Published: 29 December 2021 by Andy Grimsey
Licensing solicitor, Andy Grimsey, recently drafted a legal Q&A article to help people within the licensed trade understand how the current rules impact their licensed premises.
This legal guide, which is published below, has been shared across social media and, on the 29th December, was covered on the Sky News website as the trade builds up to New Year’s Eve celebrations.
Andy is a leader in the alcohol and entertainment legal sector, having co-wrote the Live Music Act and assisted central Government on its review of the Licensing Act 2003.
In relation to licensing laws and Covid, Andy worked with licensing barrister Gary Grant of Francis Taylor Building to write the in-depth report ‘How Covid 19 changed the hospitality industry’, a legal timeline of the restrictions that impacted the licensed hospitality sector.
The report, in both text and PDF format, can be read here.
Q: Can venues like pubs, where not legally required to, still ask customers for a vaccine passport or negative test?
A: Yes. However, all venues must still comply with relevant health and safety and equalities legislation. Whilst licensees can refuse entry, they cannot do so if the reason for refusal is due to a protected characteristic under equality law, for example a disability.
Q: Do customers have the right not to adhere to any request for COVID passes or test results if asked in a venue, where not legally required?
A: Yes, but the customer may be refused entry as a result. This will be a matter for the venue management, their risk assessment, any pre-existing contract between the venue and the customer (conditions of entry on a ticket, for example) and any relevant Equality Act considerations.
Q: Under what circumstances is a customer or licensed premises exempt from enforcing the rules or following the rules?
A: Licensed premises which do not serve alcohol or provide music for dancing or a space for customers to dance at any time between 1.00am and 5.00am will be exempt during those times that they are not serving alcohol or providing music or a space for dancing. There are other general exemptions, for example for weddings and civil partnership ceremonies, receptions celebrating a wedding or other significant life event (like a christening, bar or bat mitzvah or mehndi ceremony) that are organised by an individual (and not a business or other body), funerals, outdoor events in public spaces where these are un-ticketed and not charged for (such as markets and street parties), and events in private houses where people do not have to pay or hold a ticket to enter.
Customers are exempt if they have participated, or are participating in a relevant clinical trial of a vaccine against coronavirus disease, or for clinical reasons should not be vaccinated with any authorised vaccine. Those under 18, staff and police, emergency services and local authority officers are also exempt.
Q: How long do the rules in England last for?
A: The rules are due to expire at midnight on the 26 January 2022.
Q: If I am on a night out and lose my phone or it runs out of battery, can I still enter a nightclub if I am double vaccinated/will a lateral flow test taken on the spot be acceptable?
A: You must prove your vaccination status or have a negative lateral flow test within 48 hours prior to being admitted to an event/venue. If your battery is likely to run out it would be a good idea to print out your Covid pass or the results of your lateral flow test from NHS Test and Trace. A lateral flow test taken on the spot will not suffice unless you have reported it to NHS Test and Trace and been notified by them of the result via text or email, which may require waiting some time out in the cold and your phone to have some battery left.
Q: Are nightclub or security staff responsible for verifying the authenticity of passports/test results and what are the implications of using a fake pass or result – can I be barred from a venue?
A: Firstly, it is an offence to provide false evidence of Covid status if you know that the Covid pass or negative result is false. This can result in a fixed penalty of £10,000. And yes, you could be barred from a venue. The NHS Covid pass and text or email proofs of recent tests should be visually checked, but ultimately this evidence is presented by the customer and should be taken at face value, with the onus lying with the customer.
Q: How is music for dancing defined?
A: “Music for dancing” should be distinguished from background music, or music for other purposes such as during the showing of films, comedy or theatre. This will come down to local interpretation, but for example the volume of the music, the presence of a dedicated dance floor or space for dancing, whether a DJ is present and of course customers actually dancing would be factors to consider.
Q: How is a nightclub defined as opposed to a pub, bar or other licensed venue?
A: Nightclubs don’t have definition in the regulations, but it is important to note that whilst the requirement to check proof of Covid 19 status generally applies at all times for nightclubs (rather than just from 1.00am to 5.00am), it does not apply when the nightclub does not provide either music for dancing or a space for dancing.
Q: If a pub, bar or other venue not defined as a nightclub plays “music for dancing” how do the rules apply?
A: Nightclubs (and dance halls and discothèques) aside, a pub, bar or similar venue which is all the following: open between 1.00am and 5.00am, serves alcohol after 1.00am, has a dance floor or other space for dancing by the public and also provides music, whether live or recorded, for dancing, will be required to check for proof of Covid status. Again, if these venues between 1.00am and 5.00am do not actually provide music for dancing or a space for dancing, or are not serving alcohol, then they will not be caught by the regulations.
Q: When should customers’ Covid 19 status be checked for venues to which the rules only apply between 1.00am and 5.00am?
A: The requirement is for venue operators to take reasonable measures to ensure that everyone who remains between 1.00am and 5.00am has the NHS Covid pass or other accepted evidence. The venue may choose to either check all visitors for the entire time it is open, both before and after 1.00am, or check all visitors who remain in the venue immediately before 1.00am, and begin to use door checks on new entrants from this time onwards. Basically, any method that ensures that those customers on the premises after 1.00am have been checked will generally be acceptable. This might be, for example, by using a stamp or a wrist band system which is voluntary earlier on in the evening (so customers can have their Covid status checked at their leisure) and then mandatory leading up to 1.00am.
The venue operator would be responsible for ejecting customers already on the premises immediately before 1.00am if they could not provide satisfactory proof of their Covid status.
Regulations relating to Covid pass for venues and events laid before Parliament
Proposed to come into effect at 6 am on Wednesday, the 15th of December
Face Coverings Regulations now published
Further details on face coverings requirements are now available
Government updates Guidance in light of changes to COVID rules
COVID ‘What’s Changed’ Guidance updated
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