Lockdown challenge — permission refused

7 July 2020 by Dominic Ruck Keene

The Government will doubtless be relieved.

Mr Justice Lewis has refused permission to bring a judicial review in what is arguably the most comprehensive and wide-reaching challenge brought to date to the legality of the lockdown Regulations and the decision to stop providing education on school premises (save for the children of key workers) in R (Dolan and Ors) v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin).

The Background

Mr Justice Lewis cited with approval the summary of the threat from the Covid-19 pandemic given by Swift J. in R (Hussain) v Secretary of Staste for Health and Social Care [2020] EWHC 1392 (Admin) when considering an application for an interim order to enable a mosque to hold Friday prayers:

The Covid-19 pandemic presents truly exceptional circumstances, the like of which has not been experienced in the United Kingdom for more than half a century. Over 30,000 people have died in the United Kingdom. Many, many more are likely to have been infected with the Covid-19 virus. That virus is a genuine and present danger to the health and well-being of the general population. I fully accept that the maintenance of public health is a very important objective pursued in the public interest. The restrictions contained in regulations 5 to 7, the regulations in issue in this case, are directed to the threat from the Covid-19 virus. The Secretary of State describes the “basic principle” underlying the restrictions as being to reduce the degree to which people gather and mix with others not of the same household and, in particular, reducing and preventing such mixing in indoor spaces. I accept that this is the premise of the restrictions in the 2020 Regulations, and I accept that this premise is rationally connected to the objective of protecting public health. It rests on scientific advice acted on by the Secretary of State to the effect that the Covid-19 virus is highly contagious and particularly easily spread in gatherings of people indoors, including, for present purposes, gatherings in mosques, churches, synagogues, temples and so on for communal prayer.

Mr Justice Lewis summarised the Claimants’ concerns over the appropriateness and proportionality of the restrictions as including the impact on the economy and on jobs and livelihoods of people, the impact on education, and the effect of the measures taken on treatment of other health conditions.

For a more detailed analysis of the arguments being made by the Claimants see my earlier blog article and paper here.

The issues

Mr Justice Lewis unsurprisingly began by highlighting that while the Claimants had raised matters of public debate, the role of the court in judicial review is solely to ensure that a public body is acting within the law, and in a way that did not violate an ECHR right. That meant the court is

not responsible for making political, social, or economic choices. The court is not responsible for determining how best to respond to the risks to public health posed by the emergence of a novel coronavirus. Those decisions, and those choices, are ones that Parliament has entrusted to ministers and other public bodies.

He detailed the wide range of issues that had fallen to be decided at the oral permission hearing as follows:

1. Was the claim brought too late and/or were some of the grounds of challenge now academic?
2. Were the Regulations ultra vires?
3. Had the Health Secretary arguably acted unlawfully by:
   • Fettering his discretion to review the Regulations by requiring that five tests be met before reviewing the Regulations;
   • Failing to take relevant considerations into account in the decision-making process;
   • Acting irrationally in making or maintaining the Regulations; and/or
   • Failing to act proportionately when deciding not to terminate the Regulations (Ground 2D)?
4. Did the restrictions on movement in the Regulations arguably involve a breach of the right to liberty guaranteed by Article 5 of the Convention?
5. Did the restrictions imposed by the Regulations on movement and gathering arguably breach the right to respect for private and family life guaranteed by Article 8?
6. Did the requirement to close places of worship save for certain purposes arguably breach Article 9?
7. Did the restrictions on gatherings arguably breach the right to freedom of assembly and association guaranteed by Article 11?
8. Did the Regulations arguably involve a deprivation of property or an unlawful control on the use of property contrary to Article 1 Protocol 1 and the right to property?
9. Was the Education Secretary arguably requiring schools to close in a manner which involved a breach of Article 2 Protocol 1 and the right to education?

It should be noted also that the claim initially made for unlawful discrimination under Article 14 was not pursued.

The Decision 

Time Limits

Mr Justice Lewis began by dismissing the argument made by the Government that the judicial review was out of time as it had not been brought ‘promptly’ for the purposes of CPR r.54.5. He also permitted the amendment of the Claim Form to challenge the amended forms of Regulations 6 and 7 in force at the time of the hearing (since further amended).

However, in a significant blow to the Claimants’ chance of successfully being granted permission he found that the claim brought against the more draconian original regulation 6 (which initially prohibited leaving home without reasonable excuse) and regulation 7 (which initially prohibited more than 2 people gathering in public) was academic —

The remedy sought is an order quashing the regulation. But the restrictions contained in those regulations are no longer in force as they have been replaced. In those circumstances, a claim for judicial review of those regulations in their original form would serve no practical purposes. While the courts may entertain academic claims if there is a good reason to do so, there is none here. The fact that restrictions may be imposed in future, depending on the progress of the pandemic, does not provide a good reason for reviewing the original versions of the regulations now. Any challenge to a subsequent or replacement regulation would necessarily involve considering the content of that regulation and the circumstances leading to its imposition. Any challenge to later versions of regulations 6 and 7 are, therefore, better considered having regard to the content of the regulation as subsequently made and in the light of the facts and the scientific understanding at that time.

He further went on to hold that

the court on this application has to consider the question of whether there has been any arguable breach of any other Convention right by reference to the facts, and the Regulations, as they are now. Circumstances have changed since the Regulations were made and the position in relation to schools has developed. The court must assess matters as they currently stand.

Ultra Vires

Mr Justice Lewis then considered the issue of whether the Regulations were ultra vires as being beyond the power conferred by the Public Health (Control of Diseases) Act 1984 (“the 1984 Act”).

This issue has been the subject of significant academic debate — see in particular the commentary on this blog and elsewhere by Robert Craig, Tom Hickman QC, Emma Dixon and Rachel Jones, and Lord Sandhurst QC and Benet Brandreth QC.

Lewis J. held that the relevant provisions of the 1984 Act conferred broad powers on the Health Secretary to adopt a wide range of measures to combat the spread of infection from a disease such as Covid-19. The powers were not limited to making individualised regulations in relation to specific individuals, groups or premises. It was clear from the wording of the various sections of the Act that it was intended to enable the addressing the spread of infection and, depending on the nature of the infection in question, that could require adopting of a range of measures.

The explanatory memorandum to the Health and Social Care Act 2008 (which had amended the 1984 Act so as to give the powers in question) confirmed that interpretation as it had explained the requirement to update disease legislation in order to combat new threats such as SARS. Accordingly,

[t]he 1984 Act does therefore confer power on the Secretary of State to make regulations applicable to persons, premises, and things in England as a whole in appropriate circumstances and subject to duty to keep the restrictions under review.

It was therefore unarguable that the Regulations were ultra vires.

Unlawful decision making

Mr Justice Lewis next addressed the arguments made that the Regulations were unlawful for reasons of domestic public law.

In particular, the Claimants’ case was focused on the adoption of the 5 tests that had to be met prior to the restrictions being relaxed, and failure to give consideration to the very small number of deaths of those under the age of 60 who did have any pre-existing health conditions.

The 5 tests are (i) ensuring that the NHS has the capacity to cope, (ii) a sustained fall in the daily death rate, (iii) reliable data to show that the rate of infection is decreasing to manageable levels, (iv) confidence that the range of operational measures needed, such as testing capacity and supplies of personal protective equipment, are in hand, and (v) confidence that any adjustments to the current measures would not risk a second peak of infections

Mr Justice Lewis dismissed the argument that the 5 tests were an unlawful fettering of ministerial discretion, describing them as a “lawful, rational method of assessing the risks posed by coronavirus and the ability to cope with the coronavirus.” He held that the government was “acutely aware of managing the risks it assesses as being posed by coronavirus against overall health considerations (including increases in mortality from other health conditions, not Covid-19, which might have resulted from measures taken to deal with coronavirus), and the effect on the economic and social life of the nation.”

The Government had lawful aims of saving lives and of returning to life as close to normal as possible, for as many people as possible, as fast and fairly as possible. The Government had taken lawful considerations into account of acting in ways that avoided a new epidemic, minimised lives lost, and maximised health, economic and social concerns. He concluded that

The government places particular weight on particular aims. The claimants may take different views on the different priorities and may make a different choices as to what measures should be relaxed and when. Those are matters of legitimate public debate. But it cannot arguably be said that the approach of the government involves unlawful fettering of its powers.

Similarly, Mr Justice Lewis held that the government had taken into consideration the various concerns identified by the Claimants over the uncertainty of scientific evidence, the effect of the restrictions on public health generally (including non-Covid-19 deaths), the increased incidence of domestic violence, the economic effects of the restrictions, the medium and long-term consequences of the restrictions and whether less restrictive measures could have been adopted.

Again, he concluded that

The ultimate decision on how to respond, given the spread of coronavirus and the consequences of the restrictions, is a matter of difficult health, social, and economic choice. People may legitimately disagree on where the balance should be struck. But, as a matter of law, it cannot be argued that the government has not had regard to those considerations in reaching its decision on where the balance should be struck.

It was also not irrational to take steps to reduce opportunities for transmission from persons in groups were death rates were low to other groups —

The fact that not all situations where contact, and potentially transmission, may occur are subject to restrictions does not make it irrational to adopt a set of measures which are intended to bear down on the risk of transmission by prohibiting other contacts.

Finally, the Regulations satisfied the requirement under the 1984 Act for the restrictions to be proportionate to what was sought to be achieved.

Mr Justice Lewis noted that the context for the Regulations was the

emergence of a novel coronavirus which had already caused deaths throughout Asia and western Europe. On 12 March 2020, the World Health Organisation announced that there were now more than 20,000 confirmed cases and almost 1,000 deaths in Europe. Scientific knowledge and understanding of coronavirus were limited but the disease was highly infectious and could be transmitted from human to human.

He concluded that, against that background, it was unarguable that the decision to make the Regulations and to impose the restrictions contained within them was in any way disproportionate to the aim of combatting the threat to public health posed by the virus. Further, the Regulations had been reviewed in light of subsequent developments and a number of the restrictions had been removed or eased.

Article 5 ECHR

Mr Justice Lewis examined whether the amended Regulation 6 could amount to a deprivation of liberty under Article 5, noting that persons will be in their own homes overnight (with any others in their household), will have access to the usual means of contact with the outside world and will be able to leave home during the day (subject to restrictions on gatherings). The prohibition was only on staying overnight at a place other than their home. Furthermore, the restriction is limited in time and has to be reviewed regularly.

Noting that the test for deprivation of liberty under Article 5 was different to that for unlawful detention in tort, he concluded that

The facts fall far short of anything that could realistically be said to amount to a deprivation of liberty within the existing case law.

Article 8 ECHR

Mr Justice Lewis further held that given the limited nature of the restrictions (which permit persons to live with members of their household, use modern methods of communication and meet family and friends outdoors, subject to the restriction on gatherings), the gravity of the threat posed by the virus and the fact that the Regulations were to be regularly reviewed, there was no arguable basis that the restrictions on family and private life were disproportionate.

Article 9 ECHR

Mr Justice Lewis indicated that he was minded to follow Swift J. in Hussain and find that it was arguable that the restriction on communal worship did represent an unlawful interference with Article 9.

However, his consideration of whether or not the requirement to close places of worship for communal worship was postponed in light of the passing of new Regulations after the hearing that appeared to permit such worship for up to 30 people.

Article 11 ECHR

Mr Justice Lewis held that while there was an attraction in leaving the matter to be considered at a full hearing, there was no realistic prospect of Regulation 7 being an disproportionate interference with the right to free assembly. He referred to the ‘possibly unique circumstances’ in this case, stating that:

The context in which the regulation was made was one of a pandemic where a highly infectious disease capable of causing death was spreading. The disease was transmissible between humans. The scientific understanding of this novel coronavirus was limited. There was no effective treatment or vaccine. The regulation was intended to restrict the opportunities for transmission between humans. The regulation therefore limits the opportunity for groups of individuals to gather together, whether indoors or outdoors. The regulation was time-limited and would expire after 6 months in any event. During that period, the government was under a duty to carry out regular reviews and to terminate the restriction if it was no longer necessary to achieve the public health aim of reducing the spread and incidence of coronavirus within the population.

Article 1 Protocol 1

Mr Justice Lewis held that on the evidence submitted by the Claimants in question, they had not proved that they had suffered any deprivation of any possession or suffered any loss or damage as a result of the Regulations. He emphasised that

[t]his court is concerned with the position of the current three claimants and the current evidence before it. It is not appropriate to speculate about who else might bring a claim and what evidence they might be able to produce.

Article 2 Protocol 1 

Mr Justice Lewis agreed with the government that there had not been any legal prohibition preventing attendance at school. He further held that the current policy of the government was to encourage children to attend at school. Accordingly, there was no remedy that would serve any real practical purposes in the circumstances where the government was now aiming at the result sought by the Claimants. This element of the claim was therefore academic.

Comment

The refusal of permission is clearly a significant development in the various legal challenges being brought against the lockdown.

It remains to be seen whether the Claimants will make a further application for permission to appeal to the Court of Appeal.

If so, the most likely targets for challenge in Mr Justice Lewis’s decision would appear to be the issues of whether the 1984 Act can indeed be read as enabling the passing of restrictions affecting the entire population, whether Article 5 is engaged at all, and whether the practical effect of the measures taken in respect of education amounted to an arguably unlawful failure to provide education (i.e. not just to prevent education being provided).

Given the ongoing effect of the Regulations and the relevant Government guidance in the ability of business in certain sectors (in particular hospitality and tourism) to operate in a commercially viable manner, the failure of these Claimants to argue that they had suffered any interference with their Article 1 Protocol 1 rights is also not likely to be determinative of any subsequent challenge to the Regulations on the basis of Article 1 Protocol 1 brought by other individuals who would potentially be able to prove the necessary impact.

Dominic Ruck Keene is a barrister at 1 Crown Office Row.

Philip Havers QC, also of 1 Crown Office Row, was lead counsel to the Claimants in this case. He was not involved in the writing of this post.