High Court refuses permission for judicial review challenge to lockdown regulations


Re: Dolan & Ors v Secretary of State for Health and Social Care & Anor [2020] EWHC 1786 (Admin)

The claimants sought permission to bring judicial review proceedings to challenge the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 (as amended) as well as a decision to close schools and educational establishments. The case raised a number of issues for consideration including whether some of the grounds of challenge are now academic and whether the Regulations are unlawful because they are outside the powers conferred by Parliament.

The High Court held that the Secretary of State had the legal power to make the Regulations. In making and maintaining the Regulations, he had not fettered his discretion, had regard to relevant considerations and acted neither irrationally nor disproportionately. The claim to challenge the restrictions on movement and gatherings in the original regulations 6 and 7 were held to be academic as those regulations have been replaced. The challenge to the 18 March 2020 announcement relating to schools was also considered to be academic in the circumstances. Permission to apply for judicial review to challenge those regulations and that decision was therefore refused.

The amended regulation 6 in force on 2 July 2020 requiring persons not to stay overnight other than where they live was held not to be a deprivation of liberty within the meaning of Article 5 of the Convention. Though the Regulations involved a restriction on the freedom of assembly and association, there was no realistic prospect that a court would find that regulations adopted to reduce the opportunity for transmission by limiting contact between individuals was disproportionate. Permission to challenge the Regulations on the basis of Article 8 of the Convention or the first claimant’s property rights under Article 1 of the First Protocol to the Convention was also refused.

Zoe Leventhal was involved in this case.