Unlocking the Lockdown – time for another challenge?

Businessman Simon Dolan sought to challenge the UK’s coronavirus lockdown restrictions by way of judicial review. The Court of Appeal’s rejection of his application is reported as R (on the application of Dolan and others) v Secretary of State for Health and Social Care and Another [2020] EWCA Civ 1605. Hugh O’Donoghue examines whether the decision has stood the test of time given the fast-changing nature of the pandemic.

Background

It was only a little over a year ago that China notified the World Health Organisation of a cluster of unusual pneumonia cases. By 30 January 2020 the Director General of the World Health Organisation declared a public health emergency of global concern. On 31 January 2020 the United Kingdom reported its first cases of “severe acute respiratory syndrome coronavirus 2” or ‘SARS-CoV-2’.

On 23 March 2020 the Prime Minister announced that England was being placed immediately into what became known as ‘the lockdown’. That historically unprecedented announcement purported to have force of law but did not, until the governing regulations were introduced by a statutory instrument on 26 March 2020 in the form of The Health Protection (Coronavirus, Restrictions) (England) Regulations (SI 2020/350).

Regulations

For HM Government, the great advantage of a statutory instrument is that law can be promulgated at extremely short notice. Regulations generally are saved from the taint of absolutism by two potent institutional restraints: firstly, an SI must be derived to have legal effect from an Act of Parliament and secondly, all secondary legislation is subject to judicial review by the courts.

Dolan

The above therefore formed the immediate background to the challenge in Dolan. The claimant submitted that the regulations imposed sweeping restrictions on civil liberties and were unlawful on three grounds. Firstly, he argued the Government had no power under the Public Health (Control of Disease) Act 1984; secondly, that the regulations were unlawful applying ordinary public law principles. Thirdly, he said that they violated a number of Convention rights guaranteed in domestic law under the Human Rights Act 1998.

Lewis J refused permission to apply for judicial review on 06 July 2020 and the claimant appealed his order refusing permission. The Court of Appeal granted permission to the claimant in respect of a single vires ground (i.e., the claim that the wrong primary legislation was deployed by the State to warrant the exercise of the powers); while not granting permission the Appeal Court did however consider comprehensively the merits of grounds 2 & 3 clearly as a matter of broader public interest and because the court said it had the benefit of full argument.

The overall outcome was that the court was persuaded that the claims were largely moot and beyond that proportionate, because the underlying situation as it referred to many times was fast moving and evolving, and the underlying facts would not be replicated in the future (para 38). It appears in retrospect that those observations were optimistic.

Now that we are subject once again to the strictures associated with the present resurgence, accompanied by new rules co-extensive with, if not more draconian than in the impugned legislation, it is perhaps worth examining the court’s ruling in greater focus.

Present Rules

The current regulations, The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, became law on 02 December 2020 and are to expire on 02 February 2021. Unlike previous legislation the rules were subject to parliamentary scrutiny although in a covid restrictive manner and crucially, after the legislation became operative. It imposes a framework consisting of three ‘tiers’ of restrictions with different tiers applying to different areas, in order to control the spread of the virus and in the words of the explanatory memorandum “avoid overwhelming the NHS”.  The present restrictions under Tier 4 that are now imposed on the general public are similar to first wave of restrictions, the subject matter of the Dolan litigation.

In Dolan the claimant argued a number of points of public law – traditional areas of challenge in judicial review, such as the familiar rationality grounds (no Minister properly directing him/herself could reasonably have come to the decision that was reached on the basis of the information available) and that the Minister had fettered his discretion. However, the Court reminded itself of the analysis of Lord Bingham CJ in R v Secretary of State for Health ex parte Eastside Cheese Co [1999] 3CMLR 123, at 47 that on public health issues which require the evaluation of complex scientific evidence, the national courts should be slow to interfere with a decision which a responsible decision-maker had reached after consultation with expert advisors.

No doubt in citing that important authority the Court was on a solid footing particularly had it been dealing with more routine public health considerations. But the Court would not have been addressed on The House of Commons Scientific and Technology Committee: The UK Response to Covid-19: Use of Scientific Advice First Report, published 8 January 2021 on the way the Government had received and applied scientific evidence and advice during the first period of pandemic up to Autumn 2020.  The conclusions of opacity arrived at by the Committee are clearly not in lockstep with the overall confidence the Court had in the quality of the government’s advice.

Human Rights Claims

The claimant argued that as a consequence of the regulations the position was clear, that everyone had to as a general rule under regulation 6(1) to stay in their own home. This of course also represents the status quo under current rules.

Philip Havers KC for the claimant submitted that this restriction amounted to a curfew or house arrest. The court’s response (para 92) was that there was no deprivation of liberty within the meaning of Article 5 ECHR and the criteria set out by the Strasbourg court. The Court’s rationale was based on the express exceptions to Regulation 6(1) as well as the overriding exception of having a reasonable excuse.

A Gilded Cage Is Still A Cage

What emerges from the caselaw of the ECtHR and Guzzardi v Italy [1980] 3 EHRR 333 in particular is that the circumstances of any alleged detention are fact specific – with the idea of ‘the concrete situation’ of the individual said to represent the starting point.  

What seems to emerge from Dolan on the other hand is that the mandatory general confinement of the population at large is now deemed lawful because, as the court sees it, the rule in question is subject to an overriding reasonable excuse defence.  It will be recalled that the Supreme Court also reviewed the Strasbourg case law in P (by the Official Solicitor) v Cheshire West and Chester Council, and P & Q (or MIG & MEG) (by the official Solicitor) v Surrey County Council [2014] UKSC 19.and in the course of the judgment had this to say, per Lady Hale:

“If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”

Ex P and West Cheshire was somewhat surprisingly not referred to by the court in Dolan, but it could nevertheless be still argued that the ‘reasonable excuse’ defence might present as a reasonable excuse for the violation of Article 5 guarantees were it not for the fact that the term remains undefined in the legislation.

The point is surely one for a future tribunal.

Finally, arguments regarding the contravention of a number of other human rights were gently sidestepped for the most part (§§ 95 et seq) by the Court.  The Court by contrast did meet Article 11 square on (the right to peaceful assembly and association).  The Court acknowledged that on the face of it, the Regulations, as originally enacted in March 2020, might be thought to have taken away this right altogether.   But again, the court went on to refer to the defence of reasonable excuse as saving the provision.

Article 11 ECHR is not an absolute right. The provision famously allows for derogation in the interests of public health. The court was content to remark without canvassing the evidence at paragraph 105 that “there are also powerful arguments that the restrictions, time limited and subject to review, as they were, were in any event proportionate”. It would be interesting to see their views in the event of a more lethal pandemic.

Need For Evidence

Viewed juridically, restrictions versus risk becomes a balancing exercise, and the role of judicial review is for the courts to test that balance. The Court in Dolan, it has been suggested, did not really engage with that exercise.

Medical expertise and related scientific research form the bedrock data the public and the courts need to judge the level of constraints on liberty. According to the Commons Committee under Chairman Greg Clarke MP, the scientific accountability from SAGE has been heavily criticised. Equally, no evidence was produced to the court relating to dissenting medical opinion. The court might have been assisted by having the evidence before it as to whether that wider expertise was considered by the Minister.

Dolan seems therefore incomplete at least in the area of evidence. The argument was no doubt made but as pointed out by the Lord Chief Justice, Lord Burnett, the submissions unfortunately failed for “want of evidential foundation”.

The Administrative Court has in the recent past, deferred in the main to executive choice of policy, provided courts are satisfied that there is a proper consideration of all relevant factors. The ultimate executive decision is not to be second guessed by a court.

Where the Secretary of State fails to take account of relevant considerations there is a strong ground for review. The answer might therefore lie in placing tangible evidence before the court that the Secretary of State has firstly not considered the wider picture and that secondly, questioning whether his preference for a general lockdown was rational in the light of contravening evidence.

In the light of the above information now placed before Parliament by its Science and Technology Committee it is clear that the confidence in the ‘led by science’ assurances has been somewhat over blown. For example, in the following extract from the Committee’s key findings at page 4:

“Nevertheless, we have concerns that the lessons from this experience have not been consistently applied and call for the Government to publish the advice it has received on indirect effects of Covid-19 (including impacts on mental health and social wellbeing, education and the economy) and work to improve transparency around the operation of the Joint Biosecurity Centre”.

Key finding 5 (found at page 5) was particularly informative –

“Measures taken to contain the pandemic had wider and indirect effects, such as on people’s livelihoods, educational progress and mental and emotional wellbeing. The assessment of these wider impacts was—and remains—much less transparent than the epidemiological analysis; the people conducting the analysis and giving advice are less visible than epidemiological modelling advisers; and its role in decision making opaque.”

This creates a tension with the Lord Chief Justice’s observations at §83 of the judgment: “The Secretary of State was well aware of all these matters and, on the evidence before the judge, he was entitled to reach the conclusion that the Secretary of State did have regard to them”

Conclusions

What then for possible further challenges?

The reasoning in Dolan at first instance is largely that because the Regulations in question had time-expired by the time of the hearing consideration of their legality was theoretical if not pointless. The repetitive pattern of the spread of the disease with the sequential legislation now point the other way. A second bite at the cherry seems inevitable.

It is difficult is it not to imagine a more extreme measure than lockdown. Deferring to political judgment on a basis that the Government is accountable to Parliament may not be sustainable as a default position. When as now the traditional common law liberty of the subject is in jeopardy it might be thought that the Government ought to be primarily accountable to the court as guardians of the Common Law.

Hugh O’Donoghue specialises in judicial review and has an extensive international practice in commercial and chancery law.