Were the March 2020 lockdown restrictions lawfully imposed? (Part 1) — Emmet Coldrick

24 September 2020 by

How the lockdown was reported by the newspapers in March. Image: The Guardian

Emmet Coldrick is a barrister at Quadrant Chambers, London.  The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.

This first article will examine whether the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 fall within the Minister’s powers under section 45C(4)(d) of the Public Health (Control of Disease) Act 1984 to impose “a special restriction or requirement”. The second article will discuss the proper approach that the court should take where fundamental rights are in issue and argue that the Regulations were in fact ultra vires.

These articles are a condensed version of a full analysis which may be found here.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) contained the most draconian restrictions on the liberty of the general population ever imposed in England.  They purported to create several new criminal offences (see reg. 9), including an offence of contravening a regulation that “… no person may leave the place where they are living without reasonable excuse” (see reg. 6) and an offence of contravening, without reasonable excuse, a regulation that (subject to limited exceptions) “no person may participate in a gathering in a public place of more than two people” (see reg. 7).

These extraordinary new laws were made without prior debate in Parliament.  The published text of the Regulations records that they were made and came into force at 1.00 p.m. on 26th March 2020 and were laid before Parliament only thereafter.

On any view, a power to make – by the stroke of a minister’s pen – such new laws would be an awesome one.  The Secretary of State claims that he had the power to make the Regulations under Part 2A of the Public Health (Control of Disease) Act 1984 (“the 1984 Act”).  That has been challenged by Mr Simon Dolan, who has brought judicial review proceedings contending that the Regulations were ultra vires.

Mr Dolan’s challenge is pending in the Court of Appeal.  It was dismissed as unarguable by Lewis J at first instance (Dolan v Secretary of State for Health [2020] EWHC 1786 (Admin) (6th July 2020).  But the Act presents difficulties in interpretation that were not grappled with in the judgment.  I make a case below that the Regulations are ultra vires and that Mr Dolan’s appeal should be allowed.

Part 2A of the 1984 Act

The relevant enabling provision is section 45C(1), which states:

The appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).

The Act goes on in effect to create several categories and sub-categories of regulations under section 45C and to impose special conditions in the case of some of them.  Section 45C(3) provides that:

Regulations under subsection (1) may in particular include provision—

(a)       imposing duties on registered medical practitioners or other persons to record and notify cases or suspected cases of infection or contamination,

(b)       conferring on local authorities or other persons functions in relation to the monitoring of public health risks, and

(c)        imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.

It is clear that the Regulations fall squarely within the section 45C(3)(c) category.  They imposed “restrictions or requirements on or in relation to persons, things or premises”.  Moreover, the introduction to the Regulations states in terms that they were made in response to a threat to public health.

The Act goes on in effect to divide the section 45C(3)(c) category into several sub-categories.  Section 45C(4) provides that:

The restrictions or requirements mentioned in subsection (3)(c) include in particular—

(a)       a requirement that a child is to be kept away from school,

(b)       a prohibition or restriction relating to the holding of an event or gathering,

(c)        a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains, and

(d)       a special restriction or requirement.

In view of the “include in particular” wording, it would seem that this was not intended to be an exhaustive list.  One thus has 5 sub-categories of s.45C(3(c) regulations: the 4 sub-categories expressly set out at section 45C(4)(a) to (d) and a residual category of other regulations “imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health” not falling within any of the 4 defined sub-categories.

The s.45C(4)(d) sub-category (regulations imposing or enabling the imposition of “a special restriction or requirement”) is treated differently to the other 4 sub-categories, with additional statutory conditions applicable.  The phrase “special restriction or requirement” is defined in section 45C(6)(a) as “a restriction or requirement which can be imposed by a justice of the peace by virtue of section 45G(2), 45H(2) or 45I(2)”.  The “special restriction” category is thus of regulations imposing, or enabling the imposition of, a restriction or requirement which can be imposed by a justice of the peace on or in relation to persons (s. 45G(2)), things (s. 45H(2)) or premises (s.45I(2)).

The Act then goes on distinguish between 2 types of “special restriction” regulations.  First, there are regulations that do not directly impose restrictions but instead enable their imposition by administrative decision.    Pursuant to section 45D(4), such regulations cannot be made unless “the regulations are made in response to a serious and imminent threat to public health” or “imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed”.  Such regulations must provide for a right to appeal the decision to a magistrates’ court (see s.45F(6)).

The second type is of regulations which directly impose a “special restriction” (see s.45D(5)(b)).  In this case, there is no requirement of serious and imminent threat to public health and there is no right of appeal.  However regulations directly imposing special restrictions cannot require that persons submit to medical examination, be detained in a hospital or be kept in isolation or quarantine (see section 45D(3)).

The only categories that that the Regulations could be said to fall within are the second category of “special restriction” (regulations imposing restrictions that can be imposed by a magistrates’ court) or a residual category of restrictions (not amounting to special restrictions) in relation to persons, things or premises.  Whether the Regulations fall within the ambit of the statutory powers to make regulations falling within either category is addressed below.

Power to impose “a special restriction”

Three broad issues arise as to ambit of the “special restriction” category:

  1. Do the requirements stated in section 45G(1) apply to the making of regulations imposing a “special restriction”?
  2. If so, were those requirements satisfied here?
  3. In any case, does the power to make regulations imposing a special restriction extend to a power to impose such restrictions on the entire population?

Issue 1 – overview

Replacing the words “a special restriction or requirement” in section 45C(4)(d) with their full statutory definition in section 45(6)(a), sections 45C(3) and (4) provide that “Regulations under subsection (1) may in particular include provision … imposing or enabling the imposition of … a restriction or requirement which can be imposed by a justice of the peace by virtue of section 45G(2), 45H(2) or 45I(2)”.

Section 45G(2) states:

The order may impose on or in relation to P one or more of the following restrictions or requirements—

(a)       that P submit to medical examination;

(b)       that P be removed to a hospital or other suitable establishment;

(c)        that P be detained in a hospital or other suitable establishment;

(d)       that P be kept in isolation or quarantine;

(e)        that P be disinfected or decontaminated;

(f)        that P wear protective clothing;

(g)       that P provide information or answer questions about P’s health or other circumstances;

(h)       that P’s health be monitored and the results reported;

(i)        that P attend training or advice sessions on how to reduce the risk of infecting or contaminating others;

(j)        that P be subject to restrictions on where P goes or with whom P has contact;

(k)        that P abstain from working or trading.

Pursuant to Section 45G(1), a justice of the peace can only impose such restrictions where she is satisfied that:

(a)     P is or may be infected or contaminated,

(b)       the infection or contamination is one which presents or could present significant harm to human health,

(c)        there is a risk that P might infect or contaminate others, and

(d)       it is necessary to make the order in order to remove or reduce that risk.

Probably the most significant of those conditions is the requirement that the justice be satisfied that P is or may be infected or contaminated.  Where that condition is not satisfied, a justice of the peace would have no power to make any order.  On the Secretary of State’s case, however, the position as regards his powers is radically different.  They are said to be unfettered by the 45G(1) requirements, such that he would be perfectly entitled, for example, to restrict where people go, or who they may have contact with, for the purpose protecting them from a risk of infection – i.e. to restrict them supposedly for their own good.

The statutory definition of “a special restriction or requirement” in section 45C(6)(a) is ambiguous.  It is possible to read it as referring to a restriction of the type that could be imposed by a court if the relevant statutory conditions were met.  But it is also possible to read it as referring to a restriction or requirement that could actually be imposed by a court and so as requiring the relevant statutory conditions to be met.  On the latter reading of the definition in s.45C(6), the ambit of the Minister’s powers to impose a “special restriction” is broadly co-extensive with the powers conferred on the courts by Part 2A.  On the former reading of it, his powers extend well beyond the court’s powers.

Before considering which interpretation is to be preferred, it makes sense to say something about issue 3 (whether there is a power to impose “special restrictions” on the entire population), as it raises similar issues.

Issue 3 – overview

The courts’ powers under section 45G are to impose a restriction in relation to a person (“P”) or, by virtue of section 45J, “a group of persons”.  Thus, as a matter of logic, for the Regulations to fall within the Secretary of State’s “special restriction” powers, it must be the case that either:

  1. the entire population of England can be regarded as “a group of persons”; or
  2. it was the implicit statutory intention that the “special restriction”  power extends beyond the imposition of restrictions that can be imposed by a justice of the peace (namely, restrictions in relation to a person or group) to the imposition of restrictions on the population at large.

Regarding the whole population of England as “a group of persons” would be quite a stretch and is unlikely to have been the statutory intention, particularly as section 45J is concerned primarily with the powers of magistrates.  As regards the second possibility, if the statutory intent was as contended by the Secretary of State, it is rather odd that the Act defines “a special restriction or requirement” expressly and solely by reference to “a restriction or requirement which can be imposed by a justice of the peace” (s.45C(6)(b)).  That issue is considered further below.

Issues 1 and 3 – analysis

The wider statutory scheme

The Secretary of State sought to counter arguments to the effect just mentioned by pointing to the wide words of s.45C(2), which refers to “provision of a general nature”.  The power to make regulations conferred on the Secretary of State by section 45C(1) undoubtedly includes powers to make some provision of a general nature.  However, it does not follow that all of his powers – including the power to impose a “special restriction”, which, unlike his other powers, is defined by reference to the powers conferred by the Act on justices of the peace – must be powers to make provision of a general nature.

There is, however, a point to be made as regards the wider statutory scheme that sheds some light.  The definition in section 45C(6)(a) is applicable equally to the sub-type of regulations directly imposing special restrictions and the sub-type enabling their imposition by administrative decision.  That is illuminating because section 46F(6) confers a right of appeal against decisions imposing special restrictions.  On Mr Dolan’s case, that right of appeal makes perfect sense: the powers conferred on the Secretary of State are co-extensive with the powers conferred on the court and, on any appeal, the court would consider the matter just as it would if the issue were before it on an application made by a public authority.  On the Secretary of State’s case, however, the right of appeal conferred by section 45F(6) gives rise to very surprising results.

If the Secretary of State’s interpretation is correct, he has the power to enable the imposition, by administrative decision, of restrictions of the type set out in section 45G(2) on the whole population, regardless of whether the conditions in section 45G(1) are met.  He could thus, for example, make regulations conferring himself or another person with the power to require the entire population to submit to medical examination, isolate, wear protective clothing, remain at home, avoid all contact with anyone outside their household, or abstain from working.  Thus, patently, the administrative decision-making powers that, on the Secretary of State’s case, could be conferred by regulations are enormous.

Even more surprising is that the ultimate decision-maker in relation to whether such measures should be imposed would be a magistrates’ court, on appeal from the administrative decision-maker.  Such a function in relation to policy matters affecting the population at large is not a function that Parliament ordinarily leaves to magistrates.

The Secretary of State might say in response that the Regulations directly imposed restrictions and so are not subject to a right of appeal.  That is true as far as it goes, but rather misses the point.  The issue at hand is that of the statutory intention as to the scope of the “special restriction” category.  It must surely count strongly against the Secretary of State that, on his case, the Act confers powers to enable the imposition of enormous restrictions on the entire population by administrative decision, with the ultimate decision making power, on appeal, left to a magistrates’ court.  As a matter of common sense – quite apart from considerations of high legal principle, which will be touched on in the second part of this article – the better reading of the sections 45C(4)(d) and 45(C)(6(a) is that the intention was, as Mr Dolan submits, simply to confer on the Secretary of State broadly the same powers to impose restrictions as are conferred by the Act on magistrates’ courts on the application of a local authority.

In part 2, this analysis will be concluded with the correct approach that the court should take to fundamental rights and the ultimate legality of the Regulations being examined in detail.

Philip Havers QC of 1 Crown Office Row is instructed on behalf of the claimant in the Dolan case discussed extensively in this piece. He had no involvement in the writing of the post.

The UK Human Rights Blog has published several other articles arguing the case for and against the legality of coronavirus restrictions, which may be found (in chronological order) here, here, here, here, here and here.

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