Is lockdown lawful?

Friday 3 July 2020

England had been in “lockdown” for more than 100 days when the High Court heard submissions from both parties in the crowdfunded judicial review case known as The Queen on the application of Dolan -v- The Secretary of State for Health and Social Care (1) The Secretary of State for Education (2) concerning a challenge to the lawfulness of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as amended) (“the Regulations”).

What is judicial review?

Judicial review is a unique set of court proceedings that enables an individual to challenge the lawfulness of a decision (or omission) of a public body. For example this would include decisions made by Government departments or local authorities.

Crucially, in a judicial review claim, the court is concerned with the procedure followed to reach a decision as opposed to the actual decision itself.

Judicial review is a two stage process that involves:

1. A Claimant seeking permission to bring a claim; and
2. If permission is granted, the claim proceeding to a substantive hearing.

What is this judicial review about?

This judicial review, which has been brought by business man Simon Dolan, seeks an Order quashing the Regulations on the basis that, amongst other matters, they are “ultra vires” i.e. in issuing the Regulations the Government acted beyond its powers.

The Regulations, issued in the wake of the coronavirus pandemic, are extraordinary and have had a wide ranging impact on the everyday life of citizens of England. The question facing the court, however, is whether or not the Regulations were lawfully imposed and whether or not they represent a disproportionate interference with fundamental human rights.

Those questions were debated during a “virtual” hearing on Thursday this week (2 July 2020); ironically the restrictions imposed by the Regulations preventing the hearing from physically taking place in a court room.  Judgment is awaited and expected early next week.

This is not the only judicial review case in which the court has recently had to consider whether or not some of the restrictions imposed by the Regulations are lawful. This Firm’s Luke Patel is instructed to act on behalf of the Claimant in The Queen on the application of Hussain -v- The Secretary of State for Health and Social Care [2020] EWHC 1392, which is considered to be the first case of its kind to be heard and in which the Claimant, on the basis that there was a sufficiently arguable case, was granted permission for a judicial review of the Regulations to the extent that they impact on the ability of individuals to exercise their right to worship.

The court noting in that case that the cumulative effect of the restrictions in the Regulations is an infringement of the right to worship – the question to be determined in the claim being, whether or not that interference can be justified.  A substantive hearing is awaited in that case.

What is unique about this case?

Judicial review cases, by their nature, often concern matters of significant public importance; for that reason they can attract public attention and support.

In the case of Mr Dolan he has set up a crowd-funding page on the platform crowdjustice.com (a website that describes itself as an “online fundraising platform specifically designed for legal action”) and has raised, to date, £201,338 to fund the legal action. Those funds have been raised by 6,533 separate pledges and those who have pledged funds are kept up to date on the webpage of the progress in the claim.

The ability to crowd-fund legal action is an interesting and developing area particularly in relation to whether or not, and the extent to which, a pledger can potentially be liable for the costs of the other side in the event of an unsuccessful outcome.

If permission to proceed with the judicial review is granted, it may be that further crowdfunding is sought. Watch this space…

If you require assistance or any further information in relation to judicial review or any Covid-19 related matter, please email or call us on 0113 227 9203, or contact any member in our Commercial Dispute Resolution team.