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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dolan & Ors, R (On the Application Of) v Secretary of State for Health And Social Care & Anor [2020] EWCA Civ 1605 (01 December 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1605.html Cite as: [2021] 1 All ER 780, [2020] WLR(D) 654, (2021) 177 BMLR 35, [2020] EWCA Civ 1605, [2021] WLR 2326, [2021] 1 WLR 2326 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEWIS J
Strand, London, WC2A 2LL |
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B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON LADY JUSTICE KING
and
THE RT HON LORD JUSTICE SINGH
____________________
The Queen (on the application of (1) Simon Dolan (2) Lauren Monks (3) AB (by his litigation friend CD)) |
Appellants/ Claimants |
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- and - |
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(1) Secretary of State for Health and Social Care (2) Secretary of State for Education |
Respondents/ Defendants |
____________________
Sir James Eadie QC, Ms Zoe Leventhal, Ms Jacqueline Lean and Mr Tom Cross (instructed by the Government Legal Department) for the Respondents
Hearing dates: 29 & 30 October 2020
____________________
Crown Copyright ©
Lord Burnett of Maldon CJ, King LJ and Singh LJ :
Introduction
Factual Background
The parties
The regulations under challenge
The judgment of Lewis J
Grounds of appeal
Procedural issues
Standing
Time limits
Is the claim academic and, if so, should it nevertheless be considered in the public interest?
"When a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."
Ground 1
"45C Health protection regulations: domestic
(1) The appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).
(2) The power in subsection (1) may be exercised—
(a) in relation to infection or contamination generally or in relation to particular forms of infection or contamination, and
(b) so as to make provision of a general nature, to make contingent provision or to make specific provision in response to a particular set of circumstances.
(3) Regulations under subsection (1) may in particular include provision—
(a) imposing duties on registered medical practitioners or other persons to record and notify cases or suspected cases of infection or contamination,
(b) conferring on local authorities or other persons functions in relation to the monitoring of public health risks, and
(c) imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.
(4) The restrictions or requirements mentioned in subsection (3)(c) include in particular—
(a) a requirement that a child is to be kept away from school,
(b) a prohibition or restriction relating to the holding of an event or gathering,
(c) a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains, and
(d) a special restriction or requirement.
(5) The power in subsection (1) is subject to section 45D.
(6) For the purposes of this Part—
(a) a 'special restriction or requirement' means a restriction or requirement which can be imposed by a justice of the peace by virtue of section 45G(2), 45H(2) or 45I(2), but
(b) a restriction or requirement mentioned in subsection (4)(a), (b) or (c) is not to be regarded as a special restriction or requirement."
"45D Restrictions on power to make regulations under section 45C
(1) Regulations under section 45C may not include provision imposing a restriction or requirement by virtue of subsection (3)(c) of that section unless the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
(2) Regulations under section 45C may not include provision enabling the imposition of a restriction or requirement by virtue of subsection (3)(c) of that section unless the regulations provide that a decision to impose such a restriction or requirement may only be taken if the person taking it considers, when taking the decision, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
(3) Regulations under section 45C may not include provision imposing a special restriction or requirement mentioned in section 45G(2)(a), (b), (c) or (d).
(4) Regulations under section 45C may not include provision enabling the imposition of a special restriction or requirement unless—
(a) the regulations are made in response to a serious and imminent threat to public health, or
(b) imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed.
(5) For the purposes of this section—
(a) regulations 'enable the imposition of a restriction or requirement' if the restriction or requirement is imposed by virtue of a decision taken under the regulations by the appropriate Minister, a local authority or other person;
(b) regulations 'impose a restriction or requirement' if the restriction or requirement is imposed without any such decision."
"(1) A justice of the peace may make an order under subsection (2) in relation to a person ('P') if the justice is satisfied that—
(a) P is or may be infected or contaminated,
(b) the infection or contamination is one which presents or could present significant harm to human health,
(c) there is a risk that P might infect or contaminate others, and
(d) it is necessary to make the order in order to remove or reduce that risk.
(2) The order may impose on or in relation to P one or more of the following restrictions or requirements—
(a) that P submit to medical examination;
(b) that P be removed to a hospital or other suitable establishment;
(c) that P be detained in a hospital or other suitable establishment;
(d) that P be kept in isolation or quarantine;
(e) that P be disinfected or decontaminated;
(f) that P wear protective clothing;
(g) that P provide information or answer questions about P's health or other circumstances;
(h) that P's health be monitored and the results reported;
(i) that P attend training or advice sessions on how to reduce the risk of infecting or contaminating others;
(j) that P be subject to restrictions on where P goes or with whom P has contact;
(k) that P abstain from working or trading."
"45R Emergency procedure
(1) This section applies to an instrument to which subsection (4) of section 45Q applies by virtue of subsection (2)(a) or (b) of that section.
(2) The instrument may be made without a draft having been laid and approved as mentioned in subsection (4) of that section if the instrument contains a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved.
(3) After an instrument is made in accordance with subsection (2), it must be laid—
(a) in the case of English regulations, before each House of Parliament; …
(4) Regulations contained in an instrument made in accordance with subsection (2) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved—
(a) in the case of English regulations, by a resolution of each House of Parliament; …
(5) But if on any day during that period, on proceedings on a motion that (or to the effect that) the instrument be so approved, either House of Parliament … comes to a decision rejecting the instrument, the regulations cease to have effect at the end of that day instead.
(6) In reckoning any such period of 28 days, no account is to be taken—
(a) in the case of English regulations, of any time during which Parliament is prorogued or dissolved or during which both Houses are adjourned for more than 4 days; …
(7) Subsections (4) and (5) do not—
(a) affect anything done in reliance on the regulations before they ceased to have effect, or
(b) prevent the making of new regulations.
(8) In this section 'English regulations' … have the same meaning as in section 45Q."
(a) that P submits to medical examination;
(b) that P be removed to a hospital or other suitable establishment;
(c) that P be detained in a hospital or other suitable establishment; and
(d) that P be kept in isolation or quarantine.
This express exclusion suggests that Parliament intended the Secretary of State to be able to impose the other types of restrictions and requirements listed in section 45G(2).
"imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health."
"… The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
As Lord Hoffmann made clear in that passage, it is not only express language which may evince an intention to the contrary. Necessary implication will suffice.
"(3) The goal of all statutory interpretation is to discover the intention of the legislation.
(4) That intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose."
"An event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region …"
Ground 2
"The Government could only make this determination after adequate consideration of (at least) the following: (a) the uncertainty of scientific evidence about the effectiveness of the restrictions; and in particular the unreliability of the evidence of Prof Ferguson and the Imperial College teams (as set out in para 92 below); (b) the effect of the restrictions on public health, including deaths, particularly from untreated or undiscovered cancer and heart disease, mental health and the incidence of domestic violence; (c) the economic effect of the restrictions relative to the economic effect of alternative less restrictive means of limiting its spread; (d) the medium- and long-term consequences of the measures; and (e) whether, in the light of those considerations, less restrictive measures than those adopted would have been a more proportionate means of obtaining the objective of restricting the spread of the coronavirus without causing disproportionate harms."
Ground 3
Article 5
Article 8
Article 9
Article 11
Article 1 of the First Protocol
Article 2 of the First Protocol
Conclusion
i) Permission to bring a claim for judicial review is granted but limited to Ground 1 (the vires argument).
ii) The substantive claim for judicial review is retained within this Court and not remitted to the High Court.
iii) We dismiss the claim for judicial review on Ground 1. The Secretary of State did have the power to make the regulations under challenge.
iv) We refuse permission to appeal against the decision of Lewis J insofar as he refused permission to bring a claim for judicial review in respect of Ground 2 (the domestic public law arguments) and Ground 3 (the arguments under the HRA). Those grounds are now academic, because the regulations under challenge have been repealed, and, in any event, they are not properly arguable.
Postscript