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Judge gives permission for High Court challenge over requirement in Covid regulations for meal if alcohol being served

A judge has granted the Night-Time Economy Adviser for Greater Manchester and two other residents of the city permission for a legal challenge over the restriction on serving alcohol unless it is with a table meal.

Sacha Lord, the Night-Time Economy Adviser, yesterday tweeted: “Judge Pearce agrees we do have a case in the High Court. It is arguable that a meal with alcohol is not necessary.

“It is also arguable that closing pubs that don't serve food discriminates sectors of our society.”

Mr Lord and his fellow claimants are being advised by JMW Solicitors and David Lock QC of Landmark Chambers.

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They had applied for permission to bring a claim for judicial review against the Secretary of State for Health and Social Care seeking declarations as to the lawfulness of:

a. The exemption in Paragraph 14 of Part 3 of Schedule 2 to the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 ("the All Tiers Regulations") to the requirement that business selling alcohol for consumption on premises must cease to carry on that business, in so far as that requirement does not apply in limited circumstances, namely "if alcohol is only served for consumption on the premises as part of a table meal" ("the Table Meal exemption").

b. Exception 18 in paragraph 4 of Part 1 of Schedule 1 to the All Tiers Regulations, exception 19 in paragraph 4 of Part 1 of Schedule 2 of the All Tiers Regulations and exception 18 in paragraph 4 of Part 1 of Schedule 3 to the All Tiers Regulations each of which creates an exception ("the Christmas period exception") to the restriction on gatherings contained in paragraphs 1 to 3 of that Part of Schedule 2 in respect of the "Christmas period" (defined by Regulations 2 of the "All Tier Regulations as "the period beginning with 23rd December 2020 and ending with 27th December 2020").

The claimants contended that the 'Table Meal exemption' was unlawful for the following reasons:

a. The distinction between allowing hospitality business to remain open whether they are serving a person having a drink and a meal but may not remain open if they are serving a drink without a substantial meal is irrational and/or not supported by proper evidence ("Ground 1").

b. It is unlawful as indirect discrimination under the Equality Act 2010 ("Ground 2A").

c. It is unlawful as discrimination under Article 14 of the European Convention of Human Rights (ECHR") (("Ground 2B").

Mr Lord and his fellow claimants also contended that the 'Christmas period exception' was unlawful as direct discrimination under the Equality Act 2010 ("Ground 3").

His Honour Judge Pearce sitting as a Judge of the High Court on 29 January 2021 decided that:

  1. The application for permission to apply for judicial review should be granted on Grounds 1, 2A and 2B (in so far it alleges indirect discrimination).
  2. The application for permission to apply for judicial review should be refused on Ground 2B (otherwise than on the basis of an allegation of indirect discrimination) and Ground 3.

On Ground 1 the judge said he agreed that the courts should be slow to interfere in the defendant's difficult tasks of assessing what is necessarily limited evidence in order to come to important public health decisions. However, he added, “it is arguable that the there is no scientific evidence to support the distinction that has been drawn between the service of alcohol in accordance with the Table Meal exemption and serving alcohol in other circumstances that comply with Government guidance on reducing the risk of coronavirus transmission.”

Judge Pearce said that whilst it might be argued that it is self-evident that the traditional way in which bars and pubs operate involve people mixing in ways which would increase the risk of transmission of Coronavirus, the evidence referred to by the claimants in their Statement of Facts and Grounds might be an indication that the other control measures referred to by the claimants were in fact effective to reduce the risk of transmission.

On Ground 2A the judge decided it was arguable that a policy which permits drinking alcohol with a meal in licensed premises but does not permit such premises to open if they do not serve a substantial table meal discriminates against people from a non-White or BAME background.

The case will be listed before a High Court judge for two days, at a date to be confirmed.

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