Tuesday, 1 December 2020

Coronavirus Restrictions ~ Regulations from 2 December 2020 ~ Dolan Judicial Review

NOTE: From 6 January 2021 new law applies. This post has been retained here for historical purposes.

December begins with a cold and frosty morning and the publication of the latest Coronavirus restrictions legislation applicable to England

The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020. (SI 2020/1374).

Note: Wales, Scotland, and Northern Ireland each have their own separate legislation.

For England, this is a return to a three tier system but it is NOT identical to the earlier three tier system.

The latest statutory instrument brings together the restrictions applicable in each of the three tiers. The result is a lengthy document - 70 pages pdf.

The new Regulations come into force on 2 December 2020 and will expire at the end of 2 February 2021. (What may then follow is almost anyone's guess at the moment)! 

The allocation of areas

of England to the tiers is set out in Regulation 8 and Schedules 1 to 3.

Regulation 14 provides for reviews so that areas may be moved from one tier to another.

There is a new provision relating to Christmas Linked Households (see Regulation 4). Christmas is defined as beginning on 23 December and ending 27 December.

The new Regulations were debated in the House of Commons on 1 December 2020 and were approved by a vote of 291 to 78 - see Hansard 1 December 2020.

UK Government (23 November) - Local restriction tiers: what you need to know

*** Local Authorities ***

Further Regulations have also been laid before Parliament - The Health Protection (Coronavirus, Restrictions) (Local Authority Enforcement Powers and Amendment) (England) Regulations 2020 - (SI: 2020.1375). 

*** The Dolan judicial review ***

The judicial review brought by Mr Simon Dolan and relating to coronavirus restrictions regulations was considered in this earlier post.

On appeal, the Court has ruled that the Public Health (Control of Disease) Act 1984 is a good legal basis for the Regulations - Dolan v Secretary of State for Health and Social Care [2020] EWCA 1605.

The court considered the claim to be now academic because the Regulations under challenge had been revoked. However, the court opted to decide the "vires" issue rather than leave it to be raised  potentially by way of defence to criminal proceedings in the Magistrates' Court. In any event, the vires issue is still a live issue because new regulations continue to be made using the same enabling power.

Held: the Secretary of State has the power to impose the restrictions in the Regulations, not only in relation to an individual or group of persons, but also in relation to the population as a whole.

An application to appeal to the UK Supreme Court was refused -

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