Latest on the Lockdown Challenge in the UK courts

9 June 2020 by Rosalind English

Update on 19 June: here are the government’s summary grounds of defence in which the government says that they did not order the schools to close; it was only a “request” (clause 73)

On 26 May, judicial review proceedings were launched in the High Court which not only challenged the lawfulness of the Lockdown Regulations as having been made “ultra vires” under the 1984 Public Health Act, but also claimed that they are disproportionate to the threat posed by Covid-19. Philip Havers QC of 1 Crown Office Row is acting for the claimant: see my post on the launch proceedings here.

This latest communication from the claimant has challenged the legality of the latest lockdown regulations, the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, enforceable from Monday 8 June. (NB whilst there might be changes afoot in respect of people travelling from and within the EU, the current position remains as set out in the regulations which took force this week). The claimant observes that from many weeks of data collected since it first affected the UK, that Covid-19 overwhelmingly affects primarily the elderly and those with pre-existing health conditions, not the “vast majority of the working population.”

Young people and children are scarcely affected at all. Indeed, as of the latest available figures published by NHS England, we note that out of a population of 56 million people in England alone, since the outbreak started, Covid-19 has been cited on the death certificates of just 279 people who died in hospital in England under the age of 60 with no pre-existing health condition. *

Against this background, last month’s decision by the Government to impose what appeared to be, in the claimant’s words, “a somewhat half-baked new ‘quarantine scheme'” for people entering the UK from abroad is another body blow to the UK’s economy. Rumours that this was in the offing first emerged in the second week of May when airlines warned of the “devastating” consequences such a scheme might have.

This “one size fits all” approach, says the claimant, is another example of a disproportionate piece of legislation going much further than necessary to achieve its aim – and causing “huge and unnecessary damage in the process.”

He points out that more than half of these regulations explain who is exempted from complying as opposed to those who will have to comply with them. Exempted persons include lorry drivers, fruit pickers, airline crews and seamen.

Because there are no stipulations as to how they proceed to their homes, the regulations have the effect that someone who is infectious is still allowed to mix on public transport in confined spaces with hundreds of people, for hours if travelling from an airport or seaport.

They can use elevators, go to shops, travel via public transport to obtain supplies, touch surfaces, cough, breath and do all the things that are known to spread the virus.

And what happens when these exempted travellers arrive at their homes? The Travel regulations stipulate that they should self isolate for 14 days. How is this to be enforced?

A source quoted in the Guardian said of the chances of being caught “you would have to be unlucky and stupid” [to be caught disobeying these regulations].

The imposition of this 14 day self-isolation requirement on UK citizens returning from abroad or non UK citizens travelling to the UK will have a “devastating effect” on the aviation and travel industries, already in meltdown by the Lockdown Regulations since March. Very few people in this country, say the claimants, apart perhaps from the very wealthy and those who no longer have to work, are going to book any kind of holiday abroad if on their return they are compelled to take an extra 14 unpaid days off work.

Much as we are rejoicing in our quiet skies and imagining a more responsible future where meetings can be held online rather than by unnecessary return flights to Berlin, New York etc., there is a heavy price to be paid for the “huge fall” in foreign tourists and business people who would normally fill up our hotels, restaurants and principal tourist attractions.

The claimant argues – and I will leave our readers to the details of the claim in the letter itself – that the Travel Regulations are outside the powers granted by the 1984 Public Health Act. That they are also disproportionate and irrational (the unreasonable part of all this being that we impose belated controls over travel now when other European countries introduced these controls back in March, at the hight of infection rates, whilst the arrivals boards at UK airports were alight with flights arriving from all over the world.)

Just one post script regarding the claimants’ request for what’s going on with SAGE. On 29 May, a few days after the launch of this challenge, the Government belatedly published the minutes of 34 such meetings of SAGE.

As regards the “scientific advice”, we cannot see any reference to such scientific advice in any of the most recent minutes of SAGE that have been published so far following our client’s judicial review proceedings. This is in spite of the fact that the proposal to impose a quarantine law was first mooted as far back as 9 May. SAGE does not once mention in any of the May minutes so far published, the need for a new quarantine procedure for incoming international arrivals.

One more quote from the letter, and then I really must let you get on with reading it.

Why, when the Government tells us it has massively ramped up its testing capacity, has no attempt been made to use the testing of incoming travellers for Covid-19 as an alternative or mitigating element to its
travel restrictions? It may not be practicable for there to be testing of all incoming travellers at the point of entry. But there is not even an attempt to offer testing to those who ask for it, as an alternative to selfisolation.
If – as is the case anyway under the Travel Regulations – people who might have Covid-19 are allowed into the country, then why can they not take a test which, if negative, could enable them to be released early from such quarantine or avoid it altogether?
Unless and until the Government can convincingly answer these questions, and address the other factors we have mentioned, there would appear to be very strong grounds for a legal challenge to the Travel Regulations on the grounds of irrationality.

There are other grounds of challenge, which are equally interesting. The claimant asks for a response to these and the forgoing questions by 5pm on Friday 5 June 2020. A reminder: the government had until Friday week (12 June) to respond to the first letter before action.

* [The latest news from the WHO suggests that asymptomatic spread of coronavirus appears to be “very rare” (Monday 8th June]. See also the latest CNN report here.