Legal analysis: ‘Signs on the floor are no match for a drunk man wanting a hug’

Operators are reopening into a complex new regulatory landscape, where licensing, public health and law enforcement combine and overlap. 

As the big day approached last weekend, there were fears that overzealous public officials would go out of their way to make life difficult for operators under the new regime. 

While the advisory operating guidelines, developed in collaboration with UK Hospitality, were released nearly two weeks before reopening, the regulations underpinning this came out just the night before 4 July, leaving a vacuum for speculation. 

The legal profession has since spent the last week poring over the detail, and while it might still be too early to say whether the framework strikes the right balance, as with any legislation drawn up quickly there are plenty of grey areas which could be open to interpretation.

Josef Cannon of Cornerstone Barristers says licensing lawyers and authorities are taking the lead and “steering a course” for operators through the framework.

The problem, he says, is that while licensing does focus on the prevention of public harm, it is not typically concerned with public health, creating a difficulty for authorities fitting these new requirements into their regulatory framework.

“How are they are going enforce the one metre plus rule? Can they show that that’s related to one of the licencing objectives?” Cannon asks.

“Normally, stopping people getting a disease wouldn’t fall under any of those, but clearly, we’re in a slightly different world where that is obviously an imperative.”

Another difficulty is the distinction and differences in scope between the advisory guidelines and the law.

The guidance goes into plenty of detail, while the law is largely limited in scope, saying for example which type of premises can open, while making gatherings of more than 30 people illegal.

With social distancing and the like coming as part of the guidance, operators are left in the ambiguous situation of judging which elements to attempt to uphold.

“Obviously you’re expected to follow the guidance, but it isn’t going to be a breach of the law if you don’t,” Cannon says.

“The guidance imposes quite a lot more on operators, but also people who visit licenced premises, and I think that’s a potential source of tension.

“Police officers coming in and enforcing the law is one thing, but it’s a totally different to say they’re enforcing the guidance, because there’s no power to do that.”

Meanwhile, operators also have responsibilities under health and safety legislation, and the guidance says they must carry out a risk assessment, and take steps minimise risk, to comply with their obligations.

“There’s a shift of responsibility onto the health and safety legislation, rather than licencing,” Cannon says.

“But clearly, if premises are being irresponsible, licencing authorities are going to want to step in and have something to say.”

So far, it’s too early to say how well these guidelines and regulations work, though no major problems have been reported.

However, operators have discussed difficulties in ensuring social distancing is maintained, raising questions over whether operators can be held responsible for the actions of their punters.

“If a pub sells booze to the masses and the masses behave like idiots, to what extent is it the responsibility of the operator?” Cannon asks.

“I think with covid and social distancing, we’re going to see that really brought into sharp focus.

“Everybody knows when they’re sober, that staying a bit further away from people is a good idea. But the effect of alcohol is to loosen your inhibitions, and I think the post 10pm crowd is going to be very difficult to enforce against.

“Is that going to come back on publicans, and if so what can they do about it? Signs on the floor are no match for a drunk man wanting a hug.”

Even the categorisation of venues is open for argument, with nightclubs not allowed to reopen, but with some ambiguity over what defines one.

“Lawyers will always say this, but when legislation is rushed out, there are always questions,” Cannon says. 

“Lots of us would know a nightclub when we saw one, but these days, even restaurants might have a bit of late dancing sometimes, and the term goes completely undefined in the regulations.

“It looks like there are quite a lot of things that aren’t quite nailed down as tightly as you might hope.”

Despite the challenges, Cannon believes there is goodwill among licensing authorities to be a help rather than a hindrance.

“We talk about the regulator in a situation like this needing to hold the hands of the operators, and rather than holding them back, helping them to get through the regulatory hurdles rather than waiting for them to fail,” he says.

“Certainly my impression is that there’s a lot of goodwill in that sense.”

This has manifested itself in the waiver of fees for outside seating licenses for example, to help businesses get back on track.

“The last thing operators need is another hundred quid to pay, so that feels to me like there’s definitely a keenness to facilitate this recovery.

“I think that may well lead to an exercise of discretion, where an operator has clearly tried to do the right thing but might have missed a couple of steps.”

Looking at the wider political context behind this tension, Cannon sees it as a balancing act between the economy, public health, and the public’s acceptance of the rules.

He said it was the latter, where the government were “rightly terrified of a national breakdown of obedience”. 

“There was a need to at least keep a semblance of being ahead of the curve, in terms of the public message, and that’s all being played out on our high streets in our night-time economy,” Cannon adds. 

“If you keep people out of restaurants and pubs for much longer, they’re going to just take it upon themselves to have people around to their houses, and we know prohibition doesn’t work.

“I think this is a compromise. We’re very lucky that this is happening now in the summer, when lots of restaurants can take advantage of these new pavement licences to use outside space.

“I think it is too soon to judge whether the particular balance that’s been struck is the right one. I think we probably won’t know for six months.”