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Managing queues outside your licensed venue can be a constant challenge.  Where does your responsibility begin and end?

Legislation

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 

It is worth noting that, aside from dealing with mass gatherings, the restriction regulations do not explicitly deal with social distancing in the context of licensing.  Therefore the sanctions mentioned in the regulations do not necessarily apply to queuing.

Health & Safety at work (HSAW) legislation

Strictly speaking, HSAW legislation is limited to the workplace and aims to protect customers and employees from harm.  HSAW legislation does therefore not extend to the public realms.

Where therefore does this leave a premises licence holder in relation to the management, and responsibility thereof, for queuing outside their venues?

The answer is unfortunately not straight forward.  It is an established fact licensed venues, like all other businesses, must undertake thorough Covid secure risk assessments.  Clearly, queues outside licensed premises forms part of the operation of that business and therefore risk assessments must include measures to manage queues.

In light of the lack of clear statutory provisions, licensed businesses can only be expected to do what is reasonable to manage queues in a Covid secure way and there is also a responsibility on the wider public to play their part ensuring social distancing.

Before I look at practical considerations for premises licence holders, a quick note on enforcement.

I have already indicated that neither the restriction regulations nor the HSAW legislation would, under normal circumstances apply.  It might be arguable that review proceedings under Licensing Act 2003 might be appropriate if it can be shown that poor management is compromising public safety, causing children harm and/or causing a public nuisance. 

Practical considerations for premises licence holders

As I said above, premises licence holders should take reasonable steps to manage queues outside their venues but there is an expectation that customers should take responsibility to ensure they adhere to general social distancing advice and Government direction.

When premises licence holders face complaints and investigations, good due diligence will be vital.  Some points to consider are:

  1. Make sure your Covid secure risk assessment is robust and clearly sets out your actions.
  2. Make sure you follow Government advice and reference this in your own Covid secure risk assessments.
  3. Do what you can to facilitate social distancing outside your venue. You can only be expected to do what you can, customers must also take individual responsibility.
  4. What you can do will vary depending on your own business however general things that can be implemented to facilitate social distancing when queuing includes:
  • Markers on the floor
  • Barriers
  • Signage and reminders at regular intervals
  • Using door staff to help manage queues
  • Consider earlies closing times (or ‘No readmission’ times)
  • Introducing a booking/reservation system

A final word, whilst the statutory provisions around social distancing and queuing is not entirely clear, there is a broader consideration.  If your venue is linked to a local outbreak, your business is likely to be subject of a locally enforced closure and will suffer reputational damage.  This could hold more severe repercussions for your business and enough incentive to take this matter sufficiently serious.

Stephen McCaffrey

Regulatory defence barrister specialising in alcohol and entertainment licensing law, appeals and defence.

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