Lockdown 'ultra vires'? Judicial review

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furlong

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https://www.bmmagazine.co.uk/news/l...eedings-against-the-government-over-lockdown/

Lawyers for entrepreneur Simon Dolan have today filed over 1000 pages of legal documents with the High Court.

The proceedings are against Matt Hancock, the Secretary of State for Health & Social Care – whose name is on the lockdown laws – and Gavin Williamson, the Secretary of State for Education, who has presided over the closure of schools and universities.


The aim of the proceedings is to lift the ruinous lockdown, restore the civil liberties taken away from the public and allow schools, healthcare services and the economy to restart.


Due to its huge potential significance in legal and practical terms, the Court is being asked to deal with the matter urgently on a speeded up timetable. Mr Dolan hopes to have his case heard in the first week of June.


The former Entrepreneur of the Year, Dolan said: “My lawyers have this morning filed my application to the High Court for a Judicial Review of the Government’s lockdown regulations.


“At the heart of this historic case is the protection of freedom and liberty for 66 million people.


“We are challenging a catastrophic set of decisions which will leave an indelible print from a boot which has stamped on the nation’s freedoms and will blight the lives of generation after generation.


“Every day that the lockdown remains in place is one more day the country cannot afford – on any level.


“For those reasons and more, this is very possibly the most important case of our lifetime.


“The claim argues that the lockdown measures are unlawful because they breach the European Convention on Human Rights, that the five tests for terminating lockdown are too narrow, and the measures taken by Government are disproportionate.


“We are filing this claim as the Chancellor warns of a deep, unparalleled recession.


“The number of people furloughed or unemployed stands at 10 million people, and billions are being wiped off the economy with every passing day.


“Those lucky enough to have jobs left at the end of this crisis could see income tax increase by up to 10p in the pound.


“The government has spent £13,000 per household on bailout so far.


“Yet there was no scrutiny, debate or vote on the lockdown laws before they were implemented back in March.


“The policies are completely disproportionate to the harm they are supposed to be aimed at preventing.


“A judicial review is the only effective means of challenging what the Government is doing and holding them properly to account.



“Boris and his crew have sleepwalked into this mess and are taking the nation over the cliff edge with them.


“Yet people are voting with their feet against lockdown. Just look at the number of people out on the beaches and outside yesterday.


“In Britain today, grandparents cannot see their grandchildren, businesses cannot function and will go bust, and the measures remove the right to political protest – or even to go and get a haircut.


“We are also pushing for full disclosure on the minutes of SAGE meetings – people need to know the full details of the scientific advice that lead to the decisions that has caused so much damage to the country.


“It is my name on the claim form, but I sincerely believe this is a claim on behalf of so many businesses, individuals and families. It is a claim back by thousands of people from all over the country who have donated to the crowdfund campaign to help launch this legal action, many of whom have written messages saying they are parting with money they don’t really have because they believe so strongly about having their freedoms and livelihoods stolen from them.


“Unfortunately, due to the Government’s actions, life will not simply snap back into place like in the movies.


“It won’t be just about putting on a facemask and getting on with it like nothing has happened.


“That is the sad fact we must all live with and it is why this case is so important.”


The legal cased came about after lawyers for Simon Dolan wrote to the Government warning them that Mr Dolan would seek a judicial review of the Government’s lockdown laws, unless drastic changes were made to ease them and so prevent irreparable damage being done to the Country’s health, education, wellbeing and economy;


Dolan’s intention is to challenge the lawfulness of the lockdown measures in England. He claims they were introduced unlawfully and disproportionately by the Government against the whole population. His campaign is backed by over 4000 crowdfunding supporters from all walks of life. They have so far raised nearly £130,000.


In his legal action, Mr Dolan is claiming that the sweeping lockdown regulations introduced by the Government in England are “ultra vires” (i.e. the Govt did not have power to introduce them as they did). This is highly complex matter and revolves round the wording of the Public Health (control of Diseases) Act 1984.


He also challenges the interference in people’s human rights in a variety of areas including private and family life, education, freedom of assembly, right to liberty and enjoyment of property.


He disputes the lawfulness of the Government’s “five tests” for lifting the lockdown which do not appear to take adequate notice of the huge damage that is being done to millions of people and their livelihoods.


He questions the rationality of the latest rules which are so riddled with inconsistencies in what is lawful and what is not lawful. These bring the law into disrepute.


Finally, he also challenges the continued closure of schools with the devastating harm it is doing to the prospects and welfare of pupils, in the face of overwhelming evidence that children and young people are not susceptible to Covid-19


Mr Dolan is represented by Michael Gardner of Wedlake Bell LLP solicitors and by barristers Philip Havers QC and Francis Hoar.
 
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Islineclear3_1

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Wow!

This, if the judicial review is allowed to go ahead could get rather interesting...

And I'm sure the government will continue to hide behind its secret scientific advisors and continue their rhetoric defence "we listened to PHE" who are themselves, quangos

Bring back civil liberties, economy and "proper" classroom-led education for our children
 

furlong

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Latest update:
Late on Friday afternoon, 3 minutes before their deadline expired, the Govt filed with us their defence against our claim. All 58 pages of it.

We will publish the whole thing on the site shortly, but the main story is that we have finally exposed that the whole schools shutdown was a lie. The Govt have admitted that they had no legal basis to close schools, and that they simply 'recommended it'.

This was something we suspected all along. The Govt says is is nonsensical for us to say that schools were closed because they remained open for key workers and there had only been a 'request' that schools should shut their doors to other pupils, yet the PM announced on March 18th that "schools will remain closed until further notice"

This is really quite an extraordinary lie, and one which never would have come out if we hadn't started this Judicial Review
 

island

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The Good Law Project has been looking at something similar but at the moment are focused on JRing a procurement decision to order over £100m worth of PPE from a tiny company in West Sussex.
 

MikeWM

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Unfortunately, having looked more closely at the 1984 Act, I'm not convinced that the regulations are ultra vires, although I may be missing something. Certainly something under the Civil Contingencies Act would have been better than using the 1984 Act, but I suspect the 1984 Act does actually suffice.

Still, I'm not a lawyer, I could well be wrong.

The continual argument that the regulations are too urgent to get the approval of Parliament, however, seems like it ought to be actionable, even if in the end it wouldn't make a lot of difference as Parliament would rubber-stamp them anyway.

The other arguments in Simon Dolan's lawsuit are unaffected by that, but I wouldn't expect the 1984 regs to be overturned on the grounds of ultra vires.
 

furlong

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A summary of the arguments from one of the barristers involved.

It was arguably unlawful for three reasons. Firstly, the measures were not within the parameters of the 1984 Public Health Act. That act does not grant powers to lock down the country, impose restrictions on when people can leave their houses, go to church, meet others or protest. Secondly, the secretary of state for health, Matt Hancock, had ‘fettered his discretion’ in relation to how long the measures would last – that is to say, he provided five tests which had to be complied with, all of which related to the virus, before the regulations could be changed. This was unlawful because it prevented him from looking at all factors when making his decision.

Finally, the measures were arguably disproportionate breaches of rights protected in the European Convention on Human Rights (ECHR), including Article Five, the right to liberty (impacted by regulations about when people could leave the house); Article Eight, the right to family and private lives; Article Nine, freedom of religious belief and expression; Article 11, the right to freedom of assembly and association; and Article Two, which relates to the right to education – impacted by the closure of schools.
Irrespective of the lawfulness of its use of the 1984 Act, what is notable is that the government has used what’s called the Emergency Procedure under that act to introduce every piece of legislation that has restricted people’s movements, economic activity and so on. These have typically been introduced to parliament one working day before they came into force. None of them received any scrutiny by parliament before they were enacted. None of them were debated in detail in the media before they were passed – they could not be, because they were not published until a few hours beforehand. What scrutiny there has been came weeks later, often since there have been subsequent amendments to those regulations. The first time that parliament debated these changes was in late April, and that was around six weeks after they had been introduced. The Emergency Procedure allows for the regulations to be imposed four weeks before they are debated, but that is not four ordinary weeks – it is four weeks when the Houses of Parliament are sitting. They were not sitting in late March and April. Consequently, there was no obligation to put the measures before parliament and have any scrutiny for many, many weeks and potentially indefinitely. That’s a very real democratic concern.
 

AdamWW

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Wow!

This, if the judicial review is allowed to go ahead could get rather interesting...

And I'm sure the government will continue to hide behind its secret scientific advisors and continue their rhetoric defence "we listened to PHE" who are themselves, quangos

Bring back civil liberties, economy and "proper" classroom-led education for our children
I'm a bit baffled by this.

How could these proceedings "lift the ruinous lockdown, restore the civil liberties taken away from the public and allow schools, healthcare services and the economy to restart."?

If the current restrictions are declared illegal, surely what happens next is that parliament is recalled and new legislation rushed through it? With an 80 seat majority (and almost certainly support from the opposition), it's very hard to see it not passing.

Edit:I've just seen they are also arguing they are a violation of the ECHR.

Maybe they are right but I find it a bit hard to see how the current situation wouldn't be considered an exceptional enough occasion to justify the action.
 

duncanp

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I hope this case succeeds.

At the very least the judge needs to tell the government that they cannot use the "..too urgent to consult parliament..." excuse as a means to introduce quite significant changes to people's lives without proper scrutiny.

If necessary, parliament can be recalled, so that there can be a proper debate, and any extra powers that the government is given should lapse unless specifically extended.
 

ForTheLoveOf

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Maybe they are right but I find it a bit hard to see how the current situation wouldn't be considered an exceptional enough occasion to justify the action.
That is as may be, but this case is effectively forcing the government to prove it, rather than just (implicitly) asserting it. That may require reference to the possible alternative measures that could have been taken, that would have been less intrusive.
 

LAX54

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I'm a bit baffled by this.

How could these proceedings "lift the ruinous lockdown, restore the civil liberties taken away from the public and allow schools, healthcare services and the economy to restart."?

If the current restrictions are declared illegal, surely what happens next is that parliament is recalled and new legislation rushed through it? With an 80 seat majority (and almost certainly support from the opposition), it's very hard to see it not passing.

Edit:I've just seen they are also arguing they are a violation of the ECHR.

Maybe they are right but I find it a bit hard to see how the current situation wouldn't be considered an exceptional enough occasion to justify the action.
Haven't Italy now admitted that they over-reacted, and whilst there were a lot of deaths, not all should have been put down to COVID, as they would have happened anyway, and that those that did pass away were mostly very elderly.
 

AdamWW

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Haven't Italy now admitted that they over-reacted, and whilst there were a lot of deaths, not all should have been put down to COVID, as they would have happened anyway, and that those that did pass away were mostly very elderly.
I don't know.

I also don't see what it has to do with whether the legal action could achieve what they want it to.
 

LAX54

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I don't know.

I also don't see what it has to do with whether the legal action could achieve what they want it to.
Was it not said at the outset, the rest of the World, saw what Italy were doing, and just copied them, well except maybe Sweden, and everyone is now backed into a corner.
 

OneOffDave

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It's fairly clear that if they had to repeal them, the government could just use the provisions of the CCA 2004, implement part 2 powers and have direct decision making and issue of regulations without then coming before parliament at all. Also there are significant derogations from the HRA in that approach
 

Tetchytyke

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The far-right tried the same arguments in the Republic of Ireland a couple of months ago, and that failed too.

Interesting that the case is being publicised by Spiked. This is a website funded by the extreme-right Koch brothers, who fund many of the more "interesting" libertarian organisations in the US.
 

yorksrob

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I think that the legal action is certainly worthwhile, both to test whether the Gmt acted within the law and to test how robust the law actually is.

Personally, I can't see the Government losing the case. All Western countries have acknowledged the situation as an emergency and have implemented emergency powers in one way or another.

The argument is less a legal one - that there is an emergency requiring emergency powers, and more a technical one - would a USA/Sweden/Germany approach have been more successful.
 

AdamWW

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I think that the legal action is certainly worthwhile, both to test whether the Gmt acted within the law and to test how robust the law actually is.

Personally, I can't see the Government losing the case. All Western countries have acknowledged the situation as an emergency and have implemented emergency powers in one way or another.

The argument is less a legal one - that there is an emergency requiring emergency powers, and more a technical one - would a USA/Sweden/Germany approach have been more successful.
If they did the right thing, but the wrong way, I think that's worthy of note.
 

Yew

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From what I remember, the crux of the argument is that the restrictions are above what can be imposed under the 1984 act, and should be under the Civil Contingencies act, which requires significantly more parliamentary scrutiny.
 

OneOffDave

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From what I remember, the crux of the argument is that the restrictions are above what can be imposed under the 1984 act, and should be under the Civil Contingencies act, which requires significantly more parliamentary scrutiny.
Once part two powers are invoked under the CCA. there's no requirement for any parliamentary scrutiny as in those situations things are moving far too fast for any scrutiny
 

DavidB

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Was it not said at the outset, the rest of the World, saw what Italy were doing, and just copied them, well except maybe Sweden, and everyone is now backed into a corner.
And Italy in turn largely copied China.
 

LAX54

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And Italy in turn largely copied China.
and thus, as can bee seen quite easlily snowballed around different Countries/Governments who thought they needed to be seen to be addressing the issue
 

AdamWW

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and thus, as can bee seen quite easlily snowballed around different Countries/Governments who thought they needed to be seen to be addressing the issue
So you think governments aross the world took such drastic action not after taking scientific advice and weighing up the effects of doing it or not doing it, but just so they could be seen to be doing something?
 

AdamWW

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Well how successful has it been? Sweden almost seem no worse off without a lockdown, they had restrictions agreed, seems that would likely to have been enough.
That is a different issue from suggesting that the most stringent restrictions imposed on the population during peacetime (maybe not just that) were there just so the government looked as if was taking action.

It's not clear though that had we done exactly the same as Sweden it would have had the same effect, as there are a few differences in the situations.
 

LAX54

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That is a different issue from suggesting that the most stringent restrictions imposed on the population during peacetime (maybe not just that) were there just so the government looked as if was taking action.

It's not clear though that had we done exactly the same as Sweden it would have had the same effect, as there are a few differences in the situations.
Well the thousands upon thousands that have been to umpteen beaches in May, June July, the protests in London and other places, seem to have had nil effect on the spread of the virus.
 

Richard Scott

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That is a different issue from suggesting that the most stringent restrictions imposed on the population during peacetime (maybe not just that) were there just so the government looked as if was taking action.

It's not clear though that had we done exactly the same as Sweden it would have had the same effect, as there are a few differences in the situations.
To be honest I think they did tend to follow like sheep and were scared that if they did something different it wouldn't work. I'm not convinced it was well thought through. We're now all stuck as no Government wants to stick its head above parapet and suggest we go back to normal life so in essence I think it was poorly executed and evidence to me suggest it was more driven by not wanting to be seen to be doing nothing or something different. Safety in numbers?
 
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