CHALLENGE TO LAWFULNESS OF “LOCKDOWN” REGULATIONS: PERMISSION REFUSED

In the judgment today in Dolan & Ors v Secretary of State for Health And Social Care & Anor[2020] EWHC 1786 (Admin) Mr Justice Lewis refused permission to seek a judicial review of the Regulations made as a result of coronavirus. One specific issue has been deferred for later consideration.

Covid-19, Work From Home, Quarantine

THE CASE

The claimant sought to argue that the Regulations made as a result of coronavirus.   The judge held that:

  • Some of the applications were brought too late, the court would not consider “academic” matters.
  • The Regulations were not ultra vires.
  • There was no basis upon which the court could find that there had been any fettering of discretion or any failure to have regard to relevant considerations.  Similarly there was not basis for arguing that the Regulations were made irrational.
  • The Regulations did not breach Articles 5, 8  9, or 11  of the Convention.
  • The Regulations did not amount to a deprivation of the first claimant’s property rights contrary to Article 1 of the First Protocol to the Convention.
  • The claim in relation to schools was academic given the plans to return to school.

THE JUDGMENT

The judgment goes through each point made by the defendant in some detail.

    1. This judgment deals with the grounds of challenge specifically alleged in the amended claim form and the supplementary grounds dated 23 June 2020. Those documents make a large number of points about a wide range of matters. Consideration of whether to grant permission has been deferred in relation to regulation 5 on one specific ground, namely an alleged breach of Article 9 of the Convention. Permission has not been granted to argue any of the other matters referred to in the claim form as a free standing ground of judicial review of any regulation, decision or other measure.
CONCLUSION
    1. The Secretary of State had the legal power to make the Regulations. In making and maintaining the Regulations, he has not fettered his discretion. He has had regard to relevant considerations. He has not acted irrationally. He has not acted disproportionately. Permission to apply for judicial review on grounds 1 and 2A, 2B, 2C and 2D in the amended claim form is refused.
    2. The claim to challenge the restrictions on movement and gatherings in the original regulations 6 and 7 are academic as those regulations have been replaced. The challenge to the 18 March 2020 announcement relating to schools is also academic in the circumstances. Permission to apply for judicial review to challenge those regulations and that decision is refused.
    3. The amended regulation 6 in force on 2 July 2020 requiring persons not to stay overnight other than where they live is not even arguably a deprivation of liberty within the meaning of Article 5 of the Convention. Permission to challenge that regulation is refused.
    4. The Regulations in force on 2 July 2020 did involve a restriction on the freedom of assembly and association. That freedom is an important one in a democratic society. The context in which the restrictions were imposed, however, was of a global pandemic where a novel, highly infectious disease capable of causing death was spreading and was transmissible between humans. There was no known cure and no vaccine. There was a legal duty to review the restrictions periodically and to end the restrictions if they were no longer necessary to achieve the aim of reducing the spread and the incidence of coronavirus. The Regulations would end after six months in any event. In those, possible unique, circumstances, there is no realistic prospect that a court would find that regulations adopted to reduce the opportunity for transmission by limiting contact between individuals was disproportionate. Permission to apply for judicial review on that ground is refused.
    5. The Regulations do not, even arguably, involve a breach of the right to respect for private and family life guaranteed by Article 8 of the Convention or of the first claimant’s property rights under Article 1 of the First Protocol to the Convention. Permission to challenge the Regulations on those grounds is refused.

THE DEFERRED ISSUE

One issue, on Regulation 5, was deferred.  The Court making the following order:-

The defendants are to file and serve on the claimants written
submissions by 4 p.m. on 13 July 2020 on whether the claim that
regulation 5 of the Health Protection (Coronavirus, Restrictions)
(England) Regulations 2020 (“the Regulations”) as amended on the
grounds set out in paragraphs 160 to 168 of the amended claim form
(Article 9 of the Convention for the Protection of Human Rights and
Fundamental Freedoms) has become academic in the light of the
amendment or replacement of the Regulations with effect from 4 July
2020. The claimants are to file and serve written submissions in reply by
4 p.m. on 20 July 2020. The papers are then to be placed before Lewis J.
for a decision on this issue.

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