Eateries ordered to close despite meeting SNP's legal definition of 'cafe'

A clampdown on hospitality venues across the Central Belt became mired in further confusion yesterday after some eateries that stayed open legally were ordered to close down.

Glasgow City Council admitted it had told businesses to shut even though it accepted they could meet the definition of a “cafe”, which under the law are able to continue operating, published by the Scottish Government.

Meanwhile, while hundreds of inspections have been carried out in Glasgow, other local authorities failed to carry any or are relying on the “honesty” of proprietors, creating a postcode lottery across central Scotland.

The hardline approach of the SNP-run Glasgow Council gave further ammunition to critics who claim the nationalists have an anti-business agenda.

Douglas Ross, the leader of the Scottish Conservatives, gave a major speech yesterday in which he accused Nicola Sturgeon of sidelining the private sector in devising her response to Covid-19.

He said forcing the closure of eateries that nevertheless met the legal definition of cafe drawn up by the SNP government was “absurd”, leaving the fates of businesses upto “whims of local council officers”.

Last week, all licensed hospitality venues across the Central Belt were ordered to shut down until at least October 25, due to a surge in virus cases. In a late u-turn, cafes with an alcohol licence were told they could keep operating as long as they did not sell drink.

The exemption caused confusion with many claiming they met the “cafe” definition, which in law is defined as a venue with a main offering of “non-alcoholic drinks, snacks or light meals”.

But over the weekend, five venues were told to close in Glasgow despite the council admitting that they “could be interpreted as meeting the legal definition of ‘café’.” A further 18 were told to shut in the city as they were judged “not a cafe”.

The council said that under the definition, venues such as noodle bars or burger restaurants could have been allowed to stay open “but would not be considered by most people to be a cafe”. A spokeswoman said that while it understood why businesses may feel "aggrieved" if they were ordered to close despite officially being a cafe, “meeting the legal definition alone does not necessarily mean that a premises would be considered a cafe.”

However, leading lawyers said it was important that the law was applied, and expressed concern that guidelines were being interpreted differently by different councils.

Glasgow Council officers carried out almost 600 assessments at the weekend, with 24 venues told to close. However, in Edinburgh, no businesses were told to close and several councils said they had carried out no checks. Labour-run North Ayrshire Council said it was asking businesses to be “honest” in deciding for themselves whether they could open.

Caroline Loudon, licensing partner at the law firm TLT, said clients were being told to close as remaining open would not be in the “spirit” of the rules. She said “the buck has been passed” to councils, placing staff an an “invidious position”

“Opinion and ‘spirit’ really have to stand aside while the factual, evidenced, and legal position is established,” Ms Loudon said.

“The legal definition as put forward in the regulations is far from perfect but… operators should be allowed to trade unless Environmental Health can demonstrate that the premises in question fall outside this definition.”

In his speech to business leaders, Mr Ross called for a seven day adaptation period before regulations came into force and the establishment of a business advisory council to offer feedback to ministers.

On the hospitality shutdown, he said: “This is the problem with the SNP’s blurry, confusing guidance. It leaves businesses waiting on the whims of local council officers and creates a postcode lottery across Scotland.

“We’ve now got the absurdity of an SNP-run council forcing businesses to close that are legally defined as cafes.

“This was an entirely avoidable fiasco if the SNP just involved businesses when they set new guidance.”

Speaking at her daily briefing, Ms Sturgeon urged businesses to follow the “spirit” of the rules, saying they were essential to get Covid-19 under control.

She said: “I really do understand how horrendous this is for business owners. But what we are trying to do, for a two week period, is reduce the places where people are coming together and risking the transmission of the virus.

“Businesses that are perhaps feeling it is unfair that they are on the wrong side of the cafe definition, had we just decided to close every cafe with a licence, these businesses would have fallen within that.”