Tribunal holds that regulator must take proactive steps to investigate impact of COVID-19

In JD Sports Fashion plc v Competition and Markets Authority [2020] CAT 24, the Competition Appeal Tribunal (“CAT”) quashed the Competition and Markets Authority’s (“CMA”) final report on the Phase 2 investigation into the completed acquisition by JD Sports Fashion plc (“JD Sports”) of Footasylum plc (“Footasylum”) on the basis that the CMA had not sought to inform itself sufficiently on the impact of the coronavirus pandemic on the relevant market, the merging parties and their competitors and suppliers, resulting in the CMA having insufficient evidence for its conclusions.

Key points

  • The CAT’s decision re-iterates that a regulator may be under a positive duty to take proactive steps to conduct further enquiries and ensure they have robust evidence on which to base their decisions, particularly in relation to a matter the regulator has explicitly indicated should be taken into account.
  • A regulator cannot escape its duty to make informed decisions based on reliable evidence merely by reason of the fact that it is administratively constrained or that evidence already available to it is speculative or unreliable.

Facts

JD Sports and Footasylum are both UK-based retailers of sports-fashion footwear and clothing, conducting sales through their stores and online.

In 2019, JD Sports acquired Footasylum in a £90m deal. The CMA’s Phase 1 investigation concluded that the merger had the potential to remove one of JD Sports’ closest competitors, resulting in a worse deal for customers, through higher prices, reduced product ranges or lowering in service quality.

In September 2019, the CMA announced that it would refer the acquisition for a Phase 2 investigation unless suitable undertakings in lieu (“UILs”) were offered. JD Sports informed the CMA of its refusal to offer the UILs demanded.

In May 2020, the CMA published its final report, concluding that the merger would result in a substantial lessening of competition (“SLC”) in the retail supply of sportswear and footwear apparel in the UK. The CMA decided that only a full divestiture of JD Sports and Footasylum would avoid a SLC.

In reaching its decision, the CMA acknowledged that the coronavirus outbreak was clearly impacting the sports-fashionwear and footwear markets, but did not see evidence to suggest that either of the parties was more negatively impacted by COVID-19 relative to each other or to other market actors. It also did not consider that COVID-19 would reduce materially the extent to which Sports Direct and Footasylum are close competitors, or decrease the probability that the merger would result in an SLC.

However, taking into account the real economic pressures brought about by COVID-19, the CMA tempered its remedies process by not including overly prescriptive conditions for divestiture and by allowing for an extension of the divestiture period beyond the usual six months. In June 2020, JD Sports made an application under section 120 of the Enterprise Act 2002 for a review of the CMA’s decision on three grounds, alleging that:

  • Ground 1: the CMA erred in law and/or acted irrationality in the manner in which it conducted its assessment of the aggregate constraints posed by suppliers and retail rivals on the combined JD Sports-Footasylum group and of whether the merger was likely to result in a SLC.
  • Ground 2: the CMA erred in law and/or acted irrationally in excluding COVID-19 from the counterfactual of Footasylum’s competitive constraints, in particular by failing to seek more information from the principal suppliers and Footasylum’s primary lender.
  • Ground 3: the CMA failed, inter alia, to provide adequate reasons and made irrational findings in concluding that the ability and incentives of suppliers (in particular Nike and Adidas) to increase their direct-to-consumer (“DTC”) operations were not so significant as to disadvantage or sufficiently discipline the merged entity.

Section 120(4) states that in determining such an application, the CAT shall apply the same principles as would be applied by a court on an application for judicial review.

Judgment

On the first ground, the CAT dismissed JD Sport’s argument that the CMA erred in the manner in which it conducted its assessment of aggregate constraints and the likelihood of a SLC. The CAT noted that the CMA had very substantial evidence on which to base a reasonable decision relating to the aggregate effects of the competitive constraints and the question of SLC, and provided substantial reasons for its assessment.

The CAT reiterated in considering this ground that where there is a rationality challenge against a merger decision of the CMA, the hurdle which the applicant has to overcome is a high one and that the CAT must be wary of a challenge which is “in reality an attempt to pursue a challenge to the merits of the Decision under the guise of a judicial review.”

On the second ground, the CAT ruled that the CMA acted irrationally in that it came to conclusions as to the likely effects of COVID-19 that were of material importance to its overall decision, without having the necessary evidence from which it could properly draw those conclusions.

Although the CMA was acting within its wide margin of appreciation in finding that the evidence it had received from the applicants and third parties was insufficiently robust to form a view on the possible or likely effects of COVID-19, the CMA’s decision not to conduct further enquiries with suppliers or Footasylum’s primary lender to see if sufficiently reliable evidence had become available prior to the publication of the final report was found to be irrational. The CMA’s decision not to conduct further enquiries was rooted in administrative constraints and the perceived futility of searching for reliable and specific evidence. However the CAT considered that it had “closed its mind to the possibility that robust information on possible impacts was available”.

The decision was also irrational judged against the CMA’s own COVID-19 guidance, which required the impacts of the COVID-19 outbreak to be factored into the substantive assessment of a merger where appropriate. The guidance mirrored the general obligation in relation to conduct of CMA investigations to ensure that there is a sufficient basis for decisions in light of the totality of the evidence available, including evidence of some probative value on the basis of which the CMA could reasonably reach the conclusion it did.

The CAT concluded that the CMA, faced with uncertainty about the impact of the pandemic, failed to make reasonable inquiries, as they were required to do. Although the CMA has a wide margin of appreciation concerning its assessment of the predictive value of the information it received, that did not absolve the CMA from ensuring that it had sufficient information available before it made predictive judgments. JD Sports’ challenge in this regard did not therefore concern the quality or correctness of the CMA’s judgement in its assessment of the relevant information. It was that the CMA had not sought to inform itself sufficiently in order to exercise its judgement.

On the last ground, the CAT reached a similar conclusion. It found that the CMA had failed to investigate fully whether, and to what extent, COVID-19 would strengthen the suppliers’ DTC offer as a result of consumers shifting towards online shopping. As with the second ground, the CMA did not have the necessary evidence from which it could properly draw such a conclusion.

It is worth noting that the CMA has applied for permission to appeal the ruling.

Comment

In the context of uncertainty surrounding the longer term impact of COVID-19, it is perhaps understandable that the CMA took the view that the evidence available to it was too generalised and speculative to shed light on its regulatory assessment.

However, this decision makes clear that public bodies must have sufficient evidence on which to base their decisions. This arises from the well-established principle of administrative law that a decision maker has to ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly (known as the Tameside duty). In circumstances where sufficient information has not been provided by third parties, particularly in relation to a matter the regulator has explicitly indicated should be taken into account, the public body may be required to take proactive steps to conduct further enquiries in order to reach a rational decision. Falling short of this obligation to ensure that their decisions are properly based on evidence provides scope to challenge the findings of a public authority decision maker.

However, as with other irrationality heads of challenge, the court will not interfere with a regulatory decision lightly and will not intervene simply because it considers that further enquiries would have been sensible or desirable. A judicial review on this ground will generally only be successful if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. This case must therefore be viewed in its particular context of attempting to assess the impacts of COVID-19.

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

Challenge to lockdown regulations heard by the Court of Appeal – Judgment

The Court of Appeal today handed down its judgment in respect of the proceedings brought by Simon Dolan and others (“the Appellants”) seeking to challenge the lockdown measures introduced in England in March 2020 via the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) following the outbreak of COVID-19 (see our earlier post regarding this challenge here, and the judgment here).

Although as the Court said the proceedings were now academic, it considered that it was in the public interest to have the issues determined rather than left for potential argument in defence to criminal proceedings, and bearing in mind that the Government was continuing to use the powers at issue.

Accordingly, the Court granted the Appellants permission to bring their claim for judicial review but only in respect of their argument that the Government had no power to make the lockdown regulations under the legislation on which they were relying (the Public Health (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008). However, the Court held that this legislation did indeed give the Government the ability to make a public health response such as the lockdown in the context of a widespread epidemic.

The Court refused the Appellants’ permission to appeal against the Administrative Court’s decision on their other grounds, which included: that the Secretary of State fettered his discretion and failed to take into account relevant considerations when considering easing the lockdown; and that the Regulations were unlawful because they breached human rights and were contrary to section 6(1) of the Human Rights Act 1998. In considering that these grounds were not properly arguable, the Court emphasised the wide degree of latitude that the Government must have for decision-making in respect of public health.

The Court also gave a general caution against treating judicial reviews as evolving or “rolling” proceedings, and parties filing “excessively long” pleadings. It also criticised the Appellants for taking two months to start their claim, rather than very promptly following the making of the Regulations in March 2020.

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
Anna Eliasson
Anna Eliasson
Senior Associate
+44 20 7466 2620

Challenge to lockdown regulations heard by the Court of Appeal

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

Prime Minister commits to a future independent inquiry into Government’s handling of the COVID-19 crisis

Following demands from the opposition and various campaigning groups, the Prime Minister has now committed to an independent inquiry into the handling of the coronavirus pandemic. In previous weeks, the Government had been reluctant to publicly commit to an inquiry, but this pledge in the House of Commons was the first clear statement on the issue. The Prime Minister did not commit to any specific timeline for an inquiry, but noted that “now in the middle of combatting…a pandemic” was not the right time for an investigation. The structure of the inquiry is also unclear at this stage, although the Prime Minister has been urged to confirm that the inquiry would be under the Inquiries Act 2005. Downing Street has suggested that the remit would be set out “in due course”.

The issues which any inquiry will examine – which will be framed by the inquiry’s formal “terms of reference” – will depend in large part on the developing political landscape, and on how matters develop over the coming months. Some of the possible issues that we see an inquiry covering include issues around the supply of PPE, supply chain issues, the impact of the crisis on BAME individuals, and the Government’s actions in light of the scientific advice from groups such as the Scientific Advisory Group for Emergencies (“SAGE”). Some discrete aspects such as possible issues with the reporting of coronavirus deaths are already being reviewed by the Government internally, but that would not stop a future inquiry from looking at these issues.

From the perspective of commercial organisations, the inquiry could cover a very wide range of sectors and industries. For instance, pharmaceutical companies may be called on to give evidence in relation to the development of a vaccine and treatments. If the inquiry looks at the economic aspects of the crisis, large banks and financial organisations may be approached for evidence. The inquiry may also look at the role of independent advisors and organisations who are members of SAGE.

In a recent episode of our public law podcast, we discussed the possible establishment of a public inquiry into the handling of the coronavirus pandemic. The episode looked at some of the key risks to organisations, and touched on some practical learnings from HSF’s involvement in other high-profile inquiries such as the Leveson Inquiry and the Independent Inquiry into Child Sexual Abuse.

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
+44 20 7466 2306
Sahil Kher
Sahil Kher
Associate
+44 20 7466 6448

Public Law Horizon-Scanning Podcast Series

We are pleased to share with you this three part horizon-scanning podcast series from the public law team.

In this series, Nusrat Zar and Shameem Ahmad are joined by James McBride from Hanbury Strategy, a strategic advisory firm that provides political insight and analysis. Together they will to look to the horizon and share their thoughts and analysis on the political and legal landscape after COVID-19 and Brexit as well as returning to the post-general election agenda.

Listen to the episodes using the links below and don’t forget to subscribe to the channel to receive updates on future podcasts.

We will continue to develop insights to keep you abreast of legal issues arising from COVID-19 that are affecting your business now and those you may face next. You can find further resources on our Catalyst Hub.

We welcome feedback so please do contact us (using the details below) if you’d like to discuss any of the topics in this podcast series or to suggest topics for future episodes.

Horizon-scanning: Post-COVID-19

 

Horizon-scanning: Post-Brexit

 

Horizon-scanning: Picking up the post-general election agenda

 

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
Shameem Ahmad
Shameem Ahmad
Associate
+44 20 7466 2621

Administrative Court refuses permission to legal challenge to the UK Government’s lockdown regulations

Dolan & Ors v Secretary of State for Health And Social Care & Anor [2020] EWHC 1786 (Admin)

A claim brought by the entrepreneur Simon Dolan and others (“the Claimants”) seeking to challenge the lockdown measures introduced by the English Government following the COVID-19 outbreak has been refused permission in the Administrative Court. The claim attracted considerable attention as it was crowdfunded and challenged a key aspect of the Government’s response.

The Claimants challenged the provisions of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 as amended (the “Lockdown Regulations”) on the basis that they were unlawful on various grounds. Following a hearing on 2 July 2020, Mr Justice Lewis refused permission to the Claimants.

Background

Following the outbreak of the virus and the consequent risk to public health and safety, the Secretary of State for Health and Social Care, Matt Hancock (“the SoS”), made the Lockdown Regulations on 26 March 2020, which introduced a number of restrictions and requirements on those living and working in England. This included the requirement for certain businesses to close during the emergency period, and also imposed strict restrictions on movement and gatherings (referred to colloquially as the ‘lockdown’).

The Lockdown Regulations have been amended a number of times since they were first made. These Regulations were also applicable only in England as the governments of Wales, Scotland and Northern Ireland made separate regulations using their devolved powers. Our previous blogposts on the Lockdown Regulations are available here and here.

The challenge

Following a major crowdfunding campaign that saw them raise over £200,000, the Claimants sought permission to challenge the Lockdown Regulations. The Claimants argued that the Lockdown Regulations were unlawful on a number of public law grounds, including that they were ultra vires and irrational. The Claimants also suggested that specific provisions of the Lockdown Regulations breached the European Convention on Human Rights (“ECHR”). These grounds are summarised in paragraph 24 of the judgment.

It is worth noting that by the time the challenge was heard on 2 July 2020, a number of the restrictions set out in the original Lockdown Regulations had been replaced and were no longer in force. In fact, on 3 July, the Lockdown Regulations were superseded in most parts of England by The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 along with a separate set of regulations applicable to Leicester.

Issues and judgment

The Court considered nine separate issues as part of the application for permission.

  • The first issue was whether the claim had been brought ‘promptly’ as required under the Civil Procedure Rules and whether the claim was academic as a result of the relevant provisions of the Lockdown Regulations no longer being in force. On the question of promptness, Mr Justice Lewis concluded that there was no failure to act promptly given the “complexity and importance of the issues” and that the Claimants were not prevented from bringing the claim on that basis. However, on the second question, the Court found that the claim for judicial review of the original regulation 6 (the prohibition on a person leaving home without reasonable excuse) and the original regulation 7 (the prohibition on more than two people gathering in public) was academic, and that there would be no practical purpose served through a claim for judicial review of those specific regulations. The Court observed that:

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.

This observation may be of relevance to any future challenges to the Government’s response to the pandemic.

  • The second issue before the Court was one of vires – specifically, whether the SoS had the legal power to make regulations applying to all persons in England under the powers conferred by the Public Health (Control of Diseases) Act 1984 ( “the 1984 Act”). The Court concluded that section 45C of the 1984 Act did in fact confer power on the SoS to make regulations that applied to persons, premises and things in England as a whole in appropriate circumstances (and on the basis that the restrictions would be kept under review in line with the provisions of the 1984 Act). Consequently, permission on that ground was also refused.
  • The third issue focussed on the Claimants’ argument that the making of the Regulations was unlawful for four reasons of domestic public law. First, that the SoS had fettered his discretion by requiring five tests to be met before the Lockdown Regulations would be replaced. Secondly, it was argued that the SoS failed to have regard to relevant issues when making the Lockdown Regulations. Thirdly, the Claimants submitted that the Regulations were irrational, and finally, that they were not proportionate under the 1984 Act. The Court analysed these grounds in some detail in paragraphs 47-63 of the judgment, and concluded that there was no basis on which these four sub-grounds could be reasonably argued. Permission was accordingly refused on this issue.
  • The fourth, fifth, sixth, seventh, and eighth issues all revolved around the Claimants’ arguments that the Lockdown Regulations imposed various requirements and restrictions that were contrary to a number of Articles of the ECHR. The relevant articles included the right to liberty and security (Article 5), the right to private and family life (Article 8), freedom of religion (Article 9), freedom of peaceful assembly and association (Article 11), and the right to property (Article 1 of the First Protocol). The Court considered the scope of the rights under these Articles, and concluded that it was not arguable that these rights and freedoms were affected. Even where specific rights were affected – for instance, in the case of the freedom of assembly and association – the Court concluded that the restrictions were justified and proportionate. The Court went as far as saying that “in all reality in those circumstances, there is no realistic prospect of a court deciding in these, possibly unique, circumstances that the regulation was a disproportionate interference with the rights guaranteed by Article 11 of the Convention.

The only exception was the sixth issue on the freedom of religion. Specifically, the Claimants argued that the prohibition on the use of places of worship for communal acts of worship involved a breach of Article 9 of the ECHR. Mr Justice Lewis was minded to let that specific issue proceed to a full hearing in light of a previous decision on a similar issue (R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin)). However, following the making of new regulations on 3 July 2020 permitting acts of communal worship for up to 30 people, this issue was considered to be academic. Nevertheless, as the new regulations were made after the hearing on 2 July, the parties have been given the opportunity to make further submissions on this point.

  • The final issue was directed at the Secretary of State for Education (the second Defendant), and focussed on the Government’s 18 March 2020 announcement that education should not be provided at school premises in England save for the children of key workers and vulnerable children. The Claimants suggested that this announcement was in effect a direction for schools to close, and therefore amounted to a breach of Article 2 of Protocol 1 to the ECHR which protects the right to education. However, the Court concluded that there was no legally enforceable measure made by either SoS preventing attendance at school. Further, the Court noted that the current policy of the Government was to encourage the return of pupils on a phased basis. Consequently, any claim in relation to schools and Article 2 Protocol 1 was academic. Permission was therefore refused on this ground as well.

Summary

Through this detailed judgment refusing permission, the Administrative Court has firmly rejected the Claimants’ submissions that the Government (acting through the two Secretaries of State) acted unlawfully in making the Lockdown Regulations. The Claimants are considering appealing the decision. It is unclear whether they intend to make further submissions to the Administrative Court on the freedom of religion issue.

It is worth noting that while the judgment relates to the most prominent aspect of the Government’s response i.e. the decision to introduce the lockdown, other decisions taken by the Government either previously or going forward can still be challenged. However, in circumstances where the regulations and guidance are changing on a day-to-day basis, Mr Justice Lewis’ comments on ‘academic’ claims may turn out to be relevant to any current and future challenges.

Separately, this claim was notable for being the biggest of the crowdfunded cases threatened or brought against the English Government so far in the COVID-19 context. Crowdfunding of judicial reviews provides an opportunity for political participation from the public at large, but we can see it throwing up numerous issues around how the money raised is being used, and whether funders are fully aware of the legal merits of challenges. The costs implications where a crowdfunded claim for judicial review fails are also as yet unknown, and Mr Justice Lewis made no comments on costs in this judgment.

If you have any questions on the public law aspects of COVID-19, please contact Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa or Sahil Kher. You can listen to our podcast on various public law issues surrounding COVID-19 here, including our latest episode on regulators and their response to the pandemic.

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
Sahil Kher
Sahil Kher
Associate
+44 20 7466 6440

 

COVID-19: Pressure Points: Regulatory tolerance in an age of COVID-19 – Can regulators revise concessions they have offered?

In the latest episode of our public law podcast, Andrew Lidbetter, Nusrat Zar and Anna Eliasson discuss the scope for regulators to go back on concessions they have suggested to those they regulate.

In doing so, they look at the nature of these statements; how they might amount to obligations; when they can be frustrated; and three key things businesses can do to preserve their positions.

 

Listen to the latest episode on SoundCloudApple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

We will continue to develop insights to keep you abreast of legal issues arising from COVID-19 that are affecting your business now and those you may face next. You can find further resources on our COVID-19 Hub.

We welcome feedback so please do contact us (using the details below) if you’d like to discuss any of the topics in this podcast or to suggest topics for future episodes.

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
Anna Eliasson
Anna Eliasson
Senior Associate
+44 20 7466 2620

Emerging from the lockdown – significant changes introduced to the key regulations

As the UK moves to the next phase of its COVID-19 response, the Government has increasingly started looking at ways to lift the lockdown and restart the economy.

Our previous blogs (see here and here), and our podcast (see here) give a broad overview of the Government’s immediate legislative response to the crisis. While the Coronavirus Act 2020 was the key piece of primary legislation passed by the Government, most key measures to control the spread of the virus were introduced through statutory instruments (“SIs“) such as regulations. There have been over 90 coronavirus-related SIs laid before the UK Parliament, and a large number of existing SIs have also been amended to deal with the crisis.

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”) are the main set of regulations through which the lockdown has been enforced in England. The Regulations came into force on 26 March 2020, and originally introduced restrictions on the movement of individuals and households, along with restrictions on business operations (including mandating the closure of premises). The Regulations were then amended through two sets of amending regulations which were made on 21 April 2020 and 12 May 2020 respectively. Both sets of amending regulations varied the lockdown restrictions to a certain extent.

New amending regulations

On Sunday 31 May 2020, the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 were introduced to amend the Regulations for a third time. These amendments are the most significant changes to the Regulations since they were originally introduced, and make major changes to the lockdown rules. These changes came into force at 11:30AM on 1 June 2020, and include:

  • Changes to restrictions on movement

The amending regulations now remove the general prohibitions/restrictions on leaving one’s home, and replace it with a narrow prohibition on people staying overnightwithout reasonable excuse” at any place other than the place where they are living (amended Regulation 6). In practice, therefore, people can now be outside their home for any reason (subject to the rules on gatherings below). The only situation in which a “reasonable excuse” will need to be shown is if anyone is staying overnight at a place that is not their residence.

What constitutes a “reasonable excuse” is listed in Regulation 6(2). This includes cases where a person needs to stay elsewhere to attend the funeral of a close family member or a member of their household, where a person needs to stay elsewhere while moving house, or where it is reasonably necessary for work purposes. On the face of it, the list does not appear to be an exhaustive one, and in theory, it is possible for individuals to argue that other circumstances constitute a “reasonable excuse”.

  • Changes to restrictions on gatherings

The wide ranging prohibitions on gathering in public have also been replaced by more specific rules for ‘indoor’ and ‘outdoor’ spaces (whether public or private). It is now permitted to gather in outdoor places – both public and private – in groups of six or fewer people, but all indoor gatherings of any size are prohibited (apart from with members of the same household). There are certain exceptions in Regulation 7(2) to these general rules, which, for instance, permit larger gatherings for work purposes where reasonably necessary and for specific groups such as elite athletes meeting for training or competition. Another key exception is where the gatherings are at educational facilities and for registered early years childcare – this has now given a legal basis for the Government to reopen premises as part of its proposals to restart schools.

  • Business closures

Specific businesses such as outdoor markets and car showrooms have also been allowed to reopen through these amending regulations.

  • Enforcement

A major consequence of the changes to the restrictions on movement are that the police no longer have the power to question why people are outside of the place they are living in (and consequently, do not have the power to direct people home). However, it is important to note that failure to comply with the Regulations as amended still remains a criminal offence. The National Police Chiefs’ Council has issued guidance on when the police can use its powers of direction, and when it can force removal and use force.

  • Review

The provision requiring the Secretary of State to review the need for the restrictions and requirements in the Regulations at least once every 21 days has been changed to once every 28 days (Regulation 3(2)). The next review is therefore expected to be carried out on or around 25 June 2020.

Observations

The amending regulations introduce important changes to the ‘lockdown’ rules and significantly alter what people are permitted to do in England. It is worth reiterating that Scotland, Wales and Northern Ireland are operating under different restrictions at the moment set out in regulations passed by the devolved administrations.

While the easing of restrictions has come as welcome relief to businesses and individuals, there has been some concern that the amending regulations were introduced using emergency procedure for introducing statutory instruments – effectively, they were made as law and came into force before being presented to Parliament for scrutiny (see here for our previous post on how statutory instruments are introduced). This was the same process followed in March when the Regulations were first introduced, and on 21 April and 12 May, when the first two sets of amending regulations were made. A pre-action letter has been sent by a not-for-profit membership organisation to the Secretary of State for Health and Social Care on 2 June. This letter suggests, among other things, that the Secretary of State’s use of the emergency procedure is unlawful, and seeks a response to the letter within seven days, failing which, judicial review proceedings may be commenced.

The second point of note is that the Regulations (as amended) still do not entirely cover the same ground as the key Public Health England (PHE) guidance. For instance, the public messaging from the Government about the changes has been that even outdoor gatherings of up to six persons must follow “social distancing guidelines” i.e. staying two metres apart from anyone outside of your own household. However, the Regulations do not include this requirement. The police guidance appears to take note of the difference between non-binding guidance and legislation, but there is a risk of some confusion as to what it is in the PHE guidance on the one hand and the Regulations on the other. There is also the practical issue of how the police will be able to regulate the size of gatherings in private places (both outdoor and indoor). It is notable in this context that a number of convictions brought under different pieces of COVID-19 legislation in the early weeks of lockdown have since been found to be wrongful.

Finally, it will also be interesting to see how the “reasonable excuse” clause in Regulation 6(2) is interpreted in the event of a dispute. As we note above, the list in the clause does not appear to be an exhaustive one. This is in stark contrast to Regulation 7(2), which sets out only specific limited exceptions to the rules on gatherings.

If you have any questions on the Regulations or any other concerns around the impact of the Covid-19 legislation on your business, please contact Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa or Sahil Kher.

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
Sahil Kher
Sahil Kher
Associate
+44 20 7466 6440

COVID-19: Pressure Points: Learning lessons from the crisis – a COVID-19 inquiry?

In the latest episode of our public law podcast, Andrew Lidbetter, Nusrat Zar and James Wood discuss the possible establishment of a public inquiry into the handling of the coronavirus pandemic.

In doing so, they look at the likely scope of any inquiry and consider the range of individuals and organisations – including commercial entities – who might be involved. In the podcast, Andrew, Nusrat and James also discuss the key implications and risks for those who might be involved, and consider some practical steps which are relevant at this early stage.

 

Listen to the latest episode on SoundCloud, Apple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

We will continue to develop insights to keep you abreast of legal issues arising from COVID-19 that are affecting your business now and those you may face next. You can find further resources on our COVID-19 Hub.

We welcome feedback so please do contact us (using the details below) if you’d like to discuss any of the topics in this podcast or to suggest topics for future episodes.

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
Anna Eliasson
Anna Eliasson
Senior Associate
+44 20 7466 2620
James Wood
James Wood
Senior Associate
+44 20 7466 2306

COVID-19: Pressure Points: The UK’s legislative response to the crisis

In this special episode of our Public Law Podcast, Andrew Lidbetter and Nusrat Zar discuss the UK’s legislative response to the COVID-19 crisis.

 

Listen to the latest episode on SoundCloud, Apple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

You can read more about the topics discussed in this episode in the following blog posts:

We will continue to develop insights to keep you abreast of legal issues arising from COVID-19 that are impacting your business now and those you may face next. You can find further resources on our COVID-19 Hub.

We welcome feedback and if you would like us contact us in connection with the topics discussed in this podcast or to suggest particular topics for future episodes please use the contact details below to get in touch.

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
Sahil Kher
Sahil Kher
Associate
+44 20 7466 6440