The High Court has ruled that the government’s policy of allowing pubs only to serve alcohol with ‘substantial meals’ may have been discriminatory against ethnic minorities.
Judge Richard Pearce ruled:
‘It is 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’.
Not one single person has been denied entry to a pub other than the fact we all have. Not one single person has been denied a pint, pie and mash on grounds of ‘we don’t serve your kind around here’.
The ruling is based on the idea of ‘indirect discrimination’ whereby a general rule can be held to be discriminatory if it impacts more on some groups than others, that is to say, those individuals who go against the rule but happen to be more in one group than another.
Judge Pearce ruled that the aim of cutting the transmission of the COVID-19 virus was a legitimate policy aim but ‘it is arguable that the Table Meal Exemption is not a proportionate means of achieving that aim’ and thus there was an ‘arguable’ case of indirect discrimination, under the Equality Act 2010.
The rationale for this is that having a pint plus a meal is more expensive than having just a pint. Ethnic minority people are more likely to have less money. Therefore, they are more penalised by the general rule and therefore the general rule is discriminatory.
The case had not even been primarily brought by or at least in the interests of minority individuals. Rather, it was brought by the hospitality-sector which is looking to advance and protect its interests.
Contrast this case with the recent EHRC investigation into Pontins which found the company was keeping a black list of Irish names in order to prevent Gypsy and Traveler families from staying at its holiday parks. Does the table meal exemption smack as so obviously cruel as well as unfair to an ethnic minority group as something like this? Are they of the same nature of moral offence?
This ruling represents a serious threat to the capacity for a democratically elected government to govern, regardless of what you might think of the wisdom of the policy in question. What other policies might be unlawful because minorities are supposedly poorer? Notably, the policy has not been included in the current road map from out of lockdown, and one of the individuals behind the case is apparently claiming credit for this.
Moreover, the torturous logic behind the ruling is not even factually defensible. Firstly, ethnic minority individuals are less likely to be drinkers and when they do drink, they tend to drink less. Statistics from the ONS show that 70 per cent of Asians were teetotal, as were 51 per cent of black people. Contrast this with 16 per cent of white.
13 per cent of Asian and 24 per cent of black drinkers drank more than 7 units a week (equal to 3/1/2 pints) compared to 30 per cent of white drinkers. If anything, the policy ‘indirectly discriminated’ against white people because they are more likely to get sloshed. Moreover, they are most likely to visit a pub or venue where alcohol is served.
Nor are minority people so poor that they cannot afford a pub meal. Wetherspoons’ prices are very low. Nor is there consistent evidence that they are poorer. While some groups do fall behind the white British, the following statistics should be born in mind:
- 46 per cent of Indian households have weekly earnings greater than £1,000 compared to 28 per cent of white British
- At the bottom, 8 per cent of Pakistani households have weekly earnings of up to £199 compared to 7 per cent of white British
- Among the British-born, the ‘ethnicity pay gap’ is negative for Indian (-24 per cent), Chinese (-16 per cent), ‘other black’ groups (-14 per cent), and negligible for the black Caribbean and black African groups (1 per cent, 4 per cent respectively), meaning better or the same pay on average
- There are no significant differences in the wealth of comparable black Caribbean and white British households
They can afford Spoons! Moreover, the idea that they are all so poor they cannot, smacks of racial prejudice. At root is the problem of ‘BAME thinking’, which is the drawing of inference on what is fair based on statistical aggregations of all ethnic minorities, which obscure those disparities that are in the favour of certain ethnic minority groups.
What we have is a ruling of ethnic discrimination, in the name of equality, based on empirical falsehoods, on a case brought about by an industry lobby that overrules the democratically elected government. This is made possible by the Equality Act 2010.
It is time for a review of this legislation, rushed into law during the death-throws of the last Labour government and without proper scrutiny. On the basis of this ruling, it would appear the competency of the courts to say what is fair or proportionate in terms of the effects of government policy, simply is not there. I would argue the very premise, that any individual can adjudge the fairness of a policy as it impacts on groups is impossible, other than to seek to ensure that it is a general rule, applicable to all. At the heart of the Equality Act, however, is the belief that general rules – the essence of liberalism – are suspect.
What the act does is to compel courts to make sociological or moral judgments rather than legal ones. It thus, compels our law into spheres where it has no business or competency. The current government is not a Labour government, it has a strong majority and is under no democratic mandate to conserve the mistakes of its predecessor.
Admittedly, we have legal safe-checks and it is possible this ruling will be overruled by a higher court. But the fact is that the error is made possible by the legislation, which then requires correction and time and costs incurred by the courts when they might be devoted to more pressing matters. But what are the flaws in the legislation that allowed this to be? What other mistakes will come?