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by Joshua Rozenberg
26th May 2020

Whether or not the coronavirus lockdown regulations are lawful is the question the High Court is now being asked to decide. Proceedings against the government were issued on 21 May by Simon Dolan, an entrepreneur who owns a number of UK businesses employing around 600 people. The government has been ordered to file its response by 12 June.

Dolan is worth £200m, according to the recent Sunday Times Rich List. From his crowdfunding page, we see that nearly 4,500 well-wishers have now pledged more than £140,000 to support his challenge.

Although Dolan is a British citizen, he lives in Monaco. To head off a possible government objection that he does not have the necessary standing to bring a human rights challenge, he is seeking the court’s permission to add a UK resident as a co-claimant.

The government maintains that he has left it too late to bring a challenge. The original regulations came into force on 26 March and legal commentators started debating their lawfulness immediately. It was not until five weeks later that Dolan’s lawyers notified Matt Hancock, the health secretary, that he was planning to sue. In a response dated 14 May, government lawyers maintained that Dolan had not complied with the requirement to act promptly: he should have written to Hancock much sooner. For that reason, said the government, they would invite the court to refuse Dolan the permission he needs to bring a claim for judicial review. If permission was granted, they would defend the claim.

Dolan’s two counsel, Philip Havers QC and Francis Hoar, say that their client did not think of bringing a legal challenge until 23 April, when Dolan read a report published a day earlier in the Daily Express that quoted Hoar’s views. Whatever the judges make of the delay, they will probably want to consider the substance of Dolan’s challenge.

His first claim is that Hancock had no power to make the regulations (or two subsequent amendments) under section 45C of the Public Health (Control of Disease) Act 1984. And even if the restrictions were not unlawful from the outset, they should have been relaxed when they became disproportionate. They also breached his human rights.

Havers and Hoar have set out these arguments in much greater detail than usual because they hope a court will consider the question of permission and the substance of the case at a single remote hearing, to be conducted by video link. It will save time if judges have read the full legal arguments in advance.

Why, then, do Dolan’s lawyers say that Hancock had no power to make the regulations? They claim the 1984 Act, as amended, was designed to allow for restrictions to be imposed on individuals or groups, not the whole country. As the courts have said, ‘fundamental rights cannot be overridden by general or ambiguous words.’

In addition, the government’s insistence on meeting five conditions before the restrictions could be lifted meant that Hancock could not decide whether the regulations were proportionate to the risk of infection, as he was required to do.

In Dolan’s view ‘it was irrational and disproportionate to impose a lockdown on the entire country for a virus that was known to pose little risk of mortality or serious illness to the healthy working population, while posing much greater risks to those with pre-existing health conditions and, particularly, those over 70 years old’.

Dolan’s third ground is that the regulations breach people’s human rights. He says judges need to consider the science on which the government based its policy; they must assess whether that remains a rational approach in the light of subsequent developments; and they should decide whether the regulations are the least restrictive means of containing the virus while not causing disproportionate harm.

In its initial response, the government argued that the regulations were lawfully made, they had not been questioned by a parliamentary committee set up to scrutinise delegated legislation and that they met the test of proportionality.

It’s interesting to compare Dolan v Secretary of State for Health and Social Care with the two Brexit-related challenges brought by Gina Miller that I analyse in my new book Enemies of the People?: How Judges Shape Society. In the first of her claims, Miller persuaded the courts to designate her as the lead claimant; in the second, she was competing with a parallel claim brought in the Scottish courts. On both occasions, Miller had to move extremely quickly in a crowded field to win her place in the law reports.

This time, nobody seemed very interested in taking the government to court until Dolan picked up the challenge. Many of the government’s critics seemed to think that, regardless of the legal niceties, a lockdown of some sort was necessary. Let us hope it can be safely lifted before the courts decide whether or not it was ever lawful.

 

Cover of 'Enemies of the People?'

Enemies of the People?: How Judges Shape Society by Joshua Rozenberg is available on the Bristol University Press website. Order here for £11.99.

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