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Scotland's law on COVID vaccine passports comes under fire from affected businesses claiming it's forcing people to have the optional vaccine.

The Scottish Government’s controversial law on the COVID vaccine passport scheme (“the scheme”) came into force at 05:00 on 1 October 2021. In a late about turn, the First Minister announced on 28 September that the system would not be enforced until 18 October, more than two weeks after its introduction. The law requires people going to nightclubs and many other large events to have had two doses of COVID vaccine to gain entry to the venues. The idea of ‘vaccine passports’ was first introduced by Westminster in July, but it has since been scrapped in England with no plans for reimplementation at present. In Wales a scheme has been introduced where either proof of vaccination status or a negative lateral flow test is acceptable. In Scotland the scheme has been beset with problems and has attracted much criticism.

The initial aim of the scheme was to minimise the spread of COVID, but the Scottish Government is also using it as a way to increase vaccine rates in younger age groups where take-up has been slower. Some of the businesses affected believe that their industry is being used to force people into accepting an optional vaccine, which raises many ethical and moral issues.

Implementation of the scheme falls to the individual businesses, with a requirement to check vaccination status of customers either by scanning the NHS Scotland COVID Status App QR codes on smartphones or checking a printed copy of a customer’s vaccination status certificate. The Scottish Government has published the Health Protection (Coronavirus)(Requirements)(Scotland) Regulations 2021 (“the Regulations”) which set out the law and provide guidance on how the scheme must be implemented and policed by venues. Venues include nightclubs and adult entertainment venues which:

  • operate between midnight and 5am
  • serve alcohol after midnight
  • play live or recorded music for dancing
  • have a designated space for dancing that is in use.

The scheme also applies to unseated indoor events with more than 500 people (even if some are seated); unseated outdoor events with more than 4,000 people and any event with more than 10,000 in attendance.

The impact of the scheme on the night-time economy sector in Scotland is huge; an already beleaguered sector which was shut down for over 500 days during the Pandemic. The costs of implementation and the actual physical checks required to be undertaken by businesses on customers make implementation extremely difficult and risk many businesses becoming unviable. Considering this, the Night Time Industries Association (Scotland) (“NTIA”) sought judicial review of the scheme’s introduction in the Court of Session on the grounds of disproportionality and discrimination, but the NTIA’s attempt to delay the roll out failed on the very day that the enforcement delay was announced by the Scottish Government.

The NHS Scotland COVID Status App (“the App”) went live on Thursday 30 September, less than 48 hours before the law came into force. Almost immediately following the App’s launch, users began reporting problems accessing and using the App. The scheme, which was already unpopular with both businesses and a substantial proportion of the general population, was once again making headlines for the wrong reasons. The Scottish Government announced that the difficulties with the App were likely to have been caused by the volume of people trying to access it (they reported that 70,000 had downloaded the App by the day following its launch; just 1.2% of the Scottish population). It transpired that the backend NHS systems had been unable to cope, so within hours of its launch the overall scheme was once again beset by problems. It took several days for the required fix to be made. 

The scheme has been widely criticised by businesses and individuals whose data and vaccination status and private medical information is to be subject to scrutiny. Businesses argue that the App is not fit for purpose - with venues across Scotland claiming that users have been left confused over the Scottish Government’s roll out with very little public information and a lack of engagement with businesses prior to its implementation Opposition parties have urged the Scottish Government to scrap the scheme altogether, with the Scottish Human Rights Commission claiming that the scheme could discriminate against the deprived and minority ethnic groups.

Despite the widespread criticism, the scheme still came into force on the 1 October with enforcement to follow on 18 October. For the foreseeable future the scheme looks set to stay. Businesses will have to grapple with the legislation and figure out how to implement the checks required as well as absorbing the costs of doing so; be it employing additional door staff to carry out the physical checks (in a sector where there are already staff shortages), providing smartphones to staff to enable them to scan QR codes on customer’s phones or increased marketing costs to inform and educate customers of requirements.

What is required of businesses?

The Regulations and guidance for businesses stipulate that from 05:00 on 1 October, individuals must show proof of full vaccination status (double-jabbed) at venues and events outlined above. These venues are responsible for having a ‘reasonable system for checking and restricting entry’ in place. There are different requirements in place for different events/business, meaning that large events (such as football matches) have a dispensation to check 10% of customers, as they argued that there were too many fans to physically check in a short period of time. Nightclubs and other businesses on the other hand do not benefit from this dispensation. By way of example, a club with a capacity of 1,806 and only two doors has to physically check 900 customers per door on entry, whereas, Ibrox has 103 turnstiles and takes around 50,000 fans, meaning that they only have 500 per turnstile to check.

Businesses and event organisers are also responsible for developing a ‘Compliance Plan’ by 18 October. This should outline the system that the business will use for checking vaccine status. A template Compliance Plan is available for use on the Scottish Government website. If a business fails to have a reasonable system in place then they will have committed an offence and risk having their licence reviewed/revoked. A Compliance Plan must be in place and available to a Local Authority Officer (“LAO”) on request. The LAO has the power to enforce the scheme in a proportionate, risk-based manner. What this means in practice will remain to be seen.

The Scottish Government has received widespread criticism of this scheme, and it will interesting to see whether the initial problems faced by businesses can be ironed out in time for 18 October and whether the Regulations provide businesses with the essential guidance that they have been seeking. The scheme’s overall success will also be subject to public scrutiny, like so many government policies implemented in the wake of the COVID-19 Pandemic.

Contact our expert retail and leisure solicitors who can provide further specialist information or to learn about the full suite of legal services we provide to the Leisure sector.

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