What is a substantial meal? New COVID-19 rules for pubs and bars in Tier 2

After weeks of total lockdown in England, the Government has announced the new multi-tiered approach to reduce the spread of Covid-19. Beginning on 2 December 2020, the new Tiers 1, 2 and 3 will apply in various counties across the country.

As part of the new regulations for the tiered approach, further restrictions on licensed venues have been imposed, especially in Tier 2 areas where pubs and bars will have to close unless alcohol is served for consumption as part of a table meal that might be expected to be served as the main midday or main evening meal.

The statutory language used in the regulations is very redolent of past times when under the old Licensing Act 1964 such quaint terminology was used before the concepts of brunch, tapas and small plates were commonplace. The idea now that the whole country sits down for a main midday meal is rather anachronistic in the modern era.

Regrettably, or perhaps not, the accompanying guidance provides no assistance in how we are to interpret these provisions and indicates that “pubs and bars must close unless operating as restaurants. Hospitality venues can only serve alcohol with substantial meals”.

In this article, our licensing lawyers Gareth Hughes and Niall McCann consider what a substantial meal means under licensing law and discuss how pubs and bars can navigate the new Covid-19 restrictions in Tier 2 locations.

In the new Tier 2 regulations and guidance, what does the word “substantial” mean?

In the last couple of days much attention has focussed on the meaning of the word “substantial” which was also used by the Prime Minister and Ministers in explaining the provisions. This has risibly become known as “the Scotch egg” debate as a succession of Government Ministers have attempted almost in vain on TV and radio to state clearly what their own regulations and guidance mean.

The Government was already attempting to address the issue before publication of the regulations and it culminated in the Environment Minister Mr Eustice on national radio giving his well-considered view on the meaning of the phrase “substantial meal”. His view was that a Scotch egg could be regarded as a substantial meal before quickly back-tracking and stating that, of course, he meant only as part of a starter!

In addition, other ministers are saying that customers should leave premises as soon as they have finished their meal and not linger drinking.

In terms of drinking with the meal, it is our view that customers are entitled to come in and order a drink right away and perhaps drink this whilst deciding on their meal. It may also be the case that the meal is not prepared right away, of course, and so they may have another drink whilst that takes place. They are then entitled to have a drink with their meal and in our submission, are allowed to have a drink post-meal if their booking has not expired. This has been the way people take their meals in restaurants for a very long time.

We had hoped to have seen the end of case law and argument around this point when the Licensing Act 1964 was replaced by the Licensing Act 2003, which did not include the term. It is a questionable pleasure after all these years to have to draw from the legal archive, cases which shed some light on its meaning.

Under the old 1964 Act, publicans were only allowed to continue selling alcohol after 10.30pm by applying to the local magistrates for what was called a supper hours certificate, which allowed an extra hour of drinking only so long as such alcohol was alongside substantial refreshment. In a few cases decided under the old law, it was determined, for example, in 1955 in Soloman v Green, that “sandwiches and sausages on sticks” were to be regarded as substantial refreshment in order to be able to continue selling alcohol with that refreshment. Further, in the 1965 case of Timmis v Millman, it was again held by the Courts that sandwiches paired with pickles and beetroot were sufficient to justify a table meal and more than a “mere snack”.

Whilst the statutory concept of “substantial” fell away with the introduction of the Licensing Act 2003, many premises licences have conditions stating that not only does food have to be available but alcohol can only be consumed as ancillary to a substantial meal. This is especially so for venues located in cumulative impact zones commonly found in city centres and can be very prescriptive. For example, the City of Westminster has a model condition which states, amongst other things, that operators must show customers to their tables, serve them by waiter/waitress service, provide substantial table meals which are prepared on the premises and provide those meals on non-disposable crockery. Hence, even pursuant to the Licensing Act 2003, similar arguments still rage between operators, lawyers and enforcement officers as to whether a food offer is sufficiently substantial to be considered a meal.

What counts as a substantial meal?

Inevitably, it boils down to fact and degree. In some ways, it is easier to state what is not substantial. Whilst styles of eating have changed over the generations since the above cases were decided, even today the service of a small packet of crisps or peanuts or a little bowl of olives will, in our opinion, not suffice to be regarded as a “substantial” as to amount to a table meal. However, there is a very wide spectrum in play here and the current modern trend for crisp sandwiches, perhaps with a side salad, would be regarded as “substantial” and sufficient for the law.

As an enforcement officer once said to one of the authors, “I cannot explain what a substantial meal is, but I know it when I see it”. Therefore, if officers go into a venue located in Tier 2 and see patrons licking their lips, tucking into food and looking replete, the substantial test will be passed. However, if faced with patrons knocking back pints, ignoring the bowl of nachos in the middle of the table, then enforcement action could follow.