Court of Appeal refuses to review coronavirus restrictions

In the judgment in the case of R(Dolan) v Secretary of State for Health and Social Care issued late last year, the court rejected a judicial review of the coronavirus regulations for England.

Faced with the unprecedented challenge of the coronavirus pandemic, the UK government has imposed unprecedented restrictions in England on business activity and individual movement since March 2020. The devolved administrations in Wales, Scotland and Northern Ireland have imposed similar restrictions.

Over the last year, we have seen a lively political debate in the media and in parliament over whether the 'right' restrictions have been put in place. The Dolan case represented an attempt to move that debate into the legal arena, raising a broad range of public law and human rights arguments. It did not get off the ground.

Margin of judgement

The court made clear that it had no appetite to engage in a full review of the restrictions, rejecting nearly all of the claimants' points as completely unarguable. Arguments about the irrationality of a decision always represent a high hurdle for a claimant to overcome in a judicial review, but it was even higher here. The court emphasised that it would be slow to interfere with a decision informed by expert advice.

In a similar vein, the court dismissed the alleged breach of the right to private and family life, which is enshrined in Article 8 of the European Convention on Human Rights (ECHR), given the "margin of judgement" that needed to be afforded to ministers making public health decisions informed by expert advice. For the purposes of the ECHR argument, the fact that some might disagree with some of the expert advice was considered by the court to be "neither here nor there".

Reviewing legislation

The claimant faced difficulty in arguing that the regulations themselves were an unjustified infringement of the Article 11 ECHR right to freedom of association. This is because legislation restricting a right can only be considered unjustified, if it is "incapable of being operated in a proportionate way in all or nearly all cases". The court concluded that the point was unarguable, given the wide-ranging exceptions in the regulations that allow individuals to overcome the restriction where they have "reasonable excuse".

Further, the court noted that the argument failed because section 3 of the UK's Human Rights Act 1998 required the regulations to be read and applied consistently with ECHR rights, in any event.

When considering the primary legislation which authorised the making of the regulations, the court emphasised that clear and unambiguous wording was needed in a statute to confer a power on a minister to make regulations overriding fundamental rights. However, the court was satisfied that ministers' powers in the Public Health (Control of Disease) Act 1984 to make the regulations were clear and unambiguous.

Procedural safeguards 

The judgment includes some strong criticism of the claimant on a number of procedural points in the conduct of the judicial review, which will be of broader interest for future litigation.

The court suggested that this was a case where the obligation to lodge a judicial review claim "promptly" was not met by lodging the claim two months after the regulations were made. It also criticised the practice of 'rolling' judicial reviews, by which grounds of challenge are repeatedly amended to bring subsequent new decisions or regulations into the claim before the case is heard.

If this were to set a trend for the Administrative Court division of the High Court to be stricter with judicial review claimants, there is a risk that cases may be delayed by public bodies repeatedly issuing new decisions before a hearing takes place, requiring a new claim to be commenced each time. So some flexibility will still be needed, and where the courts do take a strict approach, they may need to uphold their end of the bargain by scheduling hearings without undue delay, while the issues at stake are still live.