Nicola Sturgeon’s hospitality shutdown has descended into chaos hours before it is due to come into force after her government failed to define which eateries were able to stay open if they stopped serving alcohol.
The First Minister offered a last-minute reprieve to licensed cafes in the Central Belt on Thursday, saying they could stay open if they did not sell alcoholic drinks, but failed to define which outlets would be deemed 'cafes', 'restaurants' or 'bars'.
This prompted confusion across the industry, with desperate business owners questioning whether their outlets were cafes and allowed to stay open or restaurants and therefore must shut for 16 days at 6pm this evening. Pub owners serving food also questioned why the exemption could not be extended to them if they operated on a dry basis.
Watch: What are the new Covid-19 rules in Scotland?
The confusion deepened on Thursday night after Jason Leitch, Scotland's national clinical director, said it would be up to council environmental health officers to decide and enforce the rules, contradicting Ms Sturgeon's statement only hours earlier when she said a "specific exemption" for cafes would be set out in regulations.
He was then contradicted by Scottish Government officials, who said the difference between cafes and restaurants would be defined in the new regulations.
Steven McGowan, Partner and Head of Licensing for Scotland at law firm TLT, said that if a definition for cafe was not set in law it would lead to “absolute carnage” across the country with the fates of businesses decided by “the subjective view of a council officer”.
We have 32 different councils. Is that 32 different interpretations of ‘cafe’? And then interpretation from officer to officer within an area? Do my clients need to stock up on sandwiches and cakes to stay open? Parliament must surely take ownership of this
— Stephen McGowan (@LicensingLaws) October 8, 2020
He added: “My sincere best wishes to the parliamentary draftspeople tasked with creating a definition [for cafe] in law. In a matter of hours. With thousands of businesses biting their nails.
“There is no separate classification for cafes and restaurants under licensing law. Under planning law, cafes and restaurants are treated under the same class. The exact definition of what is meant by a cafe is therefore critical.”
The turmoil has fuelled growing criticism of the First Minister over recent days for failing to consult with businesses before setting out plans.
The firms affected by her clampdown were also still waiting for answers on the eve of the clampdown over how a £40m funding package would be distributed.
Meanwhile, Lord Forsyth, the Tory peer and former Scottish Secretary, urged businesses to take legal action against the Scottish Government over the new rules, which he described as “completely out of proportion and devastating for the businesses concerned”.
Stephen Montgomery, a spokesman for the Scottish Hospitality Group, said: “The problem in Scotland is one licence fits all. So any rules have to apply equally to everybody.
“If you’ve got a cafe, and a pub next door, the virus doesn’t understand what is a pub and what is a cafe. So if her main aim was to give a shirt, sharp, shock to the virus, where do you draw the line?"
Paul Waterson of the Scottish Licensed Trade Association said businesses were "really confused" about the First Minister’s statement and accused her of a "complete turnaround".
He added: "We’ve spoken to lawyers today and they’re confused too. There is absolutely no definition of who can open and who can’t now.”
"This is people’s livelihoods, businesses are hanging by a thread, and in one sentence it’s all changed. We weren’t consulted and we never saw it coming.”
Ms Sturgeon revealed the exemption for licensed cafes at First Ministers’ Questions. She was responding to Jackie Baillie, the Scottish Labour deputy leader, who said cafes in her constituency would have been forced to close despite drinks being a only tiny part of their business.
The First Minister said regulations, to be published on Friday, “will include a specific exemption for cafes” and that these “will be able to open, whether they are licensed or unlicensed, as long as they do not serve alcohol”.
On Wednesday, Ms Sturgeon said all licensed venues across the Central Belt would have to close from Friday. In the rest of the country, they will be allowed to open only from 6am to 6pm indoors. Alcohol can only be served outdoors, up to 10pm.
James Withers, the chief executive of Scottish Food and Drink, said the problems with the cafe loophole could have been easily foreseen had businesses been consulted.
“I’ve got a headache, and I’m not trying to run a hospitality business, I’m just trying to find the answers,” he said. “Imagine if you’re a licensed cafe in the Central Belt, you’ve just told all your staff to take the next two weeks off, you’ve cancelled all your food and drink orders, then find out you need to bring the staff back on the rota and make the orders.
“It’s incredibly confusing and an avoidable problem. And now you face the question, when is a restaurant a cafe and when is a cafe a restaurant? We need a common sense approach which is if licensed cafes can operate, just not serve alcohol, that should be translated across to licensed restaurants as well.”
There is no such thing as a licensed cafe. https://t.co/XN9rlY6bcq
— The SLTA (@SLTAssociation) October 8, 2020
Writing in The Daily Telegraph, Tom Kitchin, the leading Scottish chef, accused the Scottish Government of “throwing fireballs” at the sector despite it going to great lengths to follow guidelines.
“Having to completely shut for 16 days, as we do in the central belt, is hard to comprehend,” he said. “At first it was emotional, then that turned to anger: ‘why are they picking on us?’”
Asked to explain the difference between a restaurant and a cafe on Thursday night, Mr Leitch said: "Local authority environmental health officers will have to make those judgements. Some of it will be obvious, at either end of the spectrum, and some of it will be a little bit more difficult.
"These decisions are not binary, they're not simple choices, and this is just another example of a complex decision-making process to get us to the point where we need the virus suppressed".
Later, Scottish Government officials said the regulations would set out the difference after all.
A spokeswoman said: "The temporary restrictions on hospitality, supported by £40 million of funding, are essential to curb transmission of the virus, particularly in the Central Belt.
“However, as the First Minister has set out, we are allowing a very limited exception to this so that cafes can open during the day to allow socialising for those who may suffer from social isolation or who may live alone, while still reducing transmission.”
Watch: Nicola Sturgeon accused of misleading parliament over when she first knew of Salmond allegations