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

Section 45C of the Public Health (Control of Disease) Act 1984 authorises population-wide restrictions responding to an epidemic. Its broad enabling power is preserved by the non-exhaustive examples of permissible restrictions. A special restriction identifies a type of measure available to a justice of the peace; it does not import the circumstances required for an individual judicial order. Express statutory exclusions remain applicable.

An academic judicial review may exceptionally proceed where a discrete statutory question requires resolution in the public interest. Permission on a qualified Convention right may be refused where justification is unarguable. A legislative challenge requires attention to whether the legislation can operate proportionately. A reasonable-excuse defence permits consideration of Convention rights on the particular facts.

Simon Dolan, a British citizen resident in Monaco who owned United Kingdom businesses, Lauren Monks, a resident whose religious practice and son's schooling were affected, and AB, a school pupil acting through a litigation friend, challenged England's initial coronavirus restrictions. The Secretary of State for Health and Social Care made the regulations. The Secretary of State for Education was also a defendant because the claim concerned the provision of education.

The appellants alleged that the regulations exceeded the powers conferred by the Public Health (Control of Disease) Act 1984, infringed ordinary public law principles and violated Convention rights. Lewis J refused permission to apply for judicial review, including challenges concerning movement, assembly, worship, property and education. The appellants sought permission to appeal.

The regulations had been amended and then repealed before the Court of Appeal hearing. The court therefore considered whether any ground should nevertheless proceed in the public interest. The principal substantive question was whether the statutory health-protection powers authorised restrictions applying to the population generally.

1. Permission to apply for judicial review was granted on Ground 1 alone. The court retained and dismissed that substantive claim. Permission to appeal on Grounds 2 and 3 was refused because those grounds were academic and, independently, unarguable. The article 9 merits were left open.

2. Academic public law disputes should be heard cautiously and only for a good public-interest reason. The vires issue warranted determination because it was a discrete statutory question affecting continuing regulation-making and potential criminal defences. The fact-sensitive challenges offered no comparable basis for proceeding: R v Secretary of State for the Home Department, ex parte Salem applied (paras 39–42).

3. Section 45C(1) and (2) of the Public Health (Control of Disease) Act 1984 conferred broad powers to respond to an epidemic. Subsections (3) and (4) supplied non-exhaustive examples. A special restriction meant a measure of the type available to a justice of the peace, rather than one confined to circumstances permitting an individual judicial order. The express exclusions in section 45D(3) supported that construction (paras 59–65).

4. The principle of legality did not resolve the narrower question whether expressly contemplated restrictions could apply population-wide. Statutory language, context and purpose supported that power. The possible availability of emergency powers under the Civil Contingencies Act 2004 imposed no obligation to use them instead (paras 66–78).

5. A strict policy did not fetter discretion where representations remained possible. The relevant-considerations challenge lacked an evidential foundation. Parliamentary approval increased the weight accorded to executive judgement without excluding review. Complex scientific evidence, expert advice and competing social interests made the irrationality challenge unarguable in this context (paras 81–90).

6. The movement restrictions, with their non-exhaustive exceptions and reasonable-excuse provision, arguably deprived no one of liberty under article 5. Article 8 interference was unarguably justified. Permission need not follow every arguable interference with a qualified right where justification can confidently be established at that stage. Democratic accountability and institutional competence supported a wide margin of judgement (paras 93–97).

7. The assembly restrictions could operate proportionately through the reasonable-excuse defence. Convention rights could inform that fact-specific inquiry. Any potential incompatibility could also be addressed through section 3 of the Human Rights Act 1998. The legislative article 11 challenge was therefore unarguable (paras 101–107).

8. The property challenge lacked an arguable evidential basis and proportionate control of use required account of financial support. No government order required school closure or cessation of education; remote provision was intended. The exceptional circumstances disclosed no arguable educational-rights challenge (paras 109–114).

9. By way of procedural guidance, promptness remained necessary within the three-month limit. Judicial review grounds should be concise. Although no absolute rule prohibited evolving claims, rolling challenges were particularly inappropriate where changing regulations raised time-sensitive evidential issues (paras 34–35, 116–121).

• Court of Appeal: In [2020] EWCA Civ 1605 , the court granted permission to apply for judicial review on vires, retained and dismissed that claim, and refused permission to appeal concerning the remaining grounds.
• High Court, Administrative Court: Lewis J refused permission to apply for judicial review on 6 July 2020 after an oral hearing. Following further submissions, he refused permission on the article 9 ground by an order sealed on 22 July 2020. The judgment's citation is not stated.