COVID-19: regulations implementing lockdown are not ultra vires or in breach of ECHR (High Court)

Practical Law UK Legal Update Case Report w-026-4573 (Approx. 9 pages)

COVID-19: regulations implementing lockdown are not ultra vires or in breach of ECHR (High Court)

by Practical Law Public Sector

Background

Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and school closures

On 16 March 2020 and in response to the COVID-19 pandemic, the government advised members of the public to avoid non-essential contact with others, stop all unnecessary travel, and to work from home wherever possible. On 18 March 2020, the government announced that schools would stop providing education to children on school premises, except for vulnerable children and the children of those classified as key workers, see Legal update, Schools, colleges and early years settings to close from 23 March 2020.

On 26 March 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) were made and came into force at 1.00 pm on the same day, see Legal update, COVID-19: Regulations restricting commercial activity and individuals' rights of movement and assembly in England. The Regulations, which are made under sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984 (PHCDA 1984), impose restrictions on commercial activity and on individuals' rights of movement and assembly which were previously announced by the government. The aim of the restrictions is to limit the spread of COVID-19.

The Regulations:

Required the Secretary of State (SoS) to review the need for the restrictions and requirements imposed in the Regulations every 21 days (this was subsequently amended to every 28 days) (regulation 3). Regulation 3 also requires the SoS to terminate any restriction or requirement as soon as they consider it is no longer necessary to prevent, protect against, control or provide a public health response to the spread of infection.
Required certain businesses to close during the emergency period. Business such as restaurants, cafes and public houses were prohibited from selling food and drink for consumption on the premises (they were permitted to sell takeaway food and drink). Other premises, businesses and shops were required to close or to cease carrying on business, save for specified exceptions such as food retailers, pharmacies, newsagents, banks, petrol stations and others (regulations 4 and 5). These regulations were amended, and, from the 15 June 2020, shops were permitted to open and sell goods.
Required places of worship to close for the emergency period, except for certain limited, specified purposes such as funerals or a broadcast of an act of worship (regulation 5(5)). From 13 June 2020, places of worship could be opened for private prayer, but not for acts of communal worship.
Imposed restrictions on movement and prohibited people from leaving their homes without reasonable excuse (regulation 6). From 1 June 2020, regulation 6 was replaced by a prohibition on a person staying overnight at any place other than where they lived without reasonable excuse.
Prohibited gatherings in a public place of more than two people, unless those people came from the same household or for specified purposes such as work (regulation 7). Regulation 7 was subsequently amended and, from 1 June 2020, gatherings of more than six people in a public place, or more than two people indoors, were prohibited unless people were members of the same household. Schools were specifically exempt from this regulation and regulation 7 did not prohibit schools from providing education to children on premises. From 13 June 2020, a new concept of a "linked household" was introduced by a new regulation 7A. That permitted a household of a single adult to "link" with a second household. Members of the two linked households could gather together at outdoor or indoor places.
Set out provisions for enforcing the Regulations, including power for specified persons to direct that persons return to the place where they were living (regulation 8). Contraventions of regulations 4, 5, 7 or 8 without reasonable excuse were criminal offences punishable by a fine or a fixed penalty notice.

For further information about the Regulations and subsequent amendments to them, see the following Legal updates:

The Regulations have since been revoked by the Health Protection (Coronavirus, Restrictions) (No 2) (England) Regulations 2020 (SI 2020/684) which were made on 3 July 2020 and permit more businesses and venues to reopen from 4 July 2020, provided they comply with the government's COVID-19 secure guidelines, see Legal update, COVID-19: Regulations enabling more venues to reopen in England from 4 July made.

R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin)

In May 2020, the High Court in R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin) rejected a challenge to the Regulations, in which an applicant sought interim relief in the form of an order prohibiting enforcement of regulations 5, 6 and 7 of the Regulations so far as they prohibited the applicant from attending the mosque for Friday prayers. However, that applicant has been granted permission to apply for judicial review to challenge the effect of the Regulations on the ability to conduct communal or Friday prayers (see Legal update, Interim relief challenging Health Protection (Coronavirus Restrictions) (England) Regulations 2020 refused but permission to apply for judicial review granted (High Court)).

Human Rights Act 1998 and ECHR

The Human Rights Act 1998 (HRA 1998) gives further effect to rights under the European Convention on Human Rights (ECHR), which are reproduced in Schedule 1 to the HRA 1998. Section 6(1) of the HRA 1998 makes it unlawful for a public authority to act in a way that is incompatible with the ECHR.

For further information on the HRA 1998 and the rights under the ECHR, see Practice notes, Human Rights Act 1998: overview and Human rights law: an introductory guide for government and public bodies.

Facts

The three claimants were, respectively, the owner of a number of businesses employing around 600 people (D), an employee at one of D's companies whose son was a ten-year-old primary school pupil (M) and a school pupil (AB). The claimants' application (which was funded by donations from almost 4,000 people who had responded to D's crowd-funding campaign) sought permission for judicial review of the approach taken by and the priorities of the government in addressing the COVID-19 pandemic. The claimants drew attention to, among other matters, the impact on the economy, and the jobs and livelihoods of people, the impact on education, the effect of the measures taken on treatment of other health conditions, and the low mortality rate of people under the age of 60 with no pre-existing underlying medical condition. In light of all those factors, the claimants questioned the appropriateness of the measures taken.

In considering whether to grant the claimants' application for permission, the court had to decide whether the:

Claim was brought too late and whether some of the grounds of challenge were now academic.
Regulations were arguably unlawful because they were ultra vires (outside the powers conferred by Parliament).
First defendant, the Secretary of State for Health and Social Care (SSHSC) acted unlawfully by:
- fettering his discretion to review the Regulations by requiring that five tests be met before reviewing the Regulations;
- failing to take relevant considerations into account in the decision-making process;
- acting irrationally in making or maintaining the Regulations; and
- failing to act proportionately when deciding not to terminate the Regulations.
Restrictions on movement contained in the original version of regulation 6, or the amended version of regulation 6, arguably involve a breach of the right to liberty guaranteed by Article 5 of the ECHR.
Restrictions imposed by regulations 6 and 7 breach the right to respect for private and family life guaranteed by Article 8 of the ECHR.
Requirement to close places of worship save for certain purposes breached Article 9 of the ECHR (freedom of thought, conscience and religion).
Restrictions on gatherings imposed by regulation 7 arguably breach the right to freedom of assembly and association guaranteed by Article 11 of the ECHR.
Regulations involved a deprivation of property or an unlawful control on the use of property contrary to Article 1 of the Second Protocol to the ECHR.
The second defendant, the Secretary of State for Education (SoSE), was requiring schools to close in a manner that breached Article 2 of the First Protocol to the ECHR (right not to be denied the right to education).

Decision

The court refused the claimants' application for permission and made the following findings.

Delay

The claim was not brought until 21 May 2020 and challenged some regulations that were no longer in force at the date of the hearing on 2 July 2020. However, the claimants did not fail to act promptly given the complexity and importance of the issues, and they were not prevented from bringing the claim by CPR 54.5 (see Practice note, Judicial review procedure: a practical guide: Timing). A consequence of the delay was that some of the regulations under challenge had been replaced or amended. That meant that the claim for judicial review of the original regulation 6 (the prohibition on a person leaving home without reasonable excuse) and regulation 7 (the prohibition on more than two people gathering in public) was academic, as those regulations had been replaced. There was no good reason to entertain those claims. Permission to challenge those regulations as originally made was, therefore, refused.

Vires

Sections 45C(1) and 45C(3)(c) of the PHCDA 1984 conferred power on the SSHSC to make regulations applicable to persons, premises and things in England as a whole. Those powers were not limited to making regulations in relation to specific individuals or groups of individuals. This ground of challenge was unsuccessful.

Fettering of discretion

The SSHSC had not unlawfully fettered his discretion by requiring that five tests had to be met before the Regulations could be reviewed and restrictions terminated under regulation 3(2) and regulation 3(3) of the Regulations. The tests were a lawful, rational method of assessing the risks posed and the ability to cope with the virus.

Failure to take account of relevant considerations

People might legitimately disagree on where the balance should be struck, but it could not be argued that the government had failed to have regard to relevant considerations.

Irrationality

There was no arguable basis for concluding that the decision to make the Regulations, or to maintain them in force, was irrational. The measures were intended to reduce the risk of transmission of a disease that was infectious and could cause death or serious ill health, and where the scientific understanding of the disease was limited. The claimants referred to the lower risks of mortality to those under 60, and to children and young people. However, that did not make it irrational to take steps to reduce opportunities for transmission from people in those groups to others. Further, the fact that not all situations where contact, and potentially transmission, might occur were subject to the restrictions did not make it irrational to adopt the measures.

Proportionality

Under section 45D of the PHCDA 1984, any regulations might not include restrictions unless they were proportionate to what was sought to be achieved. However, the decision on proportionality was ultimately for the minister. In the context in which the Regulations were made, it was unarguable that the decision to make the Regulations was in any way disproportionate to the aim of combating the threat to public health posed by the incidence and spread of COVID-19.

Right to liberty: Article 5, ECHR

It was not arguable that the version of regulation 6 that was in force on 2 July 2020 (which provided that no person might, without reasonable excuse, stay overnight at any place other than the place where they or their linked household was living), would amount to a deprivation of liberty contrary to Article 5 of the ECHR. Further, regulation 6 was limited in time and had to be reviewed regularly.

Right to respect for private and family life: Article 8, ECHR

It was unarguable that the restrictions on the ability to see family members and friends imposed by regulation 6 and regulation 7 would be justified if they amounted to an interference with the right to respect for private and family life under Article 8 of the ECHR. The Regulations sought to achieve a legitimate aim which was in accordance with the law. Any interference was limited and proportionate.

Freedom of religion: Article 9, ECHR

As at 2 July 2020, regulation 5 prohibited the use of places of worship for communal acts of worship and the claimants argued that the prohibition breached Article 9 of the ECHR. However, Regulations made on 3 July appeared to permit places of worship to hold acts of communal worship for up to 30 people with effect from 4 July 2020. If that was correct, that aspect of the claim might have become academic. The court would therefore adjourn that discrete issue and the parties would be directed to make further submissions.

Freedom of assembly and association: Article 11, ECHR

Regulation 7 in its current form restricted gatherings by permitting only six people to gather outdoors and two people indoors. Those restrictions interfered with the right to freedom of assembly and association in Article 11 of the ECHR, but they pursued a legitimate aim and were in accordance with the law. There was no realistic prospect that courts would find regulation 7 in its current form to be a disproportionate interference with rights under Article 11.

Right to property: Article 1, First Protocol

The first claimant, D, asserted that his rights under Article 1 of the First Protocol had been breached because the revenue of his businesses had declined. However, there was no evidence that the Regulations had deprived him of any possessions within the meaning of the ECHR, and existing case law suggested that possessions did not include loss of revenue.

School closures: Article 2, First Protocol

It was current government policy to encourage the return of pupils on a phased basis, however, there was no legal measure requiring the closure of schools. The government wanted every child who could attend school to do so from September 2020. In those circumstances, the claim in relation to schools and Article 2 of the First Protocol was academic, and there was no remedy that could serve any real practical purpose because government policy sought the same result as the claimants.

Comment

Lewis J noted that the issues raised by the claimants were all matters for legitimate public debate. However, the role of the court in judicial review is concerned with resolving questions of law and it is not responsible for making political, social or economic choices, nor was it responsible for determining how best to respond to the risks to public health posed by the emergence of a novel coronavirus; Parliament had entrusted those decisions and choices to ministers and other public bodies. The courts have, so far, accepted that the COVID-19 pandemic presents genuinely exceptional circumstances and that the premise of the restrictions in the Regulations is rationally connected to the objective of protecting public health (see paragraph 4 of the judgment).

That said, as this case and the decision in Hussain illustrate, the Regulations are not immune from challenge. However, as the nature of the pandemic and the measures required to protect public health are rapidly evolving, challenges to lockdown and the Regulations implementing aspects of it can quickly become academic.

Case

Dolan and others v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin) (6 July 2020) (Lewis J).

End of Document

Also Found In

Resource ID w-026-4573

Published on 13-Jul-2020

Resource Type Legal update: case report

Jurisdiction

England