Dolan & Ors, R (On the Application Of) v Secretary of State for Health And Social Care & Anor

The general regulation-making power in Public Health (Control of Disease) Act 1984, section 45C, authorises a Minister to impose population-wide restrictions in response to a serious public-health threat. The particular examples and restrictions in section 45C do not cut down that broad power.

An academic judicial-review claim should be heard only where there is a good public-interest reason. A discrete issue of statutory construction likely to recur may justify determination, whereas fact-sensitive challenges to repealed measures ordinarily will not. In an emergency involving complex and developing scientific evidence, the court will be slow to interfere with the executive’s evaluative public-health judgment.

The appellants challenged the March 2020 English Covid-19 lockdown regulations. They contended that the Secretary of State lacked statutory power to make them, that they were unlawful on ordinary public-law grounds, and that they infringed Convention rights.

Lewis J, sitting in the Administrative Court, refused permission for judicial review save that he permitted a re-amended challenge concerning article 5. The original regulations were subsequently repealed and replaced. The appellants sought permission to appeal.

The Court of Appeal treated the renewed application as an application for permission to bring the underlying claim. The central issue was whether the court should determine the now academic vires challenge and, if so, whether Part 2A of the Public Health (Control of Disease) Act 1984 empowered the Secretary of State to make the regulations.

1. Permission was granted only on the vires ground, and that claim was dismissed. Although the regulations had been repealed, it was in the public interest to determine the discrete and recurring issue of statutory construction. The other grounds were academic and did not justify determination.

2. Section 45C(1) and (2) of the Public Health (Control of Disease) Act 1984 conferred a broad power to make regulations preventing, controlling or responding to infection. That power could support population-wide restrictions. The words “may in particular include” in section 45C(3) and (4) showed that the listed measures were illustrative, not exhaustive.

3. A “special restriction or requirement” in section 45C(4)(d) meant a restriction of a type which could be imposed by a justice of the peace. It did not confine ministerial regulations to restrictions on identified individuals or groups. Section 45D(3), by expressly excluding only four specified forms of restriction, reinforced the conclusion that other restrictions of the types listed in section 45G(2) could be imposed by regulations.

4. The principle of legality did not alter that construction. The statutory language was neither general nor ambiguous in respect of restrictions on movement, association and premises. The availability of emergency regulations under the Civil Contingencies Act 2004 did not prevent the Secretary of State using the separate power Parliament had conferred under the 1984 Act.

5. The court also concluded that the remaining challenges were in any event unarguable. The Government’s five tests for easing restrictions were a policy, not an unlawful fetter. The irrationality challenge invited the court to substitute its view on complex scientific, medical and political judgments. The restrictions did not amount to a deprivation of liberty under article 5 because they contained numerous non-exhaustive exceptions and a reasonable-excuse defence. The article 8, article 11, property and education grounds were likewise unarguable.

6. The court reiterated that judicial-review grounds must be concise. In particular, rolling challenges to rapidly changing decisions or regulations will usually be inappropriate.

• Court of Appeal (Civil Division): Granted permission to bring judicial review only on the vires issue, retained the claim, and dismissed it. It refused permission in respect of the domestic public-law and Convention-rights grounds.
• High Court, Queen’s Bench Division, Administrative Court: Lewis J refused permission to apply for judicial review, subject to permitting a re-amended article 5 ground which he held unarguable.