In an earlier post, we covered a challenge brought by the entrepreneur Simon Dolan and others (“the Claimants”) seeking to challenge the lockdown measures introduced in England following the outbreak of COVID-19 (“Dolan 1”). At that stage, the Administrative Court had refused permission to apply for judicial review in July on the basis that the Claimants’ grounds of challenge were either academic or could not be reasonably argued.

The Claimants launched an appeal against the decision, and the Court of Appeal (through an order of Hickinbottom LJ dated 4 August 2020) ordered that the grounds should be considered by the court at a rolled up hearing to give the Claimants an opportunity to make their case on arguability. The matter was heard yesterday and today (29 and 30 October), and judgment has been reserved.

Proceedings in the Court of Appeal

Hickinbottom LJ’s order did not itself grant permission for the appeal to be heard on the substantive issues. Hickinbottom LJ’s order observed that the appeal raised important issues as the challenged regulations “impose possibly the most restrictive regime on the public life of persons and businesses…outside times of war…” and that “they potentially raise fundamental issues concerning the proper spheres for democratically-accountable Ministers of the Government and judges”. On that basis­, he ordered a rolled up hearing i.e. a hearing where the court would consider permission first, and if permission were granted in any aspect of the case, for the substantive arguments to be heard at the same time. Hickinbottom LJ also agreed with the Claimants that the case warranted expedition – in fact, the case was originally listed for 23 September but was adjourned to this week.

In practice, the distinction between the permission stage and substantive stage was blurred during this week’s hearing and the Court heard some substantive arguments from both sides. That is likely to be reflected in the judgment. Indeed, even if permission is refused, the Court may end up commenting on substantive aspects of the claim rather than simply giving brief reasons for refusing permission.

In the course of their written and oral submissions, the Claimants argued:

  1. That each of their judicial review grounds challenging the regulations were in fact arguable and should be upheld. A summary of these grounds is set out in our previous post and can also be found at paragraph 24 of Mr Justice Lewis’ judgment in the Administrative Court. While the original claim was filed against the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as amended) (“the Lockdown Regulations”), the focus of the appeal is on the Health Protection (Coronavirus, Restrictions) (England) (No 2) Regulations 2020 (“the No. 2 Lockdown Regulations”) which came into force on 3 July 2020. The oral hearing also touched on the patchwork of regulations setting out the new three-tier system in England, which has superseded the No. 2 Lockdown Regulations to a large extent.
  2. That the Administrative Court erred in refusing the Claimants permission to amend their grounds to allow a challenge to the Secretary of State’s decision to instruct schools to close.
  3. That the Administrative Court erred in finding that certain grounds of challenge were ‘academic’, especially given the risks that restrictions (including a full national lockdown) could be re-imposed.

As we note above, the Lord Chief Justice, Lady Justice King and Lord Justice Singh have now reserved judgment after the two-day hearing.

Second challenge (“Dolan 2”)

In parallel, Mr Dolan has also launched separate proceedings against the Secretaries of State for Health and Social Care, the Home Department, and Business, Energy and Industrial Strategy. This claim has been brought by Mr Dolan along with Cripps Barns Group Limited (a wedding events organiser) and another individual (Lauren Monks). This claim targets specific regulations introduced by the Government – specifically the regulations introducing the ‘Rule of Six’, the 10 PM curfew, the restrictions on gatherings, the wearing of masks, and the restrictions on venues to not take bookings of more than six people and to prevent ‘mingling’. These measures were either introduced through standalone regulations or by amending the No. 2 Lockdown Regulations to introduce new provisions. It was also suggested during the proceedings in the Dolan 1 appeal that the grounds in Dolan 2 were being extended to cover the new regulations setting out the new three-tiered system in England.

The Claimants in Dolan 2 initially sought an interim injunction to prevent the Government from enforcing the two parts of the No 2 Lockdown Regulations and the associated guidance that restricts the numbers of those who may attend marriages and wedding receptions to 15. Swift J refused interim relief through an order of 15 October 2020.

On the substantive case, there appear to be four principal grounds of challenge:

  1. That the regulations in question contravene the Public Health (Control of Infectious Disease) Act 1984 (“1984 Act”) under which they were made on the basis that a) the Government has made improper use of the emergency procedure under section 45R of the Act; and b) the regulations impose greater restrictions than permitted under the 1984 Act.
  2. That the measures introduced are disproportionate to the objective of reducing the transmission of COVID-19, and amount to a disproportionate interference with the Claimant’s rights under Articles 8, 9, 11 and Article 1, Protocol 1 of the ECHR.
  3. That the Government is effectively fettering its discretion by setting out ‘five tests’ for imposing and removing restrictions – none of which, the Claimants argue, factor in the serious harms caused by the regulations.
  4. A supporting witness statement from the Claimants’ solicitors also suggests that the Claimants intend to argue that the decision to introduce the regulations was not made on the basis of any specific scientific evidence.

We also understand that the Speaker of the House of Commons, Sir Lindsay Hoyle, has written to the Court to express concern that hearing certain parts of the claim could result in a breach of the principles of parliamentary privilege set out in Article 9 of the Bill of Rights 1689.

Comment

Mr Dolan’s challenges to the Government’s measures to tackle the COVID-19 outbreak have attracted considerable media attention, particularly as they attack a key aspect of the Government’s response.

The fact that the appeal in Dolan 1 was heard this week may have an impact on how the Court of Appeal deals with the grounds of challenge. At the time the Administrative Court refused permission in July, the national lockdown had been eased, and the No. 2 Lockdown Regulations had been put in place which contained far fewer restrictions on individuals and businesses. It was against this backdrop that the Court found some of the grounds to be academic. However, with the potential of a second wave over the winter, the Government has since significantly amended the No. 2 Regulations and also introduced the new three-tier system. There is also a prospect of a further national lockdown.

The Court of Appeal’s decision is also likely to have implications on how the Government coordinates its response to the crisis in the coming months, especially if the Court of Appeal deals with the Claimants’ arguments in relation to the limits of the emergency powers under the 1984 Act.

We do not yet know whether the question of permission in Dolan 2 will be dealt with by a judge considering the papers or whether there will be an oral hearing.

If you have any questions on the public law aspects of COVID-19, please contact Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa, or Sahil Kher.

Please also visit our client COVID-19 Hub here for insight from Herbert Smith Freehills on the wider legal issues surrounding the current outbreak.

Andrew Lidbetter

Andrew Lidbetter
Partner
+44 20 7466 2066

Nusrat Zar

Nusrat Zar
Partner
+44 20 7466 2465

Jasveer Randhawa

Jasveer Randhawa
Of Counsel
+44 20 7466 2998

James Wood

James Wood
Senior Associate

Sahil Kher

Sahil Kher
Associate
+44 20 7466 6440