Substantial meals off the table after judges flag ‘discriminatory effects’

Judges in the court case The Queen (OAO Sacha Lord and others) v Secretary of State for Health and Social Care​ have ruled the 'substantial meal' restriction imposed on wet-led pubs during England's tiered Covid alert system was arguably discriminatory towards certain sections of society.

Under measures introduced between 14 October and 5 November – when England entered its second national lockdown – last orders were called in pubs and bars in the highest tier except where serving ‘substantial meals’. 

However, after the lifting of the month-long lockdown on 2 December, tier two pubs and bars​ were told to close unless “operating as restaurants” according to the Government’s Winter Plan, meaning they could only serve alcohol if accompanying a “substantial meal”.

When England emerged from nationwide lockdown in December, pubs were either closed or only able to open if they are serving substantial meals in all but three council areas in the country, with 13,920 pubs of the 21,091 in said areas forced to remain closed, according to British Beer & Pub Association figures.

On 5 February, a High Court Judge declared: “It is arguable 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.

“It is arguable that a policy which permits drinking alcohol with a meal 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 (black, Asian and minority ethnic) background”.

On 25 February, the Secretary of State finally filed his defence, which referred to the plans set out in the Prime Minister’s roadmap and confirmed that he would do away with the table meal requirement.

In response to the announcement, Oliver Wright, a partner at law firm JMW Solicitors who represented Sacha Lord, stated: "This case highlighted the lack of real scientific evidence to support the Government’s policy, and their failure to understand its discriminatory effects on non-white and BAME communities."

'Unfairly impacts the poorest'

Sacha Lord, who brought the case, described the decision as a “landmark victory” for the hospitality industry.

"We are pleased with this judgement and that the court case compelled the Government to remove the substantial meal requirement in their recent roadmap,” he said in a statement.

“We have continually stated this measure actively discriminates against and unfairly impacts the poorest and most disadvantaged sectors of our society and was lacking in scientific evidence to support it.

“We will continue to work with those most affected across the night-time economy and hospitality sectors to ensure all measures imposed on the industries going forward are fair, not only to the operators and businesses struggling to survive, but to the general public.

“My legal team and I are already in discussions regarding the lack of evidence to justify the delay of the reopening of indoor hospitality compared with non-essential retail and this is an area we will be updating on in the days to come."

Lord will donate all court costs recovered from the Secretary of State evenly between Hospitality Action and the Greater Manchester Mayor’s Charity.

Finally, I can confirm my legal team and I are now in discussions regarding the lack of evidence to justify the delay of the reopening of hospitality compared with non-essential retail.

— Sacha Lord (@Sacha_Lord) March 1, 2021

What is a substantial meal?

Despite the Government’s repeated assertion that it’s an established concept, many operators have found the notion of “substantial meals” difficult to swallow.

Substantial meals were defined as “a full breakfast, main lunchtime or evening meal” in the Government’s Covid-19 Winter Plan.

However, the already vague notion was been further confused by communities secretary Robert Jenrick defining a substantial meal as something that “you would expect to have as a midday meal or an evening meal” while environment secretary George Eustice argued that a Scotch egg “probably would count” if there were table service.

The Local Government Association (LGA) has also cooked up their own definition, stating: “It would be difficult to argue that a single sausage roll or a snack pork pie constitutes a main meal, whereas if it was served plated with accompaniments such as vegetables, salad, potatoes, it could be considered substantial.”