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Wed 11th Nov 2020 - Legal Briefing

The resort to law by Michelle Hazlewood

The government has prescribed another four weeks of lockdown for England to regain control over the virus. As we come towards the end of the first week, we take a glance at Wales, which emerged from its “firebreak” on Monday (9 November), and over to Scotland where the central belt is back open but has restricted freedoms. This year has been a turbulent one in which we have seen a great deal of changes in society as well as the within the hospitality industry. It is important to reflect on what has occurred and whether we, as a sector, can consider these regulations as feasible or justifiable.

Over the past six months, the law has appeared to have taken a more forefront position than at the start of the pandemic. When the initial lockdown was issued, the first set of regulations was light in content, simplistic, and less detailed. The main reference documents were described merely as guidance and could not lead to prosecution. However, the legislation placed before the MPs at Westminster on 4 November was significantly longer and more detailed, reaching 32 pages in length.

The new regulations seem indicative of a shift in mood within the country. The hospitality sector has recently seen prominent individuals openly express frustration with the government due to the level of uncertainty and lack of understanding. In early October, we witnessed bar staff in Scotland dump leftover ice outside parliament as an act of defiance against the closure of the central belt as well as the lack of support. During times like these, there are often two forms of reaction, with the first being the potential for civil disobedience. This has been answered by the scope of penalties for breaches of the latest set of regulations, which can be aggregated in cases of repeat offending. On the other side of the spectrum are those who are now turning to the law in an attempt to uphold fairness, proportionality, and natural justice.

There has already been a movement in this direction. Early doors in the pandemic, the legal vehicle of judicial review was used to question the response of the insurance industry on the interpretation of business disruption insurance policies.

More recently, a case was commenced by Jeremy Joseph, owner of the G-A-Y nightclub group, who is highly critical of the 10pm curfew. He claimed the government failed to provide any scientific evidence to justify the existence of the curfew, which directly questions the lawfulness of the government’s actions. In the world of licensing when applications are subject to scrutiny there is clear guidance on the role of evidence, under paragraph 9.43 of the S182 Licensing Act 2003 guidance, it states that “the authority’s determination should be evidence-based, justified as being appropriate for the promotion of the licensing objectives and proportionate to what it is intended to achieve”. He explained that instead of doing this, he felt it encouraged customers to continue their evenings at private residences, which impacted the industry but also failing to reduce the spread of covid-19. On the paper assessment, the court refused permission for the case to proceed. It is understood the application is to be re-heard but, this time, the case will be on oral submissions where the merits of the case will be more fully assessed.

We are starting to see similar resistance appearing across the sector. The north was the first part of England to feel the pressure from the new tiered system, with hospitality in Manchester grudgingly forced to close its doors. Sacha Lord, night-time economy adviser for Greater Manchester has said he has decided to take formal action and is now heading a group to take this forward. Night Time Industries Association chief executive Michael Kill said: “The industry has been left with no other option but to legally challenge the so-called common-sense approach narrative from the government on the implications of further restrictions across the north of England.”

The law can provide solutions to situations that are proven to be unfair or inadequate paving a route to resolution. The problem is that this process is expensive and time-consuming. Realistically, no challenge through the courts will be concluded before the end of lockdown 2.0, leaving the industry struggling in the dark until then.

During the spring, the goodwill of hospitality supported the nation’s endeavours and, at the time, felt celebrated and nourished. The logic was clear, and the science seemed simple but as the pandemic continued, our position became more complex. 

Simon Emeny, chief executive of Fuller’s, said in a letter to Boris Johnson that he is struggling to understand the government’s strategy in dealing with covid-19 and the restrictions have “created a sense that pubs and restaurants are being blamed for the spread of the virus”. Less than 3% of new infections originate from hospitality but it appears that the sector is still heavily sanctioned. If we continue to see no adjustment from the government, we may see more legal processes being resorted to in an attempt to protect the industry and the communities it serves.
Michelle Hazlewood is a partner at John Gaunt & Partners
John Gaunt & Partners is a Propel BeatTheVirus campaign member

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