Licensing: A justiciable freedom?

During World War 2, Britain’s licensed trade remained largely open for business despite the best attempts of the Luftwaffe to destroy the country’s infrastructure. In the past 12 months, a virus has succeeded where the Third Reich failed: large swathes of Scotland’s hospitality sector are under threat due to the burden of severe restrictions. The seemingly ever-shifting controls on civil liberties are without precedent in a modern democratic society; and while it is impossible to argue with the need to take robust measures to control the spread of COVID-19, the licensed trade has endured restrictions whose rationale has on occasions been hard to detect.

At the very core of the licensed trade’s grievance is the lack of an evidential foundation for the continued closure and restrictions. For example, data published by Public Health England last November indicated that, over a five-day period of testing, fewer than 2% of those testing positive for the virus had visited a hospitality venue. There is also attraction in the argument that closing licensed venues or restricting their opening hours is likely to fuel gatherings that are more likely to promote the spread of the virus than a well controlled environment such as a pub.

Judicial challenges

Might the hospitality sector vindicate this perceived injustice in the courts? So far, only one attempt has been made by licensed businesses to assail the Scottish Government’s decision making. In KLR & RCR International Ltd v Scottish Ministers [2020] CSOH 98 (11 December 2020), hospitality operators and the owner of a short-term letting business petitioned for judicial review of the Scottish Government’s failure to move Edinburgh from “level 3” to “level 2”. The reclassification would have resulted in looser trading restrictions and had considerable commercial benefit.

The petitioners argued that the Scottish Government had failed to follow its own criteria for allocating local authority areas within “levels”. There was also a lack of evidence to support the decision. Lord Ericht held that ministers had been entitled to consider a range of factors and place weight on an increase in case numbers (albeit modest) together with concerns that opening up more services as the Christmas period approached would carry a significant risk of increased transmission. The petitioners’ motion for interim suspension of the decision was refused.

In this case there was no assault on the legislation itself. Nevertheless, it provides a clear signal that, during a fast moving public health emergency involving a steep scientific learning curve, the courts are unlikely to interfere with political decisions taken in conjunction with expert advisers. In R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, a challenge to lockdown restrictions in England (and referred to in KLR), the Court of Appeal gave short shrift to a raft of arguments. The claimants contended that the Government had followed the advice of one group of scientists and had not paid attention to others, less restrictive measures would have addressed the spread of the virus more proportionately, and various articles of the European Convention on Human Rights had been violated. In the opinion of the Court of Appeal, the lockdown legislation was “quintessentially a matter of political judgment… and is not suited to determination by the courts”.

A breach in the dam?

According to the Scottish Government’s skeletal timetable, Scottish hospitality venues are due to reopen on a phased basis starting on 26 April, but the trade will continue to struggle financially until something approaching pre-pandemic normality is restored.

The incentive to challenge the restrictions therefore remains, but the decisions in KLR and Dolan appear to constitute a road block. However, the “lockdown” regulations are not invincible. In Philip v Scottish Ministers [2021] CSOH 32 (24 March 2021), Lord Braid held that the ban on public worship amounted to a disproportionate interference with the rights secured by article 9 of the ECHR. Had ministers evaluated and properly rejected less restrictive measures that would achieve the same level of health protection? In the Lord Ordinary’s opinion (at para 114), if one activity is considered to present an acceptable risk, then it is legitimate to ask why another comparable activity is not. The hospitality sector has yet to receive a proper explanation as to why, despite all the mitigation measures it has put in place, licensed premises pose a virus transmission risk greater than, say, retail.