The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment Regulations 2022 and The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 2) Regulations 2022: business and regulatory impact assessment
This business and regulatory impact assessment (BRIA) considers the impacts for businesses and consumers of amending the definition of fully vaccinated to include the requirement for a booster vaccination if a person’s primary course of MHRA vaccine was more than 120 days ago and amending the definition of late night venue.
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We have not undertaken any public consultation on these updates to existing measures which resulted in the above regulations changes. However, Scottish Government Ministers and officials have continued to engage with a wide range of sector representatives, to date at roundtables and over 20 sectors and stakeholders (Annex A) from a range of specialisms, including events, music, sport, hospitality, cinema, theatre, music, museum, rural and the night-time economy, as well as business organisations, trade unions and the legal profession. They have represented the views of businesses; their diverse feedback has been considered and has informed this impact assessment.
Through this engagement a number of key themes emerged.
Direct Costs to ensure compliance and enforcement
There are continuing concerns about having enough staff to implement the current scheme, given that the affected sectors are already facing a shortage of qualified stewards and front of house staff in general, as well as concerns for staff safety from both Covid and potentially dissatisfied customers/public order issues. Discussion with Securities Industries Authority (SIA) have noted however that there is a historically high level of licenced staff presently in UK but a significant number of these are currently working in other sectors. Licenced premises do not need to use SIA licenced members of staff to conduct checks of proof of vaccine status or record of test results or to refuse entry or service to customers who do not meet Covid Status Certification requirements.
However this does not remove the need for SIA staff from venues which already require them as part of their licence or insurance conditions. Also premises will want to carry out appropriate risk assessments to determine whether SIA staff are required in their circumstances.
Costs were a concern mentioned by many: costs of new scanners, as stakeholders consider that it would not be appropriate for staff to use personal phones to scan QR codes; additional staffing costs; and other infrastructure. Upon providing stakeholders with further information about the technical infrastructure, the cost infrastructure concern reduced, but the staffing issue remained live.
Businesses are also concerned about the potential increase in the cost of their insurance if they are unable to staff doors with qualified door staff, which for some may be a condition of their insurance cover. The hospitality industry reported that it can take up to 3 months to complete all training and checks for newly trained and accredited door staff, SIA have confirmed the number of SIA trained staff has increased.
Complexity, Justification and Communication of the policy
The amendments are not extending the scope of the existing scheme and it is therefore anticipated that there will be minimal additional requirements and associated costs and resources needed to ensure appropriate compliance.
There is generally a request from sectors for better information about how any amendments to the scheme would work on the ground, and for clear guidance for all businesses impacted on how to deliver the Covid Status Certification successfully. Sectors in scope (hospitality) stated that previously SG's communications campaign had not been effective. Stakeholders seek a clear communications and marketing programme to ensure that there is a clear understanding of which venues are in scope and how the scheme will be implemented and enforced.
Legal Processes and equality issues
The night-time sector has raised concerns that they may face legal challenge on equality grounds from any customers who they are required to refuse entry, Scottish Government is not aware of any challenges to date, however, the introduction of LFDs could be seen as a way to mitigate many of the equality issues given the wide availability and access to free LFD tests across Scotland.
Following the First Minister's announcement to include LFD testing from 6 December, the following was released:
Scottish Chambers of Commerce (SCoC) – 23 November 2021
Dr Liz Cameron, Chief Executive of the Scottish Chambers of Commerce
"Businesses across Scotland will be incredibly relieved that the First Minister has listened to the concerns of the business community.
"Although this will have been a difficult decision on balance for the Scottish Government, it was the right one, and it keeps Scotland moving in the right direction. It is now essential that businesses and individuals continue to follow the relevant COVID-19 restrictions and guidelines to ensure our economy remains open and growing.
"Businesses and consumers will now be reassured that they can make plans over the coming weeks in the run up to Christmas and New Year, without the fear of additional economic deterrents or vaccine certification burdens being placed on them.
"Scotland's businesses continue to do everything they can to support public health measures and to limit the spread of the virus, having invested millions into making workplaces Covid secure for employees, customer, suppliers and communities."
On Lateral Flow Tests:
"We are pleased that the Scottish Government have looked again at the available evidence and have acknowledged the clear benefits that LFD's provide.
"This is what businesses were calling for and it will also significantly ease and improve access to hospitality settings for consumers.
"Scotland was one of the few countries in Europe, where a vaccine certification scheme is in place, to not accept evidence of a recent negative Lateral Flow Test (LFD) in lieu of an individual's Covid vaccination status and confirmation that this will change from next month will be very welcome news for businesses, employees and customers."
Federation of Small Business (FSB) – 23 November 2021
FSB on vaccine passport Covid decision:
Andrew McRae, the Federation of Small Businesses (FSB) Scotland policy chair, said: "It's a relief that Ministers have taken on board the evidence from the FSB and others. Extending the vaccine passport scheme would have meant many local and independent Scottish hospitality and leisure firms making big changes to how they operate during a key trading period. These businesses will now have a weight off their shoulders.
"Feedback from our members showed that small cafés, restaurants and similar operators were worried that the extension would have put pressure on staff and driven up costs. It would have undermined many of these firms' plans for the festive period, many of whom are amongst the businesses hardest hit by this crisis.
"We agree with the First Minister that citizens, government and businesses of all sizes have a role in keeping this virus under control. That's why we'd urge all smaller firms to look again at the current Covid rules and ask themselves if they're doing everything in their power to play their part."
Confederation British Industry (CBI)
Tracy Black, CBI Scotland Director, said:
"Businesses still working hard to get back on their feet will welcome the Scottish Government's decision not to expand Covid certification. Many firms would have faced practical challenges and increased costs to implement measures at a time when bumper trading is needed to clawback lost or diminished revenues.
"Today's decision strikes the right balance between managing the virus and protecting our economic recovery.
"However, we cannot afford to lose sight of the fact that COVID-19 remains a threat. That means redoubling our efforts on mass rapid testing, maximising world-leading vaccine uptake, and continuing to deliver Covid-secure workplaces to keep staff and customers safe, and the economy open."
The Scottish Tourism Alliance (STA)
Marc Crothall, Chief Executive of the Scottish Tourism Alliance said:
"The Scottish Tourism Alliance welcomes the First Minister's announcement that vaccine passports will not be extended to the hospitality sector and that alternative measures can be used within businesses already implementing the scheme.
Our organisation has, since the outbreak of the pandemic, been in full support of evidence-based measures to balance the protection of public health and the economy, the proposal to extend vaccine certification to hospitality was in our view harmful to the sector, the wider tourism economy across all areas of Scotland and would have effectively stalled what is already a long and challenging road to recovery for one of the worst hit industries.
The next few weeks are crucially important to the sector in terms of recouping lost earnings as a result of the introduction of previous restrictions; I am sure that many businesses will feel a sense of overwhelming relief that they will be able to trade as planned.
The STA and other trade bodies and business groups had been consulted in the proposals to extend the vaccination certification scheme and I am delighted that the collective views and evidence we have presented have been given the thorough and due consideration we expected.
The feeling of optimism across our tourism and hospitality sectors was significantly eroded following the First Minister's announcement last week with businesses looking towards weeks and months of immense challenge and uncertainty.
We can now hopefully look forward to a thriving season ahead, one which is pivotal to our economic recovery and I know that all businesses within our sector will be doing their utmost to ensure public safety and limit the spread of the virus to ensure a safe and buoyant festive period
The STA will encourage our members and the wider industry to promote testing to their customers in a supportive, positive manner and we look forward to our continued conversations with both governments as we navigate the road ahead back to recovery."
Scottish Hospitality Group – 23 November 2021
The Scottish vaccine passport scheme will not be extended, at least for the time being, the First Minister revealed yesterday. The news came after weeks of lobbying by all Scotland's trade bodies.
In further good news, the First Minister also said that venues such as night clubs and late-night venues, who currently require a vaccine passport, from December 6th, can ask customers to show a negative lateral flow test instead. Although the NTIA is still campaigning to have the need for Vaccine passports in late night venues to be removed completely.
After the announcement Stephen Montgomery of the Scottish Hospitality Group said, "The announcement is very welcome news and gives the trade some stability coming into the Christmas period and allows customers to come out and enjoy themselves. It is a sensible decision based on the evidence
"We have said all along that working in partnership with us makes for a better result.
"I would like to thank the First Minister, Ivan McKee, Jason Leitch, and officials, for listening to our issues and for meeting us. We now look forward to working with them to further iron out the issues that the current vaccination scheme still has."
The Night Time Industries Association Scotland's said, "Whilst NTIA Scotland remain opposed to the continued application of vaccine passports in late night settings, we are encouraged by Scottish Government's decision today that the scheme will not be rolled out further at this time. This is a sensible and pragmatic decision which takes into account the extraordinary harm businesses have suffered as a result of restrictions over the last 2 years, the lack of evidence that this scheme has any meaningful impact on vaccine uptake, concerns around human rights, and also recognises that the current trajectory of infections and hospitalisations is falling.
"Vaccine passports have however been devastating to businesses already affected, with turnover down around 40%, so we now call on Scottish Government to urgently review whether continued application of the scheme is either necessary or proportionate and provide urgent financial grant support to those businesses that remain in scope of the scheme.
"It is a positive step in the right direction that Lateral Flow Tests will now be included as an alternative to double vaccination, which will safeguard late night venues in particular, and is something the trade body has advocated for from the inception of this scheme.
"This brings Scotland in line with other European nations, and partially alleviates at least some of the equalities and social exclusion harms that were previously the case. However, the experience in Wales indicates that affected businesses, even with LFT inclusion, have still suffered a 26% decrease in trade.
Our sector are working positively and constructively with government to increase public awareness and maximise Covid safety during the vital Christmas trading season."
On the 1 October the Scottish Government introduced the Covid Vaccine Certification. The requirement for persons responsible for late night premises or a relevant event to ensure a reasonable system is in operation for checking Certification came into force on the 18 October 2021.
The Scheme was introduced in line with our strategic intent to 'suppress the virus to a level consistent with alleviating its harms while we recover and rebuild for a better future' and the policy objectives were to:
- reduce the risk of transmission of Coronavirus
- reduce the risk of serious illness and death thereby alleviating current and future pressure on the National Health Service
- allow higher risk settings to continue to operate as an alternative to closure or more restrictive measures
- increase vaccine uptake
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