The High Court (Lewis J) has refused an application for permission to apply for judicial review of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) and the approach taken by government in addressing the COVID-19 pandemic. The claimants also sought to challenge the government’s decision to stop providing education to children (with the exception of vulnerable children and the children of those classified as key workers) on school premises.
In considering whether to grant the claimants’ application, the court examined 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.
- Regulations breached various Articles in the ECHR, including whether the Secretary of State for Education 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).
The court held that the Regulations were not ultra vires; sections 45C(1) and 45C(3)(c) of the Public Health (Control of Disease) Act 1984 conferred power on the Secretary of State for Health and Social Care to make regulations applicable to people, premises and things in England as a whole, and those powers were not limited to making regulations in relation to specific individuals or groups of individuals. The court also found that some of the claimants’ challenges had become academic because the Regulations had been subject to a number of amendments since they were first made. In relation to school closures, the government now wished every child who could attend school to do so from September 2020, therefore, there was no remedy that could serve any real practical purpose.
As the case illustrates, the nature of the pandemic and the measures required to protect public health are rapidly evolving, so that challenges to lockdown and the regulations implementing aspects of it can very quickly become academic. (Dolan and others v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin) (6 July 2020).)
Credit Practical Law
