Tuesday, 7 July 2020

The "lockdown" Regulations ~ judicial review ~ permission hearing

Simon Dolan and Lauren Monks have been refused permission for a judicial review of the "lockdown" regulations in England - (previous post 27 May).

Judgment of Mr Justice Lewis - Dolan and Monks v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin. The applicants sought permission to bring proceedings to challenge the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 as amended ("the Regulations") and what was described as a decision to close schools and educational establishments.

Lewis J noted
the purpose of judicial review [paras 6 and 7 ] -

"Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the legal principles governing the exercise of their decision-making functions. In addition, Parliament requires public bodies to act in a way which is compatible with rights and freedoms guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"): see section 6 of the Human Rights Act 1998. The court, therefore, is concerned to ensure that a public body is acting within the law and in a way which does not violate a Convention right."

The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices. The court is not responsible for determining how best to respond to the risks to public health posed by the emergence of a novel coronavirus. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies."

An overview of the Regulations (and amendments) prior to 4 July 2020 is set out at paras 8 to 16. On 4 July new Regulations came into force and replaced the earlier regulations - (previous post).

The appliacnts were Mr Simon Dolan (sole shareholder of JOTA Aviation Ltd), Ms Lauren Monks, and a child AB (and litigation friend CD) - [para 17-23]. Note [19] where the judge states that the child may not be named.

At para [24] the judge set the issues to be considered. The judge then proceeded to deal with each of them:

Issue 1 - Delay and Academic Claims - [26-33]

Issue 2 - Vires of the Regulations - [34-46]

Issue 3 - Domestic law challenges to the Regulations - Fettering of Discretion [49-52], Failure to have regard to relevant considerations [53-54], was the decision to make and maintain the regulations irrational [55-56], was the making or maintaining of the regulations disproportionate under the 1984 Act [57-62].

Issue 4 - Article 5 of the Convention - [64-73].

Issue 5 - Article 8 of the Convention - [74-78].

Issue 6 - Article 9 of the Convention - [79-87].

The judge noted that new regulations were made on 3 July 2020 enabling places of worship to hold acts of communal worship for up to 30 people with effect from 4 July 2020.  This possibly meant that he Art 9 claim had become academic but the question of whether it has become academic was adjourned.

Issue 7 - Article 11 of the Convention - [88-96].

Issue 8 - Right to property - [97-105].

Issue 9 - March 18 announcement re Schools - [106-112]

The outcome was that one matter (relating to Article 9) was adjourned and permission was refused for all the other claims.

Notes:

See also the judgment of Swift J - (whether Regulation 5 involved an arguable breach of Article 9 of the Convention) - R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin).

The "lockdown" Regulations have undoubtedly had a major impact on the economy, the jobs and livelihoods of people, education, and on the treatment of health conditions other than Covid-19. The impact of the virus continues to be felt and will endure for a considerable time.

Lews J has given a clear statement of the purpose of judicial review (i.e. to test legality). Students of public law would do well to read the judgment in full. It is a good example of the approach of the court when considering applications for permission to proceed with judicial review.

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