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Lockdown Regulations were not ultra vires - Court of Appeal Published Date: 20/01/2021

The Court of Appeal has handed down its judgement in the appeal by Dolan and others v Secretary of State for Health and Social Care.

The appellants challenge regulations made in response to the Covid-19 pandemic on 26 March 2020 and since which introduced what was commonly known as a "lockdown" in England. They submit that the regulations imposed sweeping restrictions on civil liberties which were unprecedented and were unlawful on three grounds.

  • First, the Government had no power under the legislation they used to make the regulations, namely the Public Health (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008 ("the 1984 Act").
  • Secondly, the regulations are unlawful applying ordinary public law principles; and
  • Thirdly they violated a number of the Convention rights which are guaranteed in domestic law under the Human Rights Act 1998 ("HRA").

The High Court refused permission to apply for judicial review on 6 July 2020 having heard oral argument four days earlier. This case is an application for permission to appeal his order refusing permission.

In refusing the appeal, the Court of Appeal Judges said in relation to the first ground for appeal “although permission to bring this claim for judicial review should be granted, in view of the public interest in the resolution of this important issue, the correct construction is that the Secretary of State did have power to make the regulations under the 1984 Act, as amended in 2008.”

In respect of the second ground, it continued: “We find it impossible to accept that a court could possibly intervene in this context by way of judicial review on the ground of irrationality. There were powerfully expressed conflicting views about many of the measures taken by the Government and how various balances should be struck. This was quintessentially a matter of political judgement for the Government, which is accountable to Parliament, and is not suited to determination by the courts.”

Finally, in relation to the last grounds for appeal, those grounds were academic, because the regulations under challenge have been repealed, and, in any event, they are not properly arguable.