Dolan’s latest lockdown defeat

3 December 2020 by Rosalind English

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.

Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.

Legal background

The appellants (led by 1 Crown Office’s Row’s Philip Havers QC) challenged Lockdown regulations made in response to the Covid-19 pandemic on 26 March 2020. Their argument was that the regulations imposed sweeping restrictions on civil liberties which were unprecedented and were unlawful on three grounds. First, the Government had no power under the legislation they used to make the regulations, namely the Public Health (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008 (“the 1984 Act”). Secondly, they were unlawful under ordinary public law principles (failing to take account of relevant considerations, fettering of discretion); and thirdly they violated a number of the Convention rights which are guaranteed in domestic law under the Human Rights Act 1998 (“HRA”). Although the regulations were amended on several occasions and have since been repealed, the appellants contended that it remained important that the legal issues which arose should be authoritatively determined in the public interest.

On behalf of the appellants Philip Havers QC submitted that the judge was wrong to refuse permission to bring the claim for judicial review, because the grounds were properly arguable.

Arguments before the Court

The respondent secretary of state argued that the appellants’ current claim was academic. The regulations under challenge had been repealed. The crucial question was whether, nevertheless, the Court of Appeal should permit the claim for judicial review to proceed in the public interest and, if so, on what grounds.

Because of the enormity of the restrictions, their enforcement, and their quickly changing nature, it is encouraging that the Court of Appeal did not dismiss the entirety of Mr Dolan’s claim as “academic” and not worth allowing forward.

We have come to the conclusion that it would serve the public interest if this Court itself were to decide that issue now rather than leave it, for example, to be raised potentially by way of defence in criminal proceedings in the Magistrates’ Court and no doubt on appeal from there to the higher courts.

… the question whether the Secretary of State had the vires to make regulations of this type continues to be a live issue even though the particular regulations under challenge have been repealed. New regulations continue to be made under the same enabling power. [41]

Accordingly the Court of Appeal granted permission to bring this element of the claim for judicial review. in the public interest for the court to exercise its discretion to permit the claim to proceed, given that vires continued to be a live issue, R. v Secretary of State for the Home Department Ex p. Salem [1999] 1 A.C. 450. I set out the details of this element of the case in my earlier post on Dolan, suffice it to say here that the appellants maintained that the 1984 Public Health Act only authorised the government to endow Justices of the Peace, not the executive itself, with the power to make restrictions on the population generally, or an individual or a group of individuals. But the Court found force in the respondent’s argument that amendments the government decided to make in the Health and Social Care Act 2008 to update the 1984 legislation were made in order cater for the possibility of a much greater public health response to a widespread epidemic. The Court also observed that Section 20(1) of the Civil Contingencies Act 2004 provided for the making of emergency regulations if certain conditions in that provision were satisfied, including that existing legislation could not be relied upon without risk of serious delay. Therefore, the secretary of state had power to make the Regulations. Permission to claim judicial review on the power or vires of governments generally was granted in the public interest, but this particular argument failed on its merits.

All of the other appellants’ challenges, that the government unlawfully fettered its discretion by following the advice of one cohort of scientists whilst not attending to others; that the government acted irrationally by taking a cartwheel to crack a nut; and the various arguments raised under the ECHR Articles 5, 8, 9, and 11 were given short shrift, because these all are rights that have clawback provisions in the interests of public health. The regulations were not considered to be “deprivation of property” under Article 1 Protocol 1, given the wide discretion afforded to the executive and the fact that the balance to be struck would have to take account of the financial support measures introduced, nor were children deprived of their right to education under Article 2 Protocol 1 because there was no order that schools had to close or education had to cease. 

We come at last to the argument that the secretary of state had unlawfully fettered his discretion when considering the policy of lockdown.

The respondent’s application of the various tests before considering easing the initial lockdown was not a fettering of his discretion, but an exercise of governmental policy as to how that discretion would be exercised. The principle against fettering discretion did not prevent a public authority from adopting a strict policy. What it did do is to prevent it from being “willing to listen to anyone with something new to say”: see  British Oxygen Co Ltd v Board of Trade [1971] AC 610, at 625 (Lord Reid). That is not what the Secretary of State did on the facts of the present case. At all times it has been possible for those who disagree with the Government to make representations to invite it to ease restrictions or to do so earlier than in fact occurred. That was open to Parliamentarians as well as to others in society. There were no grounds on which to argue that the secretary of state had failed to take account of relevant considerations or had acted irrationally.

The Court’s Conclusions

i) Permission to bring a claim for judicial review was granted but limited to Ground 1 (the vires argument).

ii) The substantive claim for judicial review was retained within the Court of Appeal and not remitted to the High Court.

iii) The CA dismissed the claim for judicial review on Ground 1. The Secretary of State did have the power to make the regulations under challenge.

iv) The CA refused permission to appeal against the decision of Lewis J insofar as he refused permission to bring a claim for judicial review in respect of Ground 2 (the domestic public law arguments) and Ground 3 (the arguments under the HRA). Those grounds were now academic, because the regulations under challenge had been repealed, and, in any event, they were not properly arguable.