Legal action has started today over the Government’s decision to keep indoor hospitality closed beyond 12 April, when non-essential retail opens.

Hugh Osmond, Founder of Punch Taverns, former Director of Pizza Express, and director of Various Eateries plc, a hotel and restaurant operator, has written to the Prime Minister stating that there is no “evidence or justification for the prioritisation” of non-essential retail over hospitality and that they “are considering further the potentially indirectly discriminatory effect” on young people and those from BAME backgrounds working in the hospitality industry. The case is also brought by Sacha Lord.

The letter says that “time is of the essence” for the industry, that the “cost of lockdown to the hospitality industry is £200m a day”, and that it is “critical that certainty is achieved by 5 April 2021 at the latest”.

They describe the decision as:

  • “plainly irrational”;
  • “unlawful due to a lack of proper inquiry into the facts”;
  • having “no foundation in the published data or epidemiological evidence”;
  • “inconsistent with the assurances…that the Government would be guided by science”;
  • leading to “serious concerns as to the potentially discriminatory impact”.

The Government has been asked to “seek specific advice from SAGE” on “whether it is justifiable to prevent the hospitality industry opening whilst, at the same time, allowing non-essential shops to open (when the risk of transmission is plainly higher in non-essential shops)” and warn they “will move to issuing judicial review proceedings without further notice” if this step is not taken.

Hugh Osmond said:

“After Sacha’s success in challenging the ludicrous scotch egg proposals, our objective is to ensure that, when taking momentous and unprecedented actions affecting millions of its citizens, the Government must base its decisions on evidence not prejudice, and can be held to account if it does not.

“I believe we can show that discrimination and unsubstantiated beliefs, rather than facts, science and evidence, lie at the heart of much of the Government’s approach to hospitality, and these wrongs need to be righted.

“This legal case will give a fighting chance to over three million people who work in hospitality, to the tens of thousands of businesses, suppliers, landlords and conntractors – large and small – forced into bankruptcy, and to millions of our loyal customers who have been deprived of the human social interaction they experience in our premises.

“We won’t ever be able to repair our health, recover our social lives or rebuild our economy if we allow our Government to lock us up and shut down the economy on the basis of such flawed logic, little justification or evidence.

“Our democracy should be better than this and on behalf of all those who have been affected by Government measures, and those of us who cherish British democvracy and freedom, I hope our case can open up a chink of light at the end of this very dark chapter, so that we can – as the Prime Minister said – reclaim our lives and freedoms once and for all.”

The action argues:

Hospitality “significantly safer” than non-essential retail:

  • The argument points to the “large amounts of time, money and effort” invested “in making hospitality businesses Covid-secure”, and that “Covid-safe measures which have been systematically adopted throughout the hospitality industry since the Covid-19 pandemic began produce a significantly safer environment for the public in hospitality premises as compared with retail venues.”  (See notes to editors for examples)
  • Even when indoor hospitality does open, “the requirement for table service will remain in all hospitality settings, and the so-called “rule of 6” or a maximum of two households mixing will apply…”.
  • “poor ventilation is significantly less likely in hospitality than in other settings; crowding is eliminated by the requirement for table service; “loud” activities will not be taking place; and close/prolonged contact will only be permitted with others from the same household/bubble, with social distancing measures otherwise remaining in place, and the rule of six in force.”

Hospitality venues are easier than non-essential retail to keep safe. 

  • “[i]t is plain as a matter of simple logic and borne out by the evidence…that many such measures are inherently easier to implement and enforce in the hospitality sector than in non-essential retail. Customers attending a hospitality venue for table service are easily identifiable through track and trace, which they are requested to complete as a condition of entry, and can occupy their own socially distanced areas, in stark contrast to customers browsing and queueing in shops. Shoppers are not compelled to complete track and trace, walk around freely, touching surfaces and handles, picking up and touching items before putting them back, taking their time to consider what to buy and standing much closer to other shoppers than they would if they were in a bar or restaurant where social distancing measures are enforced. In hospitality venues, tables are cleaned between each use by customers, and customers can be required to use hand sanitiser provided on entry to the venue, and on tables.”

Hospitality is essential for local communities and mental health.

  • The case argues that hospitality is “at least as essential to local communities, businesses and economies as non-essential retail outlets” and that hospitality offers “fundamental meeting points within local communities…intrinsic to the mental well-being of local residents.”

No evidence hospitality is unsafe.

  • The letter says that “there is no evidence to support the idea that members of the public are at a higher risk of transmitting Covid-19 in hospitality premises as compared with retail premises.”  See notes to editors.

Economic benefits of hospitality compared with non-essential retail.

  • Hospitality “generated an estimated £57.6bnin for the UK economy in 2019…compared to £44.6bn from non-essential retail (UK wide) and employs circa 3 million people compared to 1.2 million in non-essential retail (UK wide).”

The decision hits the young and those from BAME backgrounds. 

  • “Our clients can attest to the fact that many of their employees in hospitality are young individuals from BAME backgrounds. It is clear that the Government is aware of this issue, as it is specifically referenced in the CRS page 8: Staff in the hardest hit sectors, such as hospitality, are more likely to be young, female, from an ethnic minority, and lower paid.” (§20, p8)”, which makes it even more surprising…”

No evidence linking hospitality venues to Covid transmission. 

  • “The available evidence does not establish a link between hospitality venues, whether indoors or outdoors, and Covid-19 transmission” and that actually “[t]he numbers of outbreaks in hospitality venues are still significantly lower than those reported in other venues, settings or work places.

Hospitality can’t operate online.

  • “Unlike non-essential retail (by definition, not essential) the service offered by the hospitality sector cannot be replicated by offering online ordering and delivery/collection. This is a factor that should add to its priority for re-opening, both because it cannot meaningfully trade whilst premises are closed, and because the ability to socialise is critical to many individuals’ mental health.”

This case follows a recent case by Sacha Lord [1] in which the judge ruled the substantial meal restriction imposed on wet led pubs during England’s Tiered Lockdown system was arguably discriminatory towards certain sections of society, a decision which forced the Government to u-turn on the restriction.

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