Details of the review may be seen at Crowdjustice
The claimant argues that - the Regulations are "... of the most far reaching kind and impact directly on every person resident in England. They impose extraordinary restrictions that are subject to minimal Parliamentary scrutiny and it is of the highest public interest that the Court is able to determine whether they were imposed lawfully ..."
The government argues that the Regulations
were made in the face of a global pandemic posing extremely serious risk to life and health and it has been obliged to take "unprecedented, vital steps to limit the ability of the virus to spread, and to reduce the burden on the National Health Service. Both of these aims seek to protect and reduce the risk to the lives of the population, in circumstances in which tens of thousands of people in England have died having tested positive for the virus. The pandemic is global and each country affected has had to make its own judgments as to the most appropriate measures to reduce the spread of the virus and to protect life, based upon the particular circumstances of the particular country at the particular time. The Regulations are similar to the restrictions imposed by a wide variety of countries, albeit that no two countries share precisely the same context."
The Crowdjustice website tells us that -
"The proceedings are against Matt Hancock, the Secretary of State for Health and Social Care – whose name is on the lockdown laws – and Gavin Williamson the Secretary of State for Education, who has presided over the closure of schools and universities. The aim of the proceedings is to lift the ruinous lockdown, restore the civil liberties taken away from the public and allow schools, healthcare services and the economy to restart."
Joshua Rozenberg has commented about the challenge at TransformingSociety.
Mr Dolan is represented by Philip Havers QC and Francis Hoar.
The grounds for the judicial review are set out in an 87 page document. This is longer than is usual in such cases because, as Rozenberg summarises, "it is hoped that the court will consider the question of permission and the substance of the case at a single remote hearing, to be conducted by video link. It will save time if judges have read the full legal arguments in advance."
Leave to bring a review:
The Senior Courts Act 1981 section 31 (as amended) provides that - "No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates."
See also Part 54 of the Civil Procedure Rules
The court will have to decide some preliminary points. (1) whether the claimant acted "promptly" - (2) whether the claimant has standing to bring a challenge based on the Human Rights Act 1998.
Grounds for the review:
There are 3 grounds:
Ground 1 - That the Regulations are ultra vires the Public Health (Control of Disease) Act 1984. It is said that the 1984 Act does not permit secondary legislation to be used to impose restrictions on the whole country. (Note: Regulations for Wales also use the 1984 Act as a basis. Scotland and Northern Ireland have a different legal basis).
Ground 2 - divides into A, B, C and D.
Ground 2A - fettering of discretion due to the government setting out "tests" to be met before changes are made
Ground 2B - Failing to take into account relevant considerations
Ground 2C - Irrationality
Ground 2D - Implementing or not terminating the Regulations was not proportionate under the 1984 Act.
Ground 3 - The Regulations are disproportionate breaches of Convention rights.
Government response:
The government's response is in a letter dated 14 May 2020. The government believes that none of the challenges are arguable. "They will be defended and permission opposed."
Schools:
The grounds for judicial review note that in relation to school closures there is power under the Coronavirus Act 2020 Schedule 16 Part 1. The government has been asked to clarify the statutory or other basis on which educational establishments were closed.
Protocol 1 Article 2 to the European Convention on Human Rights provides that - "In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions." See further the discussion HERE.
SAGE Minutes:
The challenge seeks discovery of SAGE minutes since January 2020 and the 122 documents considered by the Committee other than those 30 that have been published. The government's response is that - "It is neither necessary nor appropriate to disclose further documents in response to this proposed claim."
Remedies:
The claimant asks for the Regulations and the Order of the Secretary of State to be quashed.
Alternatively, if the Court finds that some restrictions would be proportionate, it will agree to a stay of any order for three working days within which period Regulations may be made that satisfy the Court’s findings."
Comment:
In early 2020, the threat posed by this novel virus was emerging and much about it was not understood. (That still remains true even though knowledge has improved). The threat was massive and it is arguable that the lockdown was imposed late and was not severe enough - e.g. enforcement powers could have either been stronger or enforced more strictly. Even now, after over 37,000 deaths, action (including the lockdown) has reduced but not removed the threat to the UK population. As matters have developed the government has made changes to the Regulations and appears to be continuing to do so. The lockdown has been largely supported by the population and many supported and adhered to it through great losses (both personal and economically).
As Joshua Rozenberg wrote - ".... nobody seemed very interested in taking the government to court until Dolan picked up the challenge. Many of the government’s critics seemed to think that, regardless of the legal niceties, a lockdown of some sort was necessary. Let us hope it can be safely lifted before the courts decide whether or not it was ever lawful."
The government notes - "The Regulations – and the amendments to them – were approved in accordance with the terms of the 1984 Act by the House of Commons on 4 May 2020 and by the House of Lords on 12 May 2020, without a division."
Assuming that the challenge (i) obtains permission, (ii) is fully heard by the court and (iii) that problems are found, the judges will probably seek to ensure that the Minister is permitted time to bring the Regulations into line with the court's judgment.
A final thought is that the present government was elected on a manifesto promising a Constitution, Democracy and Rights Commission. That has not gone away but has obviously taken a backseat due to the pandemic and, possibly, the on-going discussions with the EU about the post-Brexit relationship. I cannot help but think that this particular judicial review may have adverse consequences for judicial review in the longer term. Sensible people do not want the lockdown to endure and we should place some trust in Parliament to ensure that it does not last any longer than is strictly necessary.
Other links:
A) The "vires" of the lockdown Regulations has been discussed in a number of articles -
for argument that the Regulations are lawful - Professor Jeff King - Part 1 dated 1 April and Part 2 dated 2 April and the contrary view at UK Human Rights Blog 6 April (Robert Craig) Also see the article published by Blackstone Chambers - Coronavirus and civil liberties in the UK
B) Whether the government should have used the Civil Contingencies Act 2004 is discussed on this blog.
C) Whether the government should have entered a derogation from the European Convention Human Rights is discussed at UK Human Rights blog and at Strasbourg Observers
D) See also
I argue, in this post for the UKHR blog, that the 'lockdown' regulations are incompatible with the ECHR and thus unlawful: https://t.co/sC2vkAIfMC.— Francis Hoar (@Francis_Hoar) April 21, 2020
This is a version of a more detailed paper published here: https://t.co/Y4J3yPMvu3
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