Were the March 2020 lockdown restrictions lawfully imposed? (Part 2) — Emmet Coldrick

25 September 2020 by

The Prime Minister announces the lockdown on 23rd 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.

The first article in this two-part analysis examined 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”. It can be found here.

This 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.

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

This is the second part of a blog post on this topic.  The first part concluded part-way through a discussion of whether the Regulations 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”.

Proper approach to interpretation where fundamental rights are in issue

A troubling feature of the section of the judgment in Dolan that deals with the ultra vires issue is that it makes no reference to the gravity of the restrictions on liberty imposed by the Regulations or of the fact that, on the Secretary of State’s case, the Act confers powers to impose still graver restrictions on fundamental rights.  Instead, the judgment refers blandly at paragraph 43 to “the adoption of a range of measures”.

It is also regrettable that, while glossing over of the seriousness of the interference with fundamental rights that would be permitted if his interpretation of the Act were correct, the Secretary of State stressed the “threat”, submitting that “… it would be absurd if the provisions were to be read otherwise given the nature of the public health threat …” (judgment para. 36).  That approach to the question of the scope of the Secretary of State’s powers is redolent of the kind reasoning that characterises justifications of rule by diktat and is the antithesis of the rule of law.  A decree that no one may leave her home without reasonable excuse, or gather with more than one other person in a public place, is the sort of restriction that might be imposed by a totalitarian regime or an invading foreign power.

It is welcome that in his Reasons for granting permission to appeal, Hickinbottom LJ noted that “… not only did/do the challenged Regulations impose possibly the most restrictive regime on the public life of persons and businesses ever – certainly outside times of war – but they potentially raise fundamental issues concerning the proper spheres of democratically-accountable Ministers of the Government and judges”.

It is the responsibility of the judiciary to uphold the principle that state coercion must not be used except where permitted by law.   In R v Secretary of State for Health, ex p Imperial Tobacco [2001] 1 W.L.R. 127 at 142, Lord Millet said:

I wish to express my profound disagreement with some of the observations made by the Court of Appeal in regard to what they saw as an impermissible attempt to interfere with the government’s legislative programme. This raised an important constitutional issue concerning the relationship between the executive and the judiciary. The relevant constitutional doctrine is encapsulated in a passage from Dworkin’s Law’s Empire (1998), p 9:

The rule of law requires that state coercion shall always be backed by law. The state’s force must not be used or withheld, no matter how useful that would be to the ends in view, no matter how beneficial those ends, except as licensed or required by law—i e by valid legislation or decisions of the courts having the effect of making law”

It is the responsibility of the judges to ensure that this principle is observed and to inquire into the validity of any law which is invoked by the state to support its actions (emphasis added)

Those observations were made in context of a challenge to proposed public health legislation relating to the smoking of tobacco.  They are just as apposite, or more apposite, in the present context, which concerns state coercion of an extraordinarily far reaching extent.

In a famous passage in R v Secretary of State for the Home Department, ex p. Simms [2000] 2 AC 115 at 131, Lord Hoffmann stated:

Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document (emphasis added).

That statement of the law was endorsed in Anufrijeva [2004] 1 AC 604 at 621 [27] as applicable not only ECHR rights but to fundamental rights beyond the four corners of the Convention.  It was further endorsed in AXA General Insurance [2012] AC 868 at 945 [151]-[152]:

The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.

If it cannot be said to be clear that the statutory intent in sections 45C(4)(d) and 45C(6)(a) of the 1984 Act was to confer on the Minister powers co-extensive with those conferred on the courts, that is surely at least a possible and credible reading of the Act, such that there is ambiguity and the principles established by the Simms line of authority are applicable.

The issue arising here is not merely as to the restrictions in the Regulations.  If the Secretary of State’s case is correct, he is entitled to impose, directly or indirectly, every type of restriction referred to in section 45G(2), without a need for the section 45G(1) conditions to be met.

He could thus, for example, require any person or group of persons or the entire population of England or any part thereof to be detained, isolate or submit to medical examination.  It is obvious that the subordinate legislative power contended for would include powers interfering with fundamental rights.

When considering whether the Secretary of State’s powers to impose “a special restriction” extend beyond the powers conferred by the Act on the courts, one is thus faced with a choice between:

  1. An interpretation of the Act, asserted by Mr Dolan, which accords with the ordinary language of section 45C(6)(a) and which does not involve the conferring of any power to interfere with fundamental rights other than the power (which on any view was intended) to impose the same restrictions as can be imposed by order of a court on the application of a local authority; and
  2. An interpretation of the Act, asserted by the Secretary of State, which in effect regards it as implicit – in a definition, in s.45C(6)(a), expressly and solely by cross reference to the powers conferred by Part 2A on justices of the peace – that the Secretary of State was to have far greater powers than the powers conferred on the courts, including far greater powers to interfere with fundamental rights.

The former interpretation clearly should be preferred in light of the Simms line of authority.

Statutory purpose

Lewis J was of the view that considerations of statutory purpose support the Secretary of State’s case.  In paragraph 43 of the judgment, he stressed that “the whole purpose was to enable the minister to address the spread of infection”.

However, that is the sort of ‘cart before the horse’ approach that was deprecated by the Supreme Court in J v Welsh Ministers [2018] UKSC 66; [2019] 2 W.L.R. 82 at 93 [24].  General statements of statutory purpose are of no real assistance in interpreting the ambit of the “special restriction” sub-category of powers.  Wide powers to make subordinate legislation are undoubtedly conferred by section 45C.  But it does not follow that sections 45C(4)(d) and 45C(6)(a) should be taken to have been intended to confer not powers co-extensive with those conferred on the courts but much wider powers.

As Hickinbottom LJ observed when granting permission to appeal “the challenged Regulations impose possibly the most restrictive regime on the public life of persons and businesses ever – certainly outside times of war”.  It cannot be inferred from the wide statement of purposes in section 45C(1) that Parliament must have intended that the Secretary of State should have the power to impose such a regime.

The explanatory memorandum

Lewis J also considered that the explanatory memorandum to the 2008 Act supports the Secretary of State’s case.  It referred to “updating” the law.  But there is nothing in it to suggest that the updating was intended to confer new and extraordinarily far reaching powers to interfere with fundamental rights.

The explanatory memorandum referred to SARS and new WHO  International Health Regulations 2005 (“IHR 2005”).  That may have been used to bolster a submission on behalf of the Secretary of State that his “powers were not limited to making orders in relation to specific individuals or groups of individuals and … [it] would be absurd if the provisions were to be read otherwise given the nature of the public health threat and the purpose underlying the 1984 Act which was to enable measures to be taken to address the threat of epidemics such as serious acute respiratory diseases or SARS” (judgment [36]).

Not only does such reasoning conveniently conflate the various categories of powers conferred by Part 2A, it proceeds on an erroneous assumption that it is obvious that Parliament understood and intended that a power to impose wide ranging restrictions on the liberty of population as a whole was needed to deal with the threat of epidemics such as SARS.

Article 18.1 of the IHR 2005 includes a list of the sort of recommendations that may be issued by the WHO to State Parties with respect to persons.  It does not include the sort of ‘lockdown’ measures (e.g. prohibiting the entire population from leaving their homes) that the Secretary of State contended with bluster were so obviously intended that it would be “absurd” to read the Act otherwise.  SARS may have been recognised as a “new threat” but it does not even begin to follow that the statutory intent in Part 2A was to afford the Secretary of State colossal powers to restrict the liberty of the population as a whole.

Were the s.45G(1) requirements satisfied here?

Lastly as regards the “special restriction” power is the question of whether the requirements of section 45G(1), if applicable, were satisfied in this case.  The answer is no.  ‘Anyone might have it’ reasoning is plainly insufficient to satisfy the requirements of section 45G(1).  Such an approach would radically expand not only the powers of the Secretary of State but the powers of magistrates’ courts.

The residual category of powers

If the analysis above is correct, the Regulations cannot be justified as lawful under the ‘special restrictions’ power.  Thus, the Secretary of State would have to fall back on an argument that the Regulations are lawful by virtue a residual power to impose such restrictions.

At first blush, there is some attraction in the point – referred to in paragraphs 41 an 42 of the judgment – that the list in section 45C(4) of “restrictions or requirements on or in relation to persons, things or premises” (s.45C(3)(c)) is prefaced by the words “include in particular”.  It appears that those words implicitly acknowledge a category of regulation imposing “restrictions or requirements on or in relation to persons, things or premises” other than the 4 categories set out in section 45C(4).  Thus, so the argument would go, even if Mr Dolan is right that on “special restriction” power issue, that does not present a problem.  The Secretary of State was entitled to exercise a residual category of section 45C(3)(c) powers, not further defined in section 45C(4), to make the Regulations.

However, that argument does not bear scrutiny.  First, it would be very surprising if the Act, while carefully circumscribing the Minister’s “special restriction” powers by reference to the detailed and specific powers conferred on justices of the peace, simultaneously conferred on the Minister an unfettered general power to impose, in relation to the population as a whole, such restrictions and requirements as he thinks fit on or in relation to persons, things or premises (see by analogy J v Welsh Ministers [2018] UKSC 66; [2019] 2 W.L.R. 82 at 94 [27]).

Secondly, that would be all the more surprising in circumstances in which his “special restriction” powers are made subject to conditions that are not applicable to any residual powers under section 45C(3)(c).  The “serious and imminent threat to public health” condition in section 45D(4) does not apply to any residual powers under 45C(3)(c).  The exclusion in section 45D(3) of powers to require persons to submit to medical examination, be removed to or detained in a hospital or other suitable establishment or be kept in isolation or quarantine is applicable to any residual powers under 45C(3)(c).  The absence of such conditions and limitations is a strong indication that Parliament did not intend that any undefined residual powers should extend to the imposition of the sort of restrictions referred to in section 45G(2).

Thirdly, the Simms line of authority is again in point.  The words of section 45C(3) are general in nature: “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 Simms principle is engaged and that such general words should not be read as providing a warrant for subordinate legislation interfering with fundamental rights.

Fourthly, adopting the words of Baroness Hale in J v Welsh Ministers (cited above) at [29]), it is doubtful, to say the least, whether the European Court of Human Rights would regard an ill-defined and ill-regulated general power to impose restrictions and requirements on and in relation to persons, things and premises as meeting the Convention standard of legality.

As regard statutory purpose and the explanatory memorandum, the points already made could be repeated.

Properly understood, the Minister’s powers under the Act to impose the sorts of restrictions referred to in section 45G(2), and his powers to interfere with fundamental rights, do not extend beyond his “special restriction” powers.  If his “special restriction” powers did not provide a lawful basis for making the Regulations, the Secretary of State’s case is not rescued by any residual power under section 45C(3)(c).

Conclusion

The first instance judgment in Dolan made light work of the question of whether it is arguable that the Regulations are ultra vires.  However, a closer analysis of the 1984 Act, in accordance with established principles of statutory interpretation, reveals that the Regulations were indeed ultra vires with respect to the power conferred by the Act. As such, Mr Dolan’s appeal should be allowed on that issue.

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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