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13th July 2020

Court refuses Judicial Review of lockdown

In the recent case of Dolan & others v (1) Secretary of State for Health and Social care & Another the Court refused to allow a judicial review of the lockdown restrictions imposed by the government under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”). 
In relation to the issues raised the Court came to the following conclusions:

Were the Regulations outside the powers conferred on the Secretary of State by Parliament?

The Regulations were made in exercise of powers conferred by the Public Health (Control of Diseases) Act 1984. Those powers were not limited to placing restrictions on specific individuals or groups; they were broad so as to enable a wide range of measures to combat the spread of infection, including placing restrictions on the entire population.

Has the government acted unlawfully under domestic public law?

  • The government had not fettered its discretion by requiring five tests to be met before lifting the Regulations. The tests were a lawful and rational method of assessing the risks posed and the ability to cope with the virus. While there was legitimate public debate to be had as to which measures should be relaxed and when, it could not be argued that the government’s approach fettered its powers unlawfully. 
  • The government had not failed to take into account relevant considerations such as the effect of the restrictions on public health in general and the economic effects of the restrictions. There was likely to be disagreement as to where the balance should be struck between various health, social and economic considerations but, as a matter or law, it could not be said that the government had ignored those considerations. 
  • The Regulations were not irrational. Although not all scenarios in which contact may occur were restricted, it was nonetheless rational to take steps to reduce the risk of transmission by prohibiting contact. Despite the fact that the risk of mortality to young persons was low, it was not irrational to introduce measures to reduce transmission from that group to other groups.
  • The making and maintenance of the Regulations was proportionate. Ultimately the question of proportionality rests with the Secretary of State. Given what was known about coronavirus in March it was not arguable that the decision to make the Regulations was disproportionate to the aim of combatting the threat it posed to public health.

Do the Regulations amount to a breach of various Human Rights?

Right to liberty
The version of the Regulations in force at the time of the hearing prevented a person from staying overnight elsewhere than their place of residence (or that of their linked household) without reasonable excuse. This did not amount to a deprivation of liberty and in any event it was time-limited and subject to regular review.

Right to respect for private and family life
The aim of reducing opportunity for transmission between households was legitimate. The Regulations did not prevent persons from communicating with family members or meeting them in small groups outside and any interference with the right was proportionate.

Freedom of religion
It may be arguable that the restriction on communal worship involved an interference with this right. However, the Regulations were amended the day after the hearing to allow communal worship for up to 30 people. The Court therefore adjourned this issue and the parties were invited to make further arguments in the context of the new Regulations.

Freedom of assembly and association
The restrictions on movement imposed by the Regulations did impinge upon this freedom. However, they were in pursuance of a legitimate aim and there was no realistic prospect that a Court would find that the interference was disproportionate given the context in which the Regulations were made and the fact that they were time-limited.

Right to property
The First Claimant argued that he had been deprived of business revenue by the Regulations. The Court found that for the purposes of ECHR, property included goodwill but not loss of revenue and insufficient evidence had been submitted to show an unlawful interference with his property.

For more information on any of the items raised in this article please contact Emma Elston by clicking here.
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