Lockdown challenge refused

R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin)

Following a hearing on 2 July 2020, the court has refused an application for permission to apply for judicial review of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the regulations) as well as a decision to close schools and educational establishments.

The claimants argued that the regulations were unlawful on a number of public law grounds, including that they were ultra vires, irrational and disproportionate. It was also argued that the regulations breached a number of articles under the European Convention on Human Rights (the convention).

The court first considered whether the claim had been brought promptly. Despite the claim form having been filed almost two months after the regulations were made, the court did not hold that the claim was barred by reason of delay. However, crucially, a number of the regulations challenged had been replaced or amended by the hearing date. Consequently, the court held that various parts of the challenge were academic. Although the court has the discretion to entertain academic claims, it saw no good reason to do so.

Considering the claimants’ assertion that the regulations were ultra vires as being beyond the power conferred by the Public Health (Control of Diseases) Act 1984 (the Act), the court held that the Act conferred broad powers on the secretary of state to adopt a wide range of measures to combat the spread of infection. The  ultra vires claim was therefore held to be unarguable.

The court also dismissed arguments from the claimants that:

• the government’s five tests to be met prior to restrictions being relaxed were an unlawful fettering of ministerial discretion; and
• the decision to make and maintain the regulations was irrational and disproportionate.

The court noted in this regard the government’s lawful aims and the difficulties in balancing rival considerations.

The court then went on to consider the claim that the regulations breached convention rights, including the right to liberty and security (Article 5), the right to private and family life (Article 8), freedom of religion (Article 9), freedom of peaceful assembly and association (Article 11), and the right to property (Article 1 of the First Protocol). With one exception,  the court concluded that it was not arguable that the regulations gave rise to a breach of the convention, any interference with the rights in question being justified and proportionate. The court was, however, minded to proceed to a full hearing on the claim that the prohibition of the use of places of worship for communal acts of worship breached Article 9. However, following the hearing, regulations were made which permitted places of worship to hold acts of communal worship for up to 30 people. The court in its judgement therefore suggested that this claim may have become academic.

Points to take away

• Act quickly – a claim for judicial review must always be brought promptly, but this is even more important than ever in the constantly evolving environment in which we live currently as a result of COVID-19;
• Prepare strong evidence – the claimants’ in this case lost their claim under Article 1 Protocol 1 of the convention for want of evidence. In principle, though, it seems to us that a claimant might well succeed on that basis, for example if it could be shown that they were being deprived of the opportunity to earn a living as a result of the continued imposition on them of COVID-19 related restrictions while others were allowed to return to work; and
• Judicial review can be an powerful weapon – this decision is consistent with the recent decision in the Brexit-related Miller proceedings; courts are willing to consider judicially reviewing any decision taken by the government.