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Articles | Fri 15th May, 2020
On 30 April, entrepreneur Simon Dolan sent a Pre-action Protocol letter to Matthew Hancock notifying the Government of a pending judicial review challenging the legality of its Coronavirus response. The contemplated action is targeted at the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which impose the so-called ‘lockdown’ rules.
The prospective action lays out its stall in a 22-page letter focusing on vires and proportionality, the latter used to underpin various public law illegality challenges as well as claims of unjustified infringement of a cross-section of ECHR rights. It may well be that proportionality arguments will be difficult to sell, not least because the questions being asked are highly political; in any event the following focuses on the ultra vires challenge.
Section 45C of the Public Health (Control of Diseases) Act 1984 (aptly from the claimant’s point of view referred to as the ‘1984 Act’) provides the power under which the challenged Regulations were made. Section 45C was inserted along with a whole host of other 45[X]s in a new Part 2A by the Health and Social Care Reform Act 2008. In Part 2A there are in essence three different ways in which restrictions can be imposed. These are that:
The Regulations made in February for detaining those returning from Wuhan, China, were an example of (b). They did not impose restrictions per se but allowed the Minister to make decisions on quarantining certain individuals. The Regulations made in March imposing ‘lockdown’, however, were an example of (a): the restrictions were on the face of the legislation.
The best test of the hypothesis that the Regulations are ultra vires is whether the Minister had the power to make regulation 6 of the March Regulations. This regulation prevents the entire population of England from leaving their home without a ‘reasonable excuse’.
Is there a power to make such a restriction in the Act? Set out in section 45C(4) are the types of restrictions that a Minister may impose. The only shoe that fits is that this is as a ‘special restriction or requirement’. How is such defined? Well the statute tells us (s45C(6) read with s45D(3)) that a ‘special restriction or requirement’ is any one of those which a Justice of the Peace would have the power to make, but certain defined restrictions are excepted. The JP’s relevant powers are set out in section 45G(2).
For present purposes, this means that a Minister is expressly permitted to impose a requirement that “P be subject to restrictions on where P goes or with whom P has contact” but expressly prevented from imposing a requirement that “P be kept in isolation or quarantine”. “P” is, by virtue of section 45J, read in section 45G as meaning either a person or, importantly, a group of persons.
So the questions are:
Analysis of (1) is fairly straightforward – we need to understand what is meant by the term ‘kept in quarantine’. If regulation 6 amounts to such, then straightforwardly the Minister was not allowed to impose it and it is ultra vires.
To skirt over an etymological history of the word – in brief, a period of forty days for which crew had to wait on their ships docking in Venice during the Black Death – it is not an easy argument to make that regulation 6 imposes a ‘quarantine’ within the ordinary meaning of the word. Indeed a more archetypical quarantine restriction would be akin to that made in February concerning those returning from Wuhan, which separated them from the general population, by holding them in detention at the Wirral facility to wait for a defined period of time before being released. Suspected or plausible exposure, detention, separation, and defined duration appear to be key elements of a quarantine. The verb ‘kept’ only lends support to the notion that a person needs to be held under the charge of an authority.
The effects of regulation 6 may be a bit quarantine-like but you would be hard pushed to argue that a quarantine has been imposed when people are specifically permitted to leave their homes for certain (albeit limited) purposes and thereby to mix with the general population. Arguably the Government’s guidance that ‘clinically extremely vulnerable people’ stay inside for 12 weeks could be viewed as such, but this requirement was not set out in the secondary legislation.
Analysis of (2) is slightly more complicated. In a general sense regulation 6, which says people cannot leave their homes without a reasonable excuse, is clearly a restriction on where a group of people goes and with whom they have contact. But can the Minister rely on such a general interpretation? Where a statutory provision confers an apparently general or wide power, the courts may determine the scope of that power with reference to Parliament’s intentions when passing the primary Act. As Lord Bridge said in R (Chetnik Developments) v Tower Hamlets LBC  AC 858 – “Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can be validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended.”
To seek out the intention of the Act, we can first look at the surrounding provisions to determine whether when read in context light can be shed on how broad the power was intended to be. We can also (in defined circumstances, which I shall pass over here) look behind the Act at the actions of the Parliamentarians at the time of passing the legislation.
First (and much is made of this in the letter) the other restrictions which a Minister is expressly empowered to make in s45C are that a child is to be kept away from school; or that restrictions are set related to the holding of an event. Given those singulars, can it be said that Parliament really intended the Minister to be able to use powers as against the entire population? Similarly, the clarification that P is to be read as including a group of persons is made in with reference to a Justice of the Peace’s powers. A JP very clearly could not make an order restricting the movements of the entire population. It is therefore more than arguable that when sections 45C, 45G and 45J are all read together ‘a group of persons’ was not intended to mean an entire population even if technically speaking that is a ‘group of persons’.
Second, a Minister is, as above, not permitted to make regulations imposing a quarantine, which can only be ordered by a Justice of the Peace. The inferable intention may well be that certain more draconian powers should not be available to a Minister and ought only to be imposed by a judicial determination on consideration of evidence. A restriction such as regulation 6 is arguably a more severe restriction on personal freedoms than a quarantine which might be of very limited duration; it seems unlikely to be the intention of Parliament that a Minister should be given a restrictive power which is more aggressive than one he/she is expressly prevented from exercising.
Finally (and a point again strongly made in the letter), urgent regulations made under Part 2A of the 1984 Act are not subject to the same Parliamentary scrutiny as arguably equivalent powers in the Civil Contingencies Act 2004. Could this be because Parliament did not intend regulations made under the 1984 Act to be of such national scope and significance as those made under the 2004 Act? A quick look at the Grand Committee debates in the House of Lords at the time of the passing of the Act reveals the following statement from the Minister in the Lords,“the Public Health (Control of Diseases) Act is not the Civil Contingencies Act. The types of provisions that could be made are very different and it would therefore be inappropriate to apply the civil contingency emergency regulations procedure”. Such a statement lends strong support to the view that the Parliamentarians at the time did not anticipate regulations such as those imposing national ‘lockdown’ as falling under a Minister’s powers.
On the other hand, other powers which a Minister expressly can impose by way of regulations involve fairly severe infringements of personal freedoms – i.e. that a group of persons submit to questioning, abstain from work or be subjected to health monitoring. Likewise, although the targets of a Minister’s powers are expressed in the singular in section 45C, it seems highly unlikely that Parliament would have envisaged a Minister making a piece of secondary legislation which said “little Joe Blogs should not go to school” or similar. Finally, a House of Commons Library Research Paper published alongside the Bill’s Second Reading explains with respect to section 45C – “These regulation making powers could be considered fairly wide reaching and potentially draconian”. The Government may be able to argue that the checks on power set out in section 45D, which importantly mandate that a Minister’s restrictions be proportionate, support the view that 45C is meant to convey a broad power, the boundaries of which are defined by the requirement for proportionality, and not limited in the same manner as the powers of a Justice of the Peace.
There is certainly something in it for both sides, and it will be more than interesting to see how the argument unfolds before the Administrative Court in the coming months.