Government responds to our "lockdown" challenge
In a previous Blog article I set out our Pre-action Protocol Letter before Claim. I have now received the Governments letter in reply and I have copied the Government’s response below.
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English Democrats and Robin Tilbrook – v – The Prime Minister and the Secretary of State Health and Social Care
We are in receipt of your letter before claim, which we understand to have been sent on 23 April 2020, seeking an urgent response within seven days. This response is provided in accordance with the requirements of a judicial review pre-action protocol.
(1) The English Democrats
(2) Robin Tilbrook
(1) The Prime Minister
(2) The Secretary of State for Health and Social Care
Were proceedings to be issued, the proper defendant would be the Secretary of State for Health and Social Care. References to the Defendant in this letter are to the Secretary of State for Health and Social Care.
The Defendant may be contacted via the Government Legal Department. Due to COVID-19, service should, if possible, be effected by email rather than post to limit the handling of materials. All future correspondence should be addressed to Tessa Hocking on behalf of the Treasury Solicitor, at [email protected], quoting reference number Z2005059/TIH/HOI7 and copying Robert Norgrove at [email protected].
Details of the Decision being Challenged
- Your letter seeks to challenge the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”), which were made by the Defendant and came into force on 26 March 2020. It appears from your letter that the challenge is to the entirety of the Regulations.
- The proposed challenge is misconceived. If a claim is commenced, we will invite the Court to refuse permission and certify the claim as totally without merit. We note that you will be familiar with this process, given that your claim in English Democrats v The Prime Minister & Secretary of State for Exiting the European Union (CO/1322/2019) was similarly refused permission and certified as totally without merit.
The Legal and Factual Context
- The entirety of the United Kingdom is presently affected by the global COVID-19 public health pandemic. The extremely serious risk to life and health posed by COVID-19 has obliged the Government to take unprecedented, vital steps to limit the spread of the virus, save lives, and reduce the burden on the National Health Service.
- These measures include those set out in the Regulations, which came into force on 26 March 2020. The Regulations are applicable in England, although equivalent restrictions are in place across the rest of the United Kingdom.
- The Regulations were made under the Part IIA of the Public Health (Control of Disease) Act 1984, for the purposes of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination”: section 45C(1). The measures achieve precisely these purposes. They are similar to those instituted in countries across the world, faced with the same global public health emergency.
- Your letter makes no reference to any particular provision of the Regulations, and it is accordingly unnecessary to set out their full terms and effect here. There is no dispute that the Regulations impose a comprehensive set of restrictions and requirements on all aspects of daily life, affecting every person in England, because of the unparalleled threat to life and to the effective functioning of the National Health Service posed by the pandemic. The Regulations seek to strike a careful balance between preventing the spread of COVID-19 and permitting essential services to continue during the emergency period.
- The restrictions and requirements imposed by the Regulations remain in place from 26 March 2020 until the Secretary of State takes steps to terminate or amend them. The continuing need for those restrictions and requirements is required to be reviewed at three weekly intervals under the Regulations. In line with that requirement, a review of all aspects of the Regulations was carried out before the Government concluded on 16 April 2020 that the need for those restrictions and requirements had not materially altered. That need remains under constant review.
- Accordingly, the public health position in England has very recently been considered with the outcome that the Government continues to be of the view that the restrictions are necessary to address the incidence or spread of infection of COVID-19. Additionally, the Regulations are due to expire six months after coming into effect, being 25 September 2020.
- Further, the Regulations were made by the Defendant under the emergency procedure set out in section 45R of the 1984 Act, by reason of their urgency, following which they must be approved by a resolution of each House within 28 days (leaving aside days on which Parliament is adjourned, prorogued or dissolved: section 45R(6)) or else they expire after that period: section 45R(4). The Regulations are tabled for debate in the Commons on 4th May 2020. It is therefore inaccurate for your letter to suggest that there is no Parliamentary scrutiny of these emergency Regulations.
Although it is unclear precisely what grounds of challenge your letter advances in respect of the Regulations, any claim for judicial review would be misconceived.
- First, the First Claimant is the subject of an outstanding Order for costs arising from CO/1322/2019, referred to above, in the sum of £2,755.99, which it has thus far failed to pay. The First Claimant was represented throughout those proceedings by the Second Claimant, who is also the National Chairman of the First Claimant. It is an abuse of process for a party to commence further proceedings when it has refused to comply with a Court Order in previous, unmeritorious, proceedings: see, e.g., Harbour Castle Limited v David Wilson Homes Limited  EWCA Civ 505.
- Secondly, no explanation is advanced in your letter as to how or why either of the proposed Claimants have standing to challenge the entirety of the Regulations, or in what way either or both of the proposed Claimants are relevantly victims of the asserted breaches of Articles 5, 8, 9, 11 and 1 and 2 of the First Protocol ECHR, as required by section 7 of the Human Rights Act 1998.
- Thirdly, any claim for judicial review must be brought promptly: CPR r.54.5(1)(a). That freestanding requirement of promptitude is especially critical in a context of a general challenge to Regulations of the greatest national importance seeking to protect life on a mass scale, where reliance has been placed on them – and the population complying with them – for some five weeks. No explanation is given as to why your letter is only written now, when the arguments set out in it appear to be ones that could have been made from the very outset. Any claim would be refused permission for a failure to act promptly.
- Fourthly, and in any event, the relevant restrictions in the Regulations do not give rise to any unlawful interference with any of the ECHR rights referred to in your letter. As the Divisional Court held in R (Detention Action) v Secretary of State for the Home Department  EWHC 732 (Admin) at §27: “we must emphasise that it is the role of the court to assess the legality of the Secretary of State's actions, not to second-guess legitimate operational choices. The circumstances presented by the COVID-19 pandemic are unprecedented and are unfolding hour by hour and day by day. Within sensible bounds the Secretary of State must be permitted to anticipate such events as she considers appropriate and respond to events as they unfold. As matters stand, it does seem to us that she has taken and will no doubt continue to take prudent measures, both precautionary and reactive.” The margin to be afforded to the Defendant is particularly extensive when faced with what Chamberlain J correctly described in University College London Hospitals Foundation Trust v MB  EWHC 882 (QB) as “the most serious public health emergency for a century”: at §56. All of the restrictions and requirements imposed by the Regulations pursue a legitimate aim: namely, the protection of public health. The Regulations are rationally connected to that aim: they seek to reduce to a minimum all contact between people so as to limit the spread of COVID-19 and to prevent so far as possible National Health Service resources being placed under an unmanageable strain. They are prescribed by law and strike a proportionate balance. In particular, the unprecedented measures taken in the Regulations, affecting every person and their way of life, are necessary to protect the lives of people in England during this public health emergency. This is the Government’s overriding concern. It is principally achieved by enforcing an extensive but proportionate reduction in all forms of social contact during the emergency period, in common with other countries across the world. The terms of the Regulations are kept under constant review, by reference to the constantly changing situation. Accordingly, your letter is wrong to imply any inconsistency with the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, whether in relation to the Regulations or any approach to the review of those Regulations (so far as this is alleged), even if those Principles were of relevance to the ECHR.
- Fifthly, the passing assertion that the Defendant has acted ultra vires is unexplained and is not understood. Nor is it understood, or explained, how the Regulations are “Contrary to the fundamental constitution of England as set out in Magna Carta and the English Parliamentary Constitutional Convention Declaration of Right of 1689 and its subsequent enactment in the English Bill of Rights 1689.” This is incoherent.
Action Requested and Urgency
- For the above reasons, the Defendant does not agree that the Regulations are unlawful and must be rescinded.
- Nor, in any event, are the Claimants entitled to demand the right to agree any replacement Regulations or guidance.
- For the avoidance of doubt, any claim for judicial review issued will be defended and permission opposed. The Defendant’s full legal costs will be sought in the event that permission is refused.
Details of Other Interested Parties
- There are no other interested parties.
Alternative Dispute Resolution
- Alternative dispute resolution is not practical.
Requests for Information and Documents
- No information or documents are sought.
Address for Further Correspondence and Service of Court Documents
- As noted above, all future pre-action correspondence should be sent to, and in the event that proceedings are later issued, documents should be served by email to [email protected], copying [email protected].
- Please acknowledge receipt of this letter.
For the Treasury Solicitor