COVID-19 Recovery Committee

Meeting date: Thursday, September 16, 2021

Official Report 606KB pdf

---

Vaccination Certification

At item 2, we will take evidence from a range of stakeholders on vaccination certification. I welcome to the meeting Neil Doncaster, the chief executive of the Scottish Professional Football League and a member of Scottish football’s Covid-19 joint response group; Gavin Stevenson of the Scottish Licensed Trade Association; and Dr Catriona McMillan, the convener of the Law Society of Scotland’s health and medical law sub-committee.

On 1 September, the Scottish Government announced its intention to introduce and put in place a vaccination certification system by 1 October. The purpose of today’s meeting is to take evidence from stakeholders on the proposed scheme. Some of its details are still to be worked out, so we intend to listen to your views and feed them back to the Scottish ministers directly in our regular evidence sessions with them. Any issues that you raise will also inform our scrutiny of any relevant legislation that is introduced to give effect to the scheme. Your input is very valuable to the committee.

I will ask the first question. What are the key issues for the committee to consider in scrutinising the implementation of the proposed scheme?

Good morning and thank you for the opportunity to give evidence to the committee today.

In managing the recovery from the pandemic, we must think about the management of the spread of the virus. In light of that, we understand that the Government proposes to introduce regulations for a mandatory vaccination certification scheme on 1 October. I will briefly go over some of the key themes and issues that we have highlighted in our written evidence. We note that the regulations for the proposed scheme are likely to be subject to the made affirmative procedure. That has been necessitated by the pandemic, but any regulations must still be subject to appropriate scrutiny and review.

Some of the areas of law that would be engaged by the proposed scheme are uncertain and developing at the moment. When the nature and scope of the scheme becomes more apparent, so might the extent of the legalities that are engaged by it. A vaccination certification scheme would potentially engage, for example, human rights law in a number of ways. That needs to be kept front and centre. Measures must be necessary and proportionate—that is key to any steps that are taken in certification and must be kept in mind when it comes to any proposed regular review.

Any certification scheme must also be mindful of equality and discrimination law, and the groups that might be disproportionately affected by such a scheme. Further, due to the sensitive nature of health data that might be processed, it is also important to carefully consider the implications for privacy and data collection law.

Generally, the key to good lawmaking in this area is clarity, consistency and—[Inaudible.]—as it is with lawmaking in every area. As we have noted, there is some scope for uncertainty, and we suggest that it is important that the scheme has clear definitions of key terms such as “nightclub” in order to give certainty to those acquiring certification and the various sectors that are involved.

Good morning. From the Scottish Licensed Trade Association’s perspective, there are a number of potentially very problematic issues with the scheme that have not yet been worked through. Although we are engaging with the Scottish Government and civil servants on those issues, it would be safe to say that the very tight timeline for implementation and the late notice in getting clarity on the scheme are likely to present some fairly material challenges.

There are specific issues that require further scrutiny. We must consider the financial and economic impact of the scheme and the key differences between this scheme and those that have been applied in other countries. That topic certainly raises some challenges.

Another issue relates to the definition of “nightclub” and the scope of the premises that are to be included. The current working definition that is being considered by the Scottish Government might include as many as 2,000 premises across Scotland, not just the 100 or so genuine nightclubs.

Another issue relates to market distortion and unfair competition. No matter where the line is drawn, if we include some hospitality premises and exclude others, it seems inevitable that a significant proportion of customers will move from one type of premises to another.

Another issue relates to discrimination and equity. We can see from the vaccination uptake data that there are significant differences in vaccination rates among different socioeconomic and ethnic groups in society. A potential outcome of the scheme is that business owners could be asked to refuse entry to some groups of people at significantly higher rates than others.

Another issue relates to resources and risks. We are aware that there are severe staffing shortages throughout the hospitality sector and many other sectors, but there is a particularly acute shortage of door stewards. If we are looking to control entry into premises, the resources simply do not exist to significantly expand door stewarding capability and capacity across the sector. We should not forget that, even if we are just talking about the 100 nightclubs, we are potentially talking about a crowd every Friday and Saturday night across those venues that is equivalent to the numbers at Ibrox or Hampden park. It would be virtually impossible to magically increase stewarding capacity with 14 days’ notice.

The final issue relates to communication and goes back to my point about definitions. The expressed communication from the Scottish Government and the First Minister is that the policy will apply to nightclubs but not to wider hospitality. Given that the current definition includes the majority of late-opening pubs and bars—thousands of venues across Scotland, not just 100—there is serious potential for miscommunication to cause large issues in the first few weeks of the policy’s implementation, because the majority of people will not anticipate the need to get their vaccination passport in order to get into a wide variety of premises, not just nightclubs.

I will leave it at that for now. I hope that we can discuss those issues in more detail later.

Good morning. It is a privilege to be invited to give evidence to the committee.

Now that the Parliament has voted to introduce vaccination passports, all my focus is on the practical challenges that Scottish football faces in working with those passports. I hope to suggest ways in which the passports can work in a practical, workable and pragmatic way. Gavin Stevenson has already pointed to the very tight timescales that are involved, with implementation in a couple of weeks, so clubs need to plan for what could be dramatic impacts on how fans will enter stadia.

Our view is that, if this measure is to apply to crowds of more than 10,000, that should be the expected rather than the potential number and if, as clearly everyone seems to accept, spot-checking is the way forward, we believe that in phase 1, when clubs are getting to grips with the roll-out, there should be no fixed percentages or numbers that clubs should have to spot-check. Vaccination passport checks should be carried out in a way that ensures that there are no bottlenecks, because any such delays in getting into the stadium will potentially lead to unhappiness among fans and tempers being raised.

We are keen to work with the Scottish Government to ensure that vaccination passports are introduced in a safe and measured way. It is important that we let clubs work with their local safety advisory groups on the details of how their own spot-checking schemes will work in their own stadium infrastructure. Moreover, with the huge variation in information technology infrastructure across stadia, we believe that the way forward is to have stewards visually check the passports that are presented to them instead of there being an insistence on a particular type of technological check, which, given the timescales, would be untried and untested.

Thank you, Mr Doncaster. Your feedback is appreciated.

I invite Murdo Fraser to begin the questioning from members.

Thank you, convener, and good morning, witnesses.

In his opening remarks, Neil Doncaster said that we are looking at a very short timescale for this; indeed, I think that the first weekend that it will apply will be that of Saturday 2 October, which in effect gives us two weeks. How realistic is it for clubs to bring these measures in, given that, at the moment, we seem to have very little clarity as to what exactly will be required of them?

It is for that very reason that I am suggesting that clubs be allowed to manage this in a proportionate way that works for them and their stadia. You are right to highlight the first weekend of these measures, because we have big games between Aberdeen and Celtic, and Rangers and Hibernian, with very large crowds expected. It is important that, on the first weekend of the implementation of vaccination passport checking, a light-touch approach is adopted to minimise inconvenience and disruption and ensure, as far as possible, a smooth flow of fans into stadia. That is why I am strongly suggesting that clubs be allowed to introduce spot-checking in a way that suits them and their stadia.

Thank you for that response. It occurs to me that whatever system is put in place will require significant additional resource from clubs, for example to provide additional stewarding. That in itself will not be easy, and the requirement to recruit additional stewards at short notice at a time of significant labour market issues might well present a significant challenge. Have there been any discussions about how stewards might be found and trained? Are you aware of any assessment that has been done of the additional cost to clubs, should these measures be required?

09:30  

Yes. Those are good questions. As has been pointed out, there is a shortage of security staff and stewards. It is clear that, creating an outer cordon, which we believe is the only realistic way to implement such a spot-checking scheme, will require a great many more stewards. I have had discussions with a number of the clubs that have been involved, and they believe that the costs, purely for stewarding and infrastructure, will be upwards of £5,000 per game. That is before any technology costs and, at the moment, it is difficult to put a figure on those. There are significant costs per game that will affect all clubs where the crowd is likely to be bigger than 10,000, and that will include Scottish Football Association and SPFL games. Those games will require large numbers of additional stewards, and, certainly at the moment, it is not clear how easy it will be to find the stewards. The only certainty is that there will be considerable additional cost. We are in dialogue with Scottish Government officials about the extent to which there might be support with those additional costs.

I have been contacted by individuals living in England and Northern Ireland who have season tickets for Scottish clubs and who hope to travel to Scotland in two weeks’ time to attend a football match. However, as things stand, I understand that there is no technology that allows those who have certification from outside Scotland to be permitted to access Scottish events. Do you have any clarity about that issue, or do you have any sense of how that will be resolved?

Again, you are right. It is one of the many unanswered questions. It is not clear how any technology under development will work with clubs’ IT infrastructure. That is another reason why, in our view, a visual check is the way forward rather than reliance on untried and untested technology, certainly at the introduction of the scheme on 1 October. A light-touch approach, with stewards conducting a visual check of what is presented to them by fans gives us the best chance for a smooth roll-out and introduction of the scheme on 1 October.

Mr Stevenson, you were laying it on pretty thick that this is going to be impossible to do, but the reality is that loads of other countries have vaccination passports. I think that Greece started its system in July, and France, Switzerland and many others have such a system. They seem to have managed it, so what is the big problem here?

One of the biggest concerns is that, where other countries have implemented vaccination passports, they appear to have done it with a significantly longer lead-in time, rather than presenting the final details to the general public and businesses a few days or a week before the system is expected to be implemented. In addition, the examples that we have looked at show that, when it comes to the types of premises that require a vaccination passport for entry, the vaccination passport schemes in those countries are nearly universal. We certainly have not seen examples where there would be significant confusion created about premises types and such limited applicability.

To take the French scheme as an example, you need a vaccination passport to get into a restaurant, to get a cup of coffee in a cafe and to get into museums and cultural heritage sites. In essence, it is universal. If you wish to do anything, you must get one. That leads to vaccination passports being taken up across wider society very quickly, and the message is clear.

The Scottish Government’s current proposals mean that people might or might not have to have a pass to get into nearly identical premises on the high street in the hospitality and late-night sectors, but the general public have been told that people will need a pass only to get into a nightclub. About 95 per cent of the public do not go to nightclubs regularly. However, under the current proposals, people would need a pass to get into the majority of pubs and bars and even some cultural spaces. That has simply not been communicated.

Those are the two major differences.

I take your point that, in a sense, the wider the system, the simpler it is. I understand that the idea was that the system should be quite narrow so that it affects fewer people. Is it your argument that it would be better to say that people will need certification to get into any premises that serve alcohol and are open after a certain time—say, midnight? That would include not only nightclubs but pubs and restaurants.

That approach might make things clearer in some regards, but it would make things more confusing in others. A practical consideration is that many premises open at lunch time and remain open until 3 o’clock in the morning. We call them hybrid venues. Such a venue might start with a food offer during the day, turn into a cocktail bar in the early evening and then turn into a proper nightclub later on. If there were 500 people in that premises at the cut-off point at 7 pm, would vaccination passports be checked only after that time? If so, people would simply come in before that time. If premises need to check vaccination passports at all hours, what would be done about the lunch crowd? Those people might expect to just show up and have lunch; they would not think that they were going to a nightclub. That is the challenge.

The policy is not clearly defined or universal, so there are a number of fundamental difficulties relating to management of customer expectations and uptake of vaccination passports among the general public.

I still wonder whether you are slightly overstating the case. Lots of the restaurants that I go to throw out all the younger kids at a certain time—9 or 10 o’clock—so such things can be done.

One of Mr Doncaster’s arguments was that people at football matches are mainly outdoors, so certification should not be needed. Do you accept that we are now going to have such a system? I presume that most people have to use public transport to get to football stadiums, and there is a fair bit of space inside stadiums where people eat, go to the toilet and so on.

We have to be pragmatic. Parliament has voted to introduce vaccination passports from 1 October, so my focus is on ensuring that whatever has to be put in place by clubs, the Scottish FA and the SPFL is workable, practical, pragmatic and, ultimately, proportionate to the issues at hand. I am focused on ensuring that fans who go to the large games on the first weekend after 1 October are not unduly inconvenienced, that there are no bottlenecks and that clubs are given the space and time to bed in a system.

When we last had an outer cordon at a Scottish football stadium, it was at Hampden park during the Euros. However, there were months of planning to allow the physical infrastructure to be built and stewards to be recruited. There were also test events beforehand to ensure that everything went smoothly. In the current circumstances, one of the clubs that we have spoken to is meeting its local safety advisory group only today, so that group has been unable until now to furnish the club with details of what is required.

In the very short time between now and 1 October, the clubs, the SPFL, Police Scotland and the local safety advisory groups will need to work together to ensure what is put in place is proportionate. A light-touch approach for phase 1 of introduction of the scheme seems to be the right way forward.

One football fan suggested to me that, as a season-ticket holder, there could be a one-off check of his vaccination certificate for the whole season, so that he would not need to be checked a second time. Is that approach feasible?

No. In most cases, physical cards—whether season books or tickets—can be passed from fan to fan, so it is hard to see how such an approach would work. Many of the fans who turn up to matches will not have smartphones and might not even have mobile phones. We need to ensure that the system works for everyone who attends games. Our audience is quite mature, and many of them will not have the technology to enable them to show an app on a smartphone. Therefore, a visual spot check of whatever evidence a fan brings is a proportionate way to introduce the scheme.

You suggested a visual check. Would that not make it even easier for somebody simply to copy a QR code? The point was made that you could not check the connection between the passport, or certificate, and the ticket for the game. Is that the case? Could a certificate just be copied and a lot of people use the same one?

That is one of the concerns that exists about the introduction of any scheme. The scheme is clearly designed to encourage take-up of the vaccine among the Scottish population. Our priority is to ensure that whatever is put in place does not lead to bottlenecks outside stadia. We have overwhelmingly brilliant and passionate fans, but with literally tens of thousands of fans walking up to stadia in the minutes before kick-off, it is easy for bottlenecks to be created if we create an outer cordon. We need to ensure that we do not inflame tensions in the minutes before kick-off.

I am a passionate fan but, sadly, my club does not get 10,000 fans.

On spot checking, I think that you said that you do not want a fixed percentage. Can you suggest what percentage of fans would be spot-checked if that approach was taken?

No—that should be a matter of discussion between the club and the local safety advisory group. They are the specialists who have a good understanding of the stadium infrastructure. Police Scotland will be part of each local safety advisory group and will, together with the club, be best placed to put in place whatever percentages or numbers are deemed to be appropriate.

My strong view is that, in phase 1 of the scheme, which will be rolled out literally within a couple of weeks, we should have a light-touch approach to enable clubs to let the system bed in, and to create the incentive that the Scottish Government clearly wants to create for more people to take up vaccination, without creating a higher risk of problems at turnstiles.

My next question is for Dr McMillan from the Law Society. I was interested in what your submission says about the concept of discrimination. You suggested that there had been a case—I will not even try to pronounce it, but it was in the Czech Republic—in which the courts said that it was not discrimination and that it is legal to have passports, certificates or something along those lines. That case particularly affected children.

On the other hand, you raise the point that introduction of a certificate could be discrimination under the Equality Act 2010 because certain groups have not been vaccinated. Will you tell us where you are with that? Is the law changing? Are we uncertain?

As I highlighted, the law on that area is definitely evolving. It has done so this year in particular, with that case from the Czech Republic.

Unfortunately, there is not a categorical answer but, as we mention in our report, it is uncertain whether things such as anti-vaccine beliefs would be considered as protected characteristics under the 2010 act. We note that, in other contexts, beliefs such as vegetarianism have not been considered as being protected in employment, for example, but others, such as ethical veganism, have been considered as being protected.

09:45  

Of course, we now know from the Czech Republic case that a critical stance on vaccination does not amount to a breach of rights under article 9 of the European convention on human rights, which is freedom of thought, belief and religion. We raise that because, although the extent to which the regulations will engage with equalities law is not clear, it is of note that certain groups, who have lower vaccine uptake, are protected by the Equality Act 2010 and, thus, might be disproportionately affected by the regulations.

People in parts of the population who are not vaccinated are at greater risk, so I presume that, from a health point of view, there is a good purpose behind the scheme. However, you are saying that despite the good purpose of encouraging people to get vaccinated, it could fall foul of some of the 2010 act.

Yes, there is potential for that. However, as I said, the legislation is in development at the moment.

Therefore, from a legal point of view, would it be tidier, neater and better if we were just to close all the football stadia and everything else at midnight, because that would be fair and would treat everybody equally?

I am not sure whether that is the case. I cannot give a categorical answer on that now; let me take that back to my colleagues.

Thank you.

My question is for Dr McMillan. With regard to how the legislation has been brought forward, are you satisfied that the Government has clearly set out the evidence and the science that sits behind what it proposes? When the Public Administration and Constitutional Affairs Committee at Westminster looked at the matter from the UK Government perspective, it concluded that the scientific evidence was not there and that such a major step should require primary legislation. Given that the legislation was rushed through and Parliament was divided along political lines, are you satisfied that the evidence has been provided?

Of course, any such scheme requires a basis in clear evidence, and there should be no more interference in matters such as human rights or equalities law than is absolutely necessary. It is perhaps worth noting that potentially viable and less restrictive alternatives, such as evidence of a negative test, are not part of the proposed scheme. As we mention in our response, clarification as to why those alternatives have been excluded would be welcome.

Do you believe that the objective of the legislation, as well as what the Government thinks it will achieve, is clear to the public? Is it clear how the Government will measure the outcomes that it is trying to achieve? Has the Government brought forward the scientific evidence to back that up and to demonstrate that the scheme is the best way to achieve those outcomes?

From what I have seen so far, it is clear what the scheme is trying to achieve. Because of the rapid implementation of the scheme, several key issues, such as definition of terms, need to be ironed out. However, as a lawyer, I cannot necessarily speak to the quality of evidence that has been given.

Thank you. I assumed that the Law Society would want to ensure that the legislation that is going through Parliament is first of all clear; secondly, that it is supported by evidence; and thirdly, that it is going through the most appropriate route.

If the Government comes back in two weeks and says that the scheme will be extended to attendances of more than 8,000 or 6,000 or 4,000 at a football game, would we be satisfied that it has gone through the correct measures? Was the House of Commons Public Administration and Constitutional Affairs Committee correct when it said that the scientific evidence for that step is not there and that it should come through primary legislation so that it can be properly scrutinised and understood by the public?

To be clear, we agree that any legislation needs to be clear, to be supported by evidence and to go through the proper procedures. If there is not proper evidence, that issue needs to be discussed further.

Are other panel members clear on what the Government expects to achieve? In the industries that you represent, which are football—I assume there are around four clubs in Scotland that get crowds of more than 10,000—and nightclubs, was there a problem in understanding what the Government is trying to achieve? Do you believe that its approach is supported by evidence that those specific sectors are large spreaders and that there is a clear risk?

I am happy to answer that. It seems to be the case that in an outdoor setting, which football stadia clearly are, there is considerably less risk of transmission, but my focus is on dealing with the practical realities of Parliament having passed the introduction of vaccination passports from 1 October. The Scottish FA and SPFL’s focus is on Premiership clubs. We all want to play a part in supporting the Scottish Government to ensure that the introduction of vaccination passports on 1 October is successful in terms of driving greater take-up of the vaccine and helping the country to tackle the pandemic.

Has the SPFL considered that if the objective is to encourage younger people to take the vaccine, you should be on the front foot and having discussions with clubs about how to do that? Have any football players been prominent in refusing to get the vaccine? Could clubs do more to encourage younger people to take the vaccine? Is this the best way for the Scottish FA to improve vaccine uptake among football fans, or are there other ways that you could work with the Government to achieve the same objective?

Our football clubs have been vocal about the benefits of vaccination. Clubs and players have worked together to get as many players and backroom staff vaccinated as possible. A number of our clubs have had pop-up vaccination centres at their stadia throughout the pandemic. Scottish football is proud of how we partnered with the Scottish Government to play our part in tackling the pandemic. We all want to move forward to a situation in which we do not have to worry about vaccination and Covid rates in hospitals. Football has a key part to play in that; we believe that we are a strong partner in helping to tackle the pandemic.

Do you accept that there is evidence that football matches are a serious risk? The First Minister said that it was considering vaccination passports or much more restrictive measures such as cancelling games. Do you accept that?

The principle of vaccination passports has been debated widely. That is not a matter for me to comment on.

As I said at the outset of the session, my focus is on ensuring that whatever is put in place is practical, workable, pragmatic and proportionate. On behalf of Scottish football, we certainly hope that the detail that emerges enables clubs to implement vaccination passports from 1 October in a way that causes the minimum of fuss and interference for fans who turn up at games, and that the scheme helps the Scottish Government to achieve its objectives.

Has Scottish football had the opportunity to contribute to this? We talked earlier about footballers acting as role models, but have clubs been able to discuss this matter? You accept that the law has been passed, but other clubs could be affected by these measures next week, or the limit beyond which these measures would apply could be reduced to 6,000 or even 4,000 fans. Is there a better way that can be found? Have the clubs discussed this among themselves? Surely we should not just always accept such moves, especially if there are questions about the evidence. Are there better ways of reaching young people, and does football have a role to play in that respect?

I understand those who wish to continue to debate the principles behind the introduction of vaccination passports, but my focus is on looking forward and, on behalf of the game of football in Scotland, ensuring that what we have in place works well from 1 October. We understand the Government’s objectives, and we want to work with it to ensure that what gets introduced is proportionate. It is widely accepted that spot-checking is the way forward, and we are looking to work with the Government and looking for clubs to be part of the solution while ensuring that unnecessary inconvenience and bottlenecks are not caused at stadia from 1 October.

Mr Stevenson, are we any closer to having a clear definition of “nightclub”? How are the preparations going and what discussions are you having with the Government on introducing this measure?

It is clearly challenging to define the term “nightclub”, because there is no such definition in law or in licensing. Although we would all like to think that we know what a nightclub is—and, in fact, 100 or so venues in Scotland identify as such—the fact is that when we start to extract the easily definable characteristics of such premises types, we find that the same characteristics apply to as many as 2,000 other premises of different types. Communicating that is therefore very challenging.

It would be fair to say that there has been extensive engagement with the Scottish Government on this topic, but I am not sure that I would go so far as to say that it amounts to meaningful consultation. Obviously, we are keen to support the Scottish Government’s aims of increasing vaccination uptake and to operate our venues as safely as possible, but we would note that significant mitigations and baseline measures are already in place in Scotland. That is not necessarily the case everywhere in the UK.

We have not seen any evidence—or certainly any recent evidence—of the risks that are posed by nightclubs and, in particular, we have seen no studies that show the current risk of transmission in nightclubs with the current baseline measures and mitigations that are already in place in Scotland. That evidence might exist, but if it does, it certainly has not been presented to us.

I would note that some very common misconceptions have been repeated by people in the Scottish Government. For example, the Cabinet Secretary for Health and Social Care has expressed on radio a couple of times now his thoughts about nightclubs having poor ventilation or facing challenging circumstances in that respect. However, large nightclubs probably have some of the best ventilation systems of any premises type in Scotland, simply because of the nature of the business, and they invest heavily in ensuring customer comfort, which, to be frank, involves putting a lot of fresh air through those premises. We would be happy to demonstrate that to anyone from the public health teams and to arrange a visit for them to inspect these premises and discuss the ventilation measures that are already in place.

10:00  

On the evidence, we are not convinced that vaccination passports are a proportionate measure to take at this time. For our sector in particular, they come with unintended consequences that might be virtually impossible to overcome and might in fact be counterproductive to achieving the aims of the Scottish Government.

Is there clarity across the licensing trade about the measures that are already in place? A few weeks ago, I was in a restaurant and the rules were clear: when you went in, you had to have a mask on—there were signs telling you that—and you were able to use the app on your phone to clock in and register for test and protect. However, I have been in a couple of bars where there was none of that whatsoever. There seem to be similar differences on public transport and in other areas, so it is not just an issue for the licensed trade. My concern is that a lot of the measures that we have in place, such as social distancing and face coverings, seem to be on the wane. Do you find that? Is clear guidance and support available for publicans to ensure that the laws that are in place are able to help in the way they are meant to?

With any public health measure that involves asking the public to behave in a certain way, there will always be varying levels of compliance across a variety of settings. You mentioned public transport. On some occasions when I have been on public transport, virtually everyone has been wearing a face covering, but I have also been on public transport at times when virtually no one was doing so.

In our experience, there has certainly been a good effort throughout the hospitality sector to comply. However, it is also the case that it might be easier to observe that type of compliance in some settings than it is in others. For example, under the current guidance, there are the three D exemptions—that is, people do not have to wear a face covering if they are drinking, dining or dancing—and you will find that, in some premises, the vast majority of customers will be standing and drinking, which means that you will not see them wearing a face covering. However, in premises such as cafes and restaurants, people are not required to wear a face covering when they are seated and eating a meal but are required to put on a face covering when they stand up, which means that compliance might be more easily observable.

Broadly, the messaging from the Scottish Government on the topic of baseline measures has been fairly clear, and there has been good communication, through the trade bodies, to the sector to get the message out as widely as possible.

You are right to continue to make the arguments that you put forward, just as the Scottish Football Association is doing. This should not be a question of just accepting things.

How is the licensed trade recovering? Are we getting back to pre-Covid levels of jobs? I assume that you will overcome the passport stuff quite easily, but are there bigger challenges for the trade in the post-Covid period?

It would be fair to say that the licensed trade in general was the sector that was hit hardest in the past 18 months, except, perhaps, for the aviation sector. The businesses in our sector in Scotland are mostly locally owned small businesses that have had zero income for a significant period of time and then, when they were allowed to open, could do so only under restrictions. On average, they were trading at a loss for most of the time that they were open under restrictions, which means that they took less income than the amount that would be required to break even. That varied across the different subsets of hospitality. For example, a restaurant that usually closed at 11 pm and was, therefore, able to trade broadly as it normally would, might have been able to break even, but a nightclub that had to reduce its capacity by 50 or 75 per cent because of all-seated drinking would not have been able to break even, even when it was allowed to open during the restricted periods.

From the surveys that we have done across our membership, we know that the cumulative impact is that, on average, small business owners have taken on a huge amount of debt just to survive the pandemic—to keep their staff employed, the rent paid and the business afloat. For the smallest of pubs and bars, the numbers that we are getting back indicate that those small business owners have taken on debt that is roughly equivalent to three years’ worth of profits in normal times. In other words, they would have to work for three years for free, just to pay the money back. In cash terms, it will vary by the turnover and size of the premises, but a typical small pub or restaurant is likely to be somewhere between £60,000 and £80,000 in debt just now. The larger high street premises or nightclubs are in debt by more than £150,000 per premises. In order to stay afloat, survive and pay down that debt, those venues will need a clear run for years, without restrictions or any type of Government intervention that reduces their turnover or capacity, hence our immense concern about the approach that is being considered, which could have a serious impact on people’s attendance at such premises and, therefore, the turnover that they can achieve.

To say that, by and large, these businesses are in a precarious financial position, would probably be quite a dramatic understatement. They are just not in a position to survive any kind of shock to their income stream and cash flow. The policy that is being considered makes that kind of shock almost inevitable. We would certainly ask for a much greater degree of flexibility and much greater engagement and meaningful consultation with the sector to find workarounds for these problems, rather than having a policy that has been decided before all the implications have been fully thought through imposed on us in just 14 days’ time.

We will have the opportunity to ask scientific evidence-based questions in the next evidence session with the medical experts.

Good morning. Dr McMillan, it might be a bit like slamming the stable door after the horse has bolted, but the concern in Parliament is that there has been a lack of scrutiny of the policy because of the way in which it has been rushed through. Given that emergency Covid legislation was properly scrutinised in Parliament in a very short time, would Dr McMillan suggest that primary legislation should have been the route for vaccination passport legislation?

I am afraid that I cannot give you a categorical answer to that either. However, we have noted that the procedure through which the scheme will be introduced has reduced the opportunity for scrutiny of the proposed legislation. That legislative procedure often involves less pre-legislative consultation than normal, and that consultation is often required in order to know with clarity the nature and scope of any proposed scheme. For example, we have noted that, because of the complex and detailed definitions that are required, there are meanings, particularly with regard to terms and exemptions from certification, that are unlikely to be finalised until close to the time of implementation. Therefore, we have said that it is essential that regulations remain subject to appropriate review.

The Scottish Government’s proposals indicate that regulations will impose a legal obligation on the person responsible for operating the business, who must “take all reasonable measures” to restrict entry only to those who are fully vaccinated. How, from a legal perspective, do you define “reasonable measures”, given that the venues that we are discussing are so wide and varied?

You are quite right to ask that question. At the moment, it is very unclear what any “reasonable measures” might look like, and that is something that needs to be clarified as soon as possible for people who run venues.

Mr Doncaster, you have suggested that your preference in the first phase would be for spot checks in order to put less pressure on stewards and to ensure that you can put in place what needs to be in place. Given the Government’s current position that this will be a digital initiative and that the system will need to be able to read QR codes, what will be the cost implication of that on clubs? After all, this will affect not just the big clubs, because when those big clubs visit the smaller clubs, the crowd will inevitably be larger than 10,000. Is there a disparity or, if you like, an inequality with regard to the ability to put these measures in place?

You are right to point to the technological challenges. The infrastructure at clubs varies, and the extent to which any app might be compatible with existing systems is not clear. Clearly, there would be a need for costly infrastructure development at potentially all the stadia affected; it will, as you have pointed out, affect many more than a small handful of grounds, because when those clubs with higher attendances visit other clubs—for, say, Scottish cup and Premier Sports cup games—the attendances at those matches can go over 10,000.

We therefore need to look carefully at the infrastructure, and it would be unrealistic to expect clubs to have that in place, tested and made compatible with any app by 1 October. That is why I said earlier that, in my view, visual spot checks would initially be the pragmatic and proportionate way of introducing vaccination passport checking. That would let the system bed in and enable any IT infrastructure that was developed to be fully tested before it was implemented.

What we must absolutely avoid is a situation in which the IT infrastructure does not work as intended when tens of thousands of fans turn up at stadia and we get bottlenecks. We saw what happened just a week or two ago at the Scotland against Moldova game at Hampden park; the technology worked, but it was unfamiliar to a number of fans who attended the game. It might have been a relatively small number of people but, because a bottleneck developed, we had frustrated and unhappy fans.

Initially, therefore, a visual check would be the way forward. Indeed, that was the Scottish Rugby Union’s view at yesterday’s round-table discussion on this issue. We should by all means look at IT infrastructure development, but we need to get a system of visual checks in place initially to ensure that we have a light-touch approach and the minimum of disruption.

Given that, I presume that you agree that any reduction in the flow of fans into a ground gives rise to the potential for unrest and security issues outside the ground.

That is inevitable where you get queues, particularly with tens of thousands of fans turning up relatively late. It is traditional in football for people to turn up in the minutes before kick-off. In part, that is to do with the fact that fans are unable to get a drink at Scottish football stadia, unlike their counterparts across Europe, and large numbers of fans often turn up in the minutes before kick-off. Any reduction in flow rates through turnstiles is something that we need to be careful about, for exactly the reasons that I have identified, so there should be a light-touch approach of spot checks. The proportionate and reasonable way forward is to let the system bed in with the minimum of disruption.

10:15  

Mr Stevenson, you represent a wide variety of venues. The technology that is required to read QR codes will be problematic for many of the venues that you represent, and there is a cost implication for them as well. Will you comment on that?

Many of the larger venues that we represent have fairly similar problems in trying to process people through an entry point. As I think we mentioned earlier, we could easily have 40,000 or 50,000 people entering across 100 nightclubs every Friday and Saturday night. A queue of perhaps 500 customers expecting to get into a venue will move through the entry in 30 to 45 minutes. Any technology that is required would have to be extremely quick. For example, if we added just 30 seconds to the time that it takes to admit one person, a queue of 500 would take an additional 250 minutes, which is more than four hours’ additional queuing time. We could look to front-run the queue with additional staffing but, as has been noted, there are no staff to be had anywhere in the market. Certainly, it would be impossible to attain that additional level of staffing within two weeks.

Albeit that we have wider concerns about other aspects of the policy, we would certainly endorse a pragmatic approach to implementation if the scheme is to be pushed through. Approaches such as spot checks or phased implementation to allow many of the practical matters to be resolved without harming businesses in the short term would be very welcome.

In the sector that you represent, many people who are going out do not stay in just one venue; they access multiple venues. Do you agree that the proposal will create inequality between the venues that require a passport and those that do not, and that the issue will become a deciding factor in which venues people choose to go to? As a slight aside, is there therefore potential for venues that currently class themselves as nightclubs to decide that they are not nightclubs?

Yes. That is a massive concern, and it is one of the fundamental flaws in the proposal that is incredibly difficult to overcome without making vaccination passports universal across all premises types. We are clear that the inequality that you describe is unfair competition. It is a Government intervention that creates a distortion in the market. No matter what definition of “nightclub” you use and whether you include 200 premises or 2,000, that distortion will be created at some point in the market. People who would have gone to a nightclub might instead choose to go to a hybrid venue, if they are not included in the scheme. If hybrid venues are included, people might choose to go to a large pub or a student union instead, because they know that they can get in without a vaccination passport.

No matter where the line is drawn, we will create market distortions and there will be businesses on one side of the line that artificially prosper and businesses on the other side that will lose such a substantial proportion of attendance and turnover that it might put them out of business—it would likely put many out of business. There is no easy way to overcome that challenge.

I asked Dr McMillan about the legal obligation to “take all reasonable measures”. Given that there is potential for venues to commit an offence, how was the industry involved in developing the idea of what constitutes “reasonable measures”? What is your understanding of the phrase?

To date, we have not been involved in a discussion on what “all reasonable measures” would involve. There has been no discussion in any depth of what that would cover or entail.

It is unclear to us whether we are required physically to have a person on every door into every premises during all its hours of operation checking people on entry or whether, if a group comes into a premises and one person goes to the bar to order, another member of staff has to go round every table checking every individual’s vaccination passport. Alternatively, will there be an automated system at the door that people will have to use to check in, much as they have to do with the track and trace system, so that the onus is on the customer?

There is a huge differential in cost and resource between those options, and we have no idea which of them the Scottish Government is proposing. There has been no consultation on it.

I ask Mr Doncaster to respond to the same question.

Since the announcement that vaccination passport checks would have to be carried out from 1 October, we have been engaging with Scottish Government officials. We took part in a round-table meeting yesterday and set out, as I have at the committee, what we believe would be reasonable and proportionate, particularly in the timescale concerned.

It is well understood and well accepted that spot checking is a proportionate and reasonable way to carry out vaccination passport checking. As I hope that I have made clear, a light-touch approach in the first phase of implementation would be sensible and would enable systems to bed in without causing the harms that could result if we have a more rigid system that creates bottlenecks outside stadia.

Mr Stevenson, are bars and nightclubs using the track and trace QR codes that are already in place in restaurants as people gain entry?

Bars, nightclubs and restaurants all sit within hospitality and will all have track and trace posters on display at every entry point and, often, at tables and bars, with customers being reminded to check in. However, not every hospitality premises currently has a doorman at every entrance who refuses to let people in until the process has been managed for them. There would not be sufficient resources or staffing across the sector to do that.

I have a question for Catriona McMillan. It is a follow-up to John Mason’s question about ethical objections to vaccination passports.

I have had correspondence from one constituent who has a religious objection to vaccination. Some religious groups are in that position. Do you have any views on the human rights aspects of vaccination passports in that context, given that religious belief is a protected characteristic?

You are right that freedom of religion is protected by article 9 of the European convention on human rights and in the Equality Act 2010. However, as I mentioned in our submission, those are qualified rights. Whether human rights are infringed generally by vaccination certification depends on the context in which the measures are introduced and on how far they extend. Rights that are qualified under the convention may be restricted to achieve a legitimate aim, as long as the measures are necessary and proportionate. In the Czech Republic case that we mentioned, it was held to be necessary and proportionate to restrict access to schools for children who had not been vaccinated.

Thank you—that is helpful.

As members have no further questions, I thank the witnesses for their evidence and for giving us their time. It has been informative. If they would like to raise any further points with the committee, they can do so in writing. The clerks would be happy to liaise with them about how to do that.

I suspend the meeting to allow for a changeover of witnesses. I advise members that there will be time for a short comfort break.

10:26 Meeting suspended.  

10:31 On resuming—