Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

Happy new year! Our first case summary of the year and I’m going to focus the next few blogs on a few top cases from 2020, inspired by the – a great site btw, so please do check them out1

The first case is talking about a COVID 19 case from last year…

The appellants challenged lockdown regulations made in response to the pandemic on 26 March 2020.

Their argument was that the Regulations imposed sweeping restrictions on civil liberties which were unprecedented and unlawful because:

(i) the Government had no power under the legislation they used to make the Regulations; (ii) the Regulations were unlawful under ordinary public law principles; and

(iii) the restrictions violated a number of rights under the European Convention on Human Rights (ECHR).

The High Court refused permission to apply for judicial review and the appellants appealed to the Court of Appeal. Although it was prepared to hear the case (despite the Government’s submission that it had become academic), the Court of Appeal dismissed the claim too.

First, it was held that the Government had the power to impose general and specific restrictions on the population and that the Civil Contingencies Act 2004 also provided for the making of emergency regulations if existing legislation could not be relied upon without risk of serious delay.

Secondly, the Court found that the Secretary of State had not unlawfully fettered his discretion, as at all times it has been possible for those who disagreed with the Government (including in Parliament and wider society) to make representations to invite it to ease restrictions. There were no grounds to argue that these had not been taken into account.

Finally, as to the human rights challenge, it was held that the restrictions were not incompatible with the right to liberty (as there was no deprivation of liberty on the facts), the right to private and family life (as there was no general principle that permission should be granted if it was arguable that there had been an interference with family life), the right to peaceful assembly (as the Regulations provided for a general defence of “reasonable excuse” to contraventions of the prohibition of gathering in public), the right to property (as there is a wide discretion afforded to the executive to balance this right against other considerations), or the right to education (as there was no order that schools had to close or education had to cease).

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