midnight on the 4 July with restrictions relating to bars and restaurants being relaxed as from 6 am on the same date.
This means pubs, bars, restaurants, cafés, theatres, cinemas and concert halls, amongst others, may now open.
However, there is still a considerable list of premises which may not open yet as follows:
1. Nightclubs (not defined in the regulations but see comments under para. 2 below)
2. Dance halls, discotheques and any other venues which open at night, have a dance floor or other space for dancing by members of the public and provide music, whether live or recorded, for dancing. If, however, the business ceases to provide music, dancing and facilities for dancing, then the premises do not fall within the definition of dance hall or discotheque for the purposes of the businesses, which are subject to closure. Such premises are able to provide a shop or café or restaurant so long as those facilities are provided in part of the premises separate from any area where there are facilities for dancing.
3. Sexual entertainment venues and hostess bars. However, those premises which also benefit from a premises licence under the Licensing Act 2003 and cease to use their sexual entertainment venue licence will not fall within the requirement to close provisions.
5. Nail bars and salons
6. Tanning booths and salons
7. Spas and beauty salons
8. Massage parlours
9. Tattoo parlours
10. Body and skin piercing services
11. Indoor skating rinks
12. Indoor and outdoor swimming pools, including water parks
13. Indoor play areas, including soft play areas
14. Indoor fitness and dance studios
15. Indoor gyms and sports courts and facilities
16. Bowling alleys
17. Conference centres and exhibition halls hosting conferences and tradeshows.
There continues to be confusion about live music in venues. For many operators and licensing authorities, it remains unclear as to what constitutes a statutory requirement and what is merely guidance. Many are assuming that live music is banned in premises. This is not so.
The guidance, which came out on 23 June 2020, states that venues should not permit live performances, including drama, comedy and music to take place in front of a live audience. This is not law but guidance on what the law requires. If operators are told by licensing officers or police that they must obey the guidance, then they are being informed incorrectly. It is there to provide a helpful steer and to be used in conjunction with detailed risk assessments and perhaps to inform the production of those assessments.
The theory behind the apparent direction in the guidance that venues “should not permit live performances including drama, comedy and music” is that some studies have shown that there can be transmission of the virus through the air when performers are singing as they tend to take deeper breaths and breath out more as they sing. An audience in an enclosed environment, particularly, may be more susceptible to this.
It is further thought that audiences in such environments may seek to join in and there may be more laughter and cheering with the associated risks. The example is now used of a church choir practice in Washington state where 87% of attendees were infected. They had changed place four times in the 2.5-hour practice and were tightly packed and were mostly older and therefore more vulnerable to illness. 53 out of the 61 attendees were infected and two sadly died. When singing, people can emit respiratory particles.
A study also showed that cheering at clubs as well as the mere act of talking in bars resulted in a cluster of cases in Japan.
Accordingly, the Government is stating in guidance that live music and the showing of live sporting events such as football matches should not be permitted in bars and restaurants but it is for operators and their individual detailed risk assessments to address these issues and act accordingly to ensure the safety of customers and staff.
A background DJ or musician appears satisfactory on the face of it. However, if the performance becomes foreground and customers start to participate or even dance and sing, increasing the likelihood of a breakdown of social distancing, then there is a possibility of an infected person passing on the virus. A pianist in the corner of a restaurant playing in order to provide a pleasant atmosphere would probably be safe but professional advice should be sought on a pianist who is singing close to customers.
The new regulations make clear that no person may participate in a gathering which consists of more than 30 people and takes place in a private dwelling (including a houseboat), on a vessel, other than a houseboat or a vessel used for public transport or on land which constitutes a public outdoor place. Visitor attractions are excluded from this category. There are other exceptions also in the case of, for example, elite sports persons.
Further questions have also been asked about the ban on more than 30 persons indoors, but there is again no specific statutory ban in this respect. The regulations only prohibit the participation of a person in an “indoor” rave event where the numbers are in excess of 30 people.
The new regulations will remain in force for a period of six months from 4 July 2020 but are subject to a review by the Secretary of State at least once every 28 days.
If you are an operator and have any questions relating to reopening and the guidelines, please contact Gareth Hughes.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.