Legal Challenge to Lockdown

27 May 2020 by Rosalind English

Philip Havers QC of 1 Crown Office Row will be leading a challenge to the lockdown measures adopted by the government in response to the Covid-19 pandemic.

Mr Havers is instructed with junior counsel Francis Hoar. Michael Gardner of Wedlake Bell is solicitor to the client, leading businessman Simon Dolan. A very short summary of the grounds of action can be found on our News Page, but here I will attempt to gather together the points set out in the 22 page letter before action to Health Secretary Matt Hancock.

The legal team make the point at the outset that their client Simon Dolan’s company, Jota Aviation, has in recent weeks made numerous flights to transport vital PPE equipment for NHS healthcare professionals and to repatriate British people stranded abroad, as well as flying daily for the Italian Post Office to help keep their goods moving.

They challenge the lawfulness of the Health Protection (Coronavirus) (England) Regulations 2020 (as amended) on the following grounds:

1. They are ultra vires s45C of the Public Health (Control of Diseases) Act 1984, in that they are disproportionate and unlawfully fettered the government’s discretion to consider less draconian measures. The government also failed to take into account relevant factors such as the uncertainty of the science, the impact on the economy, as well as the effect of the restrictions on public health, including deaths, particularly from untreated or undiscovered cancer and heart disease, and the aggravation of mental health problems and domestic violence as a result of the measures.
2. They are also unlawful under the Human Rights Act in that the restrictions constitute a disproportionate breach of fundamental rights and freedoms in the European Convention. In particular they erode the rights protected by Articles 5 (right to liberty), 8 (right to autonomy and respect for privacy and family life), 9 (right to religious freedoms and the implied right to worship), 11 (right to assembly) and 14 (right to enjoy Convention freedoms without discrimination: women, for example, are disproportionately affected by the domestic violence that has more than doubled during the ‘lockdown’). The measures also breach Articles 1 (right to not to be deprived of property including business interests) and 2 of Protocol 1 (right to education) of the European Convention on Human Rights and Fundamental Freedoms 

The claimant further contends that the decision of the Secretary of State to maintain each of the restrictions provided for by the Regulations in the review he conducted on 16 April 2020 was ultra vires the 1984 act for the same reasons.

The legal team also request that the Government disclose minutes of the meetings of the Scientific Advisory Group for Emergencies (‘SAGE’) since the beginning of 2020. Failure to do so will result in an application for disclosure if proceedings commence.

In the event that proceedings must be issued, the claimant will ask that the Court exercises its discretionary remedy to quash the Regulations but only after a short but sufficient period

within which a Minister may lay regulations under the CCA that satisfy the requirements of domestic law and the Convention by being the least restrictive means of obtaining the objective of reducing the spread of the coronavirus while not causing disproportionate harm

The gravamen of the claimant’s complaint is that the part of the 1984 Act from which the delegated power to make the Regulations purportedly derives, s 45C(1) and (3(c), is limited to providing for circumstances in which decisions may be made by a public body to impose a ‘special restriction or requirement’ on an individual or a group of persons; and that it does not allow secondary legislation imposing restrictions on the entire country. 

Primary legislation, it is contended, may not authorise conduct that would otherwise constitute a trespass or common law imprisonment save where sanctioned by express words or necessary implication in the statute. (Morris v Beardmore [1981] AC 446, 455; R (Gedi) v Home Secretary [2016] EWCA Civ 409, [2016] 4 WLR 93). The Regulations (especially since their amendment requiring persons not to remain outside their home without a reasonable excuse) would require each individual in England to be subjected to the tort of false imprisonment (R (Jalloh) v Home Secretary [2020] UKSC 4).

The letter also contains references to scientific material and evidence of the relative merits of alternative measures taken by other jurisdictions that at least demonstrate

a real controversy amongst experts in the field about the efficacy and effectiveness of ‘lockdowns’ to reduce viral spread; and contradict the suggestion it is so much more effective than less regressive measures such as to justify the extreme impact it has on the rights and freedoms considered above.

The Court should also take into account that Professor Neil Ferguson, the epidemiologist whose paper was key to the government’s imposition of the Regulations,

himself predicted up to 138,000 deaths from vCJD [the human equivalent of “mad cow disease”], a disease that has killed only around 150 people to date.

In summary, says the letter, the harms caused by the Regulations are exceptional.

Indeed, there is a strong possibility that they could cause the greatest harm to the country’s economy, in peacetime, for 100 years. Each of these harms will grow greater the longer the Regulations remain. 

The government has indicated it intends to oppose the claim, having responded to a letter outlining Mr Dolan’s proposed action by saying his case is not open to legal challenge. Swift J has given the government until 12 June to file a reply.