Litigation challenging the vires of the Coronavirus Regulations has been rumbling along over recent months. On 6 July 2020, Mr Justice Lewis refused permission (pdf link here) in the Simon Dolan judicial review case – here is a link to that judgment (pdf).

Mr Justice Lewis held that the vires claim was ‘unarguable’.

The 1984 Act does therefore confer power on the Secretary of State to make regulations applicable to persons, premises, and things in England as a whole in appropriate circumstances and subject to duty to keep the restrictions under review. The claim that the Regulations were ultra vires, that is, outside the powers conferred by the 1984 Act, is, therefore unarguable. Permission to claim judicial review on ground 1 (paragraphs 26 to 48 of the amended claim form) is refused.

para [46]

On 4 August 2020, Lord Justice Hickinbottom ordered that the decision to refuse permission be heard by the Court of Appeal. He further ordered that if permission were granted in any aspect of the case then the substantive arguments should also be heard. Here is a link to the Hickinbottom order (pdf).

The Court of Appeal hearing is due to be heard 29-30 October 2020. The hearing times are 10.30-1 and 2-4.30 both days. There is no generally available link for members of the public to use to dial in to the hearing but it is permissible to listen to the hearing if you email Francis Hoar, one of Dolan’s barristers, who has kindly agreed to have a link to the hearing sent to those who email clerks@fieldcourt.co.uk who will then contact the Court of Appeal to get you a direct link.

For those interested in some background reading to the case, there are two blogs  by Jeff King (here and here) that set out his arguments for the lawfulness of the Regulations. Here is a sample of his argument:

It is in the very nature of new or unknown pandemic diseases that makes complete parliamentary foresight almost impossible to achieve, and a reaction time to them needs to be rapid in order to avert disaster. The fact that the WHO has strenuously advised social distancing, and that internationally speaking, lockdowns have been regarded by a critical mass of Governments and public health experts alike as the only way to make effective that recommendation, also suggests that it is a reasonable interpretation of the Part 2A powers under the 1984 Act.  If so much of the world could come quickly to the view that a lockdown was the only, inevitable and indeed proportionate response to this ‘new or unknown disease or threat,’ it is not unreasonable to read a SARS-responsive piece of legislation as catering for that kind of situation.

My reply to King is here arguing that the Regulations under the Public Health Act 1984 (as amended) are ultra vires. Here is a sample:

Vires

It is therefore difficult to see how the de facto house arrest of the entire population of the country, even with the listed exceptions, could be imposed on the general public by virtue of s 45C(3)(c) and s 45C(4)(d) of the 1984 Act on any orthodox construction. This is without even mentioning the interpretative rule that these kinds of provisions would be construed narrowly in favour of liberty under the legality principle.

It might have been preferable for these measures to have been introduced in an Act of Parliament or, better, the emergency provisions of the Civil Contingencies Act 2004 (‘CCA’) with the democratic safeguards that are built into those draconian powers.

Readers may also be interested in a timely speech (Youtube link here from 9.45m) by Lord Sumption on 27 October 2020 giving the Cambridge Freshfields Lecture. A transcript of the speech is also available on this link. Here is a sample:

Why did the government, once they had announced the lockdown on 23 March wait for three days until 26th before making their regulations, and then resort to the emergency procedure on the ground that it was so urgent that Parliament could not be consulted in advance? The obvious answer, I am afraid, is that Parliament adjourned for the Easter recess on 25th. They deliberately delayed their urgent regulations so that there would be no opportunity to debate them before the recess. The period of 28 days before any kind of Parliamentary scrutiny was required was thus extended by the 21 days of the recess, i.e. to the middle of May.

Further reading is also available on the Crowdfunding site set up by Mr Dolan which is here. If you scroll down to the bottom of the main page (“About the case”), there is a list of links to the published court documents.

The hearing promises to be a fascinating examination of the legality of the Regulations that will be followed closely by the Government and the media, as well as members of the public.

NB since writing this post, a direct link has become available. If you want to watch the hearing, you can do so by following this link:

https://www.justice.gov.uk/courts/court-lists/list-appeal-civil

Robert Craig, University of Bristol

(Suggested citation: R. Craig, ‘Coronavirus Regulations Case reaches the Court of Appeal – Hearing Dates 29-30 October 2020’, U.K. Const. L. Blog 28th Oct. 2020) (available at https://ukconstitutionallaw.org/))