Stephen McGowan

As of Monday 16 March 2020, the Scottish government recommends that all large gatherings or mass events of 500 people or more be cancelled or postponed.

Status of the guidance
The guidance has no legal force. At this stage, there is no law which prohibits events where 500 people or more may attend and the status of this is directory, not mandatory. That may change, but for now, it is a matter for individual premises owners or event organisers to take a decision. We are aware of numerous cancellations or postponements of specific events and we have no doubt that the licensed trade and hospitality operators will continue to act responsibly, in line with responding to the wider public health issues which have been brought upon society, and will reflect on the government advice very carefully.

That being said, we have already had numerous queries from a variety of clients, unsure about what their position is in relation to opening/operating venues, and the legal and contractual implications for cancellations. Operators understand that these considerations may be secondary to the wider public health issue, but nevertheless they are real implications which need to be resolved.

The policy rationale
The government has been clear that the rationale for targeting these larger events is not simply the risk of infection, but the perceived link between larger events and the burden they might have on emergency services. That makes sense to those who understand that large events like music concerts or football matches will have a number of dedicated resources assigned to that event. However, it is less clear whether other types of event, such as a typical Saturday night in a nightclub, or attendance at a theatrical matinee are being targeted here. In those two examples, there is no up-front dedicated resource from Police Scotland or the ambulance service, who would only attend on a reactionary basis in most cases

What is a “mass event?”
The definition of “mass event” includes: “sporting events, cultural events, and religious gatherings”.

The ban/recommendation is not designed to stop “routine activities” such as “school, travel, shopping and work”. It also goes on to state that the recommendation does not apply to shopping centres. The guidance says:

“The definition of a mass event for the purpose of this advice is any event with more than 500 attendees. We expect all organisations and bodies in Scotland to operate responsibly in this unprecedented situation, and to take appropriate action in response to this advice.”

The guidance goes on to say that even smaller events should be cancelled, if the event was to have an effect on emergency services. This leaves us to consider whether this applies to certain licensed premises where there may be no dedicated “event” per se, such as large sporting event or concert, but simply a public space such as a nightclub opening as normal. It also leaves us to consider where other types of gatherings such as theatrical performances, concerts or sporting or conference events might be caught.

Does this apply to nightclubs or large entertainment premises such as theatres, bingo clubs or conference venues?
There is no clear answer to this in the guidance. Our view is that operators will need to react to this on a risk assessed basis having regard to the latest government messaging whilst also taking into account the impending commercial realities of whether it is feasible to remain open, as footfall becomes affected in the coming days, weeks, and possibly months. Where a premises has a capacity above 500 it may be considered appropriate to limit capacity on a voluntary basis during this unprecedented period.

Contractual implications
Certain venues may be obliged under contract to provide event space, or have a premises in operation. A guide to the legal concept of “force majeure” and the coronavirus has been produced by our Commercial team, which offers further information on how contracts might be impacted.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.

Stephen McGowan is a partner at TLT LLP