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Wed 14th Apr 2021 - Legal Briefing

Open but fighting for justice by Michelle Hazelwood

The team at John Gaunt and Partners has been incredibly eager to get back to our favourite venues. We sat cold, but smiling, in our local pub garden, The Stag in Sheffield, for a celebratory lunch on Monday. We were determined to be some of the first customers welcoming in the easing of restrictions. As I enjoyed my drink, I began to think ahead to the next key date of 17 May that, in all honesty, feels like a century away. It would mean more than a month of the public fighting for reservation slots and dinner in the unpredictable British weather. Not to mention the ongoing impact on the 60% of public house establishments that have been unable to open due to their lack of outdoor space.

There is currently an ongoing battle in the form of “judicial review” to bring forward the indoor trade opening date. Much weight sits on the proceedings raised by Sacha Lord, Manchester’s night-time economy adviser, and Hugh Osmond, founder of Punch Taverns. Judicial review often lacks media coverage despite its significance, especially in terms of hospitality. This means that the everyday person is unaware or may not understand the process at hand. Let me break it down for you.

In English law, we have the Executive (our government) and the Judiciary (the courts). These two pillars of the British constitution stand independent of each other in order to balance the authority in the country. Judicial review is the act of reflection upon pre-existing legislation brought forward by a complainant.

For Sacha Lord, this means the most senior judges have an opportunity to look at covid restrictions to see if they comply with the principles of natural justice. In this example, the legitimacy of the indoor hospitality opening date is compared with other sectors, such as retail, which has been able to trade inside from Monday (12 April). The next stage of the case is to begin on Monday, 19 April, where it is understood he will have to provide evidence to prove the government has acted discriminatively and that this is an unlawful exercise of discretion.

There is a high evidential burden to establish the Executive has failed to take into account relevant considerations. The mountain to be climbed by Sacha Lord cannot be underestimated. Those within the industry will understand how it clearly appears contradictory and irrational that indoor retail, where people can mingle at will and repeatedly touch goods is considered less dangerous than hospitality premises. Pubs and restaurants are places where a restricted number of people can only enter to sit in a designated space, have limited movement, and be subject to direct supervision. The industry has faced prejudice throughout the pandemic and has not been provided with the data to suggest that these additional restrictions are necessary to keep the case rate down. Is this because there is no evidence?

Illegality, procedural unfairness, irrationality and legislation that conflicts with the Human Rights Act 1998 are the key factors that may cause a piece of legislation to go to judicial review. The claimant must provide a case that falls into these criteria. The first judge simply filters the applications by approving or rejecting the continuation of the claim based on the strength of an arguable case. Only 5% are given this permission so the fact Sacha Lord is now into the proceedings is worthy of applause. 

The current case is aided by those who made judicial review applications last year but were unsuccessful. The Dolan and G-A-Y challenges were thwarted by previously unseen problems because the regulations they were criticising had changed before the proceedings concluded. This concern was noted by the courts and in the October decision in the G-A-Y case, Judge Lane expressly stipulated: “The pressing need for the defendant to act with expedition”. This means that both the courts and the government’s responses must be fast-tracked for the conclusion to be worthwhile and useful. This was the beginning of the industry challenging the regulations set forth by the government and regaining some level of control. It encouraged debate and dialog about which rules were fair and feasible, and which felt unproductive. While the courts did decree the government had failed to provide sufficient evidence to justify the 10pm mandatory closing time and the rule was quashed, curfew times were extended to 11pm in the lower tier areas shortly before the whole country was sent back into lockdown. Now the curfew restrictions have been dropped altogether, supported by the evidence and discussion that was collated from this case. Along with this, the bizarre substantial meal directive, which was also fought by Sacha Lord via judicial review in February, has also hit the chopping block. 

Both legal teams will now be working hard in anticipation of the next hearing by collating evidence including statistics on transmission, track and trace data, comments by scientists and politicians, and reports from Sage and the Scientific Pandemic Influenza group on Modelling (SPI-M). We can expect this process to still be fairly lengthy, even with it conducted in an expedited manner. If the court agrees there has been an irrational discriminatory approach then it has an option to revert the regulations back to the Executive or, alternatively, order the quashing of the provision. We may see the inside of our favourite social spots sooner than first expected. One thing I have learnt from working in the courts for more than 30 years is that justice often prevails. We continue to keep our fingers crossed for hospitality after such a terrible year of losses. More importantly, this case symbolises the significance of transparency, fairness, and the court’s ability to hold the government to account.
Michelle Hazelwood is a partner at John Gaunt & Partners
John Gaunt & Partners is a Propel BeatTheVirus campaign member

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