WHAT NEXT FOR NIGHTCLUBS?

Following 19 July 2021 (so called, “Freedom Day”), nightclubs and late-night venues re-opened. However, measures have remained in place that can impact a venue’s ability to open and it seems that further measures may be introduced in the winter that will impact venues.

The Health Protection (Coronavirus, Restrictions) (England) (No.3) Regulations 2020 (No. 3 Regulations) (‘the Regulations”) gives local authorities the power to make directions which respond to a serious or imminent threat to public health. A direction can include (amongst other things) the power to restrict access to, or close, individual premises.

In practice, this has meant that, since Freedom Day, venues (and with particular emphasis on nightclubs and late-night venues) have still had to respond to and implement recommendations made by local authorities in order to avoid the risk of closure. Many venues will have co-operated fully with the local authority. However, this can present practical and legal issues for venues in what is achievable. There is, at least, anecdotal evidence of voluntary closures in consultation with the local authority to avoid imposed closures and the potential stigma from that.

Under the Regulations, any direction must be necessary and proportionate in order to maintain the transmission of coronavirus in the local authority’s area. Before making such direction the local authority must gather evidence to support its decision. This, for example, could include (but, is not limited to) information from NHS Track and Trace, Public Health England, COVID-19 transmission rates in the area and, information about whether business owners are following the working safely guidelines, or any other relevant guidance applicable to the business. This means that local authorities can base their decisions on a wide-range of factors and can give rise to different local authorities applying different criteria and subjective decision making. Practically, that can be difficult for venues to manage.

Once a direction is issued, a local authority must review the direction at least once every 7 days. In terms of legal recourse, a local authority’s decision can be appealed via the Magistrates Court or to the Secretary of State for Health. But, in many cases, that will simply not be practical or economically viable for venues. The alternative is therefore for venues to work with local authorities to avoid closure.

The Regulations will continue to apply until the end of 27 September 2021 (albeit the Regulations have been extended before) but are then set to fall away as matters stand, removing a significant power available to local authorities to manage the pandemic. However, it seems that further measures may be introduced in the winter which may impact venues. Notably, the government recently scrapped plans for “covid passports” for nightclubs and late-night venues from 1 October 2021. But, this week the government has announced the Covid-19 Response: Autumn and Winter Plan (the “Winter Plan”), which sets out the government’s proposed response to COVID-19 over the coming months. The Winter Plan (under Plan B) includes the government’s right to reintroduce such measures at short notice if coronavirus cases rise. Therefore, in practical terms, for venues, maintaining many existing Covid measures despite the removal of local authority powers may make sense or at least retaining the ability to re-introduce speedily and at limited cost. As we have seen throughout this pandemic, decisions have been subject to u-turns in the past and it is not inconceivable that they will be again.