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Our response to Government Reply on COVID19 Lockdown


Here you can find our response to the Government Reply over the COVID 19 Lockdowns

Dear Madam


Re:  English Democrats (Reg No. 6132268) and Robin Tilbrook – v – The Prime Minister and the Secretary of State Health and Social Care (Your Ref:Z2005059/TIH/HO17


Thank you for your letter of the 30th April.  We respond to your points numeratim as follows:-


  1.      We refer to the old and ignoble advocate’s adage of:- “If your case is strong on the law then bang on about the law; if you case is strong on the facts then bang on about the facts; but if your case is neither strong on the law nor on the facts then bang on the table”. Respectfully, much of your letter is evidently banging on the table and either ad hominem and/or merely prejudicial, instead of addressing the issues.  


          We contend that a certification of “Totally Without Merit” (particularly in cases such as our client’s previous one where many lawyers, including eminent ones, had already opined that the case was of strong merit) is a naked breach of basic rights to a fair hearing, going back to Magna Carta in England, and also under Article 6 in the European Convention of Human Rights. 


  1.     There is little point in referring to the “entirety of the United Kingdom” when the British Government and, in particular, the Secretary of State for Health, only has jurisdiction over Health in England. 


As the example of Sweden shows, the British Government has by no means been “obliged” to act in the way that it has.  The way in which the Government has acted has probably not limited the spread of the virus, nor probably saved lives, albeit it is accepted that it has acted to “reduce the burden of the National Health Service”, but that is not a legal justification for its actions which are politically motivated and also in response to Mainstream Media hysteria. It has certainly crashed the English economy.


  1. We would ask for sight of the “Review”, which you say was concluded on the 16th April.


More generally on the issue of ultra vires we would respond as follows:-


Statutory Instrument: 2020 No. 350


Public Health, England

The Health Protection (Coronavirus, Restrictions) (England)

     Regulations 2020


Statutory Instruments are not primary legislation and therefore according to trite Law they cannot legally exceed the scope of the powers granted to Ministers under the primary legislation.  In this case this is the Public Health (Control of Disease) Act 1984.  This is an Act primarily focussed on controlling international trade and travel, particularly with reference to shipping and docks and, by extension, also airports and aerodromes.  There is no authority in this Act for a general Lockdown of the People of England, or for many of the businesses conducted by the People of England.


The Prime Minister is reported to have expressly refused to authorise regulations to control international travel as is reported here:- 

>>> Priti Patel in row with Boris Johnson over closing Britain's borders to keep coronavirus at bay >>>>


The result, as has been reported in the Guardian (on 5.5.20) is that, in the period from 1st January 2020 to 23rd March 2020, the Government had permitted over 18 million international travellers to come into the United Kingdom unchecked and untested for Coronavirus, even from points of origin where there was known to be infection. 


The Public Health (Control of Disease) Act 1984 would have permitted restrictions to such travellers, but as stated above, the Prime Minister expressly declined to take steps which were within the powers of the Act and thus of the Secretary of State. 


The Government also did not take action under the Civil Contingencies Act 2004, nor under the Coronavirus Act 2020 which the Government rushed through Parliament duplicitously, claiming that it needed the powers urgently. 


Within 12 hours of Royal Assent for this Act, the Secretary of State had promulgated his pre-prepared “Health Protection (Coronavirus, Restrictions) (England) Regulations 2020”, purportedly pursuant to the 1984 Act. 


The Claimants will rely upon the natural meaning of The Public Health (Control of Disease) Act 1984, considered both literally and also purpositively


It is submitted that the 1984 Act only provides powers to create  

Regulations against individual persons or singular gatherings, not a

general Lockdown of the People of England.


The effect of permitting on-going mass international travel has undoubtedly been to vastly facilitate the spread of Coronavirus infection into the population of England.


If that was not enough, the Government, for the sake of the NHS, promulgated the regulation:- “Covid-19 Hospital Discharge Service Requirements” (here is the link to that regulation >>> ).

Under this large numbers of elderly “bed-blockers”, whom NHS management had long wanted to get out of the hospitals, were transferred into Care Homes, paid for by Government funds.  This had the effect, which seems to have been in the contemplation of the drafters of this regulation, of spreading the Coronavirus infection widely within the Care Homes to which these hospital patients were sent.  Thus, no doubt, very considerably increasing the death toll in such homes. 


The Government’s actions in “Locking Down” the general population of England whilst continuing to permit mass international travel and placing at risk the inmates of care homes and crashing the English economy, is in stark contrast to the careful and responsible response which the Swedish Government has adopted for Sweden. 


It was also irresponsible, reckless and ultra vires for regulations to be issued for the purposes, not of controlling the disease itself, but instead of “saving the NHS”. 


NHS England, is the only national health service which is under the control of the British Government.  NHS Wales, NHS Scotland and NHS Northern Ireland are under the control of their respective National and Provincial Governments and not of the British Government.  That is why the British Prime Minster and British Secretary of State from the British Cabinet are the proper Defendants in these England focussed proceedings.


It is also noted that the status of the Coronavirus (AKA Covid-19) was reduced from  the status of a “High Consequence Infectious Disease” under the NHS guideline “High consequence infectious diseases (HCID)” published on the 19th March 2020. Further it is noted that the Advisory Committee on Dangerous Pathogens (ACDP) is also of the opinion that Covid-19 should no longer be classified as a HCID.


  1.     Your point about the unpaid Costs Order is, with the greatest of       respect, preposterous as an obstacle to bringing Judicial Review against different parties, on a different matter. We refer to 2 above.  The case quoted is also irrelevant.  The First Claimant is however prepared to pay the £2,755.99 which you refer to.  Please provide details of where and how to pay that and what reference to apply etc. 


  1. With the greatest of respect it is obvious that political parties and corporations and individuals all have enough standing to challenge whether or not the Government has behaved with constitutional propriety within the powers given to them and, in accordance with the European Convention of Human Rights, by way of Judicial Review.  This is as opposed to bringing a claim for damages, which does of course require proof of loss. This is cogently expressed in Supperstone and Goudie - Judicial Review, published by Butterworths


  1.     If the Regulations had been, as initially notified, restricted to a duration of three weeks (despite our case that they would still have been illegal), it would arguably not have been proportionate to bring Judicial Review proceedings to have them quashed. 


In the light of the Government’s expressed intention to continue with these Regulations, it has become more and more important to bring this case.  In addition, it is noted that others are now feeling likewise and are also proposing to bring Judicial Review proceedings.  The primary requirement is, of course, as you well know, that the Judicial Review is brought within three months.


Further it is noted that the Regulations were amended on the 22nd April 2020 by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (Statutory Instrument 2020/447) (“The Amended Regulations”).  The Amended Regulations introduced stricter conditions on the English public, in particular by preventing them from remaining outside their residence, rather than restricting them from leaving them, save for a “reasonable excuse” (sic!). These Amended Regulations were made without any publicity or democratic debate.  Both the Regulations and the Amended Regulations are challenged herein. 


  1. With respect we cannot see how you can make such a claim as it is self-evident that the Restrictions in the Regulations include many interferences with the European Convention of Human Rights. E.g. Those Restrictions that would prevent gatherings of more than 2 people are disproportionate breaches of the fundamental rights and freedoms protected by Articles 5, 6, 9, 11 and 14 and by Articles 1 and 2 of Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms.


  1. It is, with respect, obvious that the “Covid-19 Pandemic” is not unprecedented since there have been previous pandemics, including some much worse than the current situation.   To take one example, the Spanish Flu killed over 250,000 within the United Kingdom and over 50 million worldwide.  Yet there was no Lockdown and no Restrictions but, on the contrary, a General Election was held in December 1918, in the middle of that genuine pandemic.


  1. The Restrictions imposed by the Regulations had as their primary objective what is primarily a management measure regarding the running of NHS England.  As already explained, the Government’s actions have clearly not focussed just on the protection of public health. 


  1. We have set out above much more of our case on ultra vires. We submit that, given the obvious discrepancy between the focus of the Act on travel and the Regulations and Amended Regulations on Lockdown, that the Defendants’ Regulations and Amended Regulations are ultra vires.  The operation of the Regulations and Amended Regulations are “contrary to the fundamental constitution of England as set out in Magna Carta and the English Parliamentary Constitution and Convention Declaration of Right of 1689 and it subsequent and its subsequent enactment in the Bill of Rights 1689”.  This is wholly coherent.  The Declaration of Right 1689 is the fundamental constitutional lynchpin of England’s constitution. It prescribes the proper bounds of Parliament and it is Ultra Vires and Unconstitutional for Parliament to purport to legislate against the bounds set for it and the Executive by the Declaration of Right. (See [1953] ScotCS CSIH_2, 1953 SC 396, 1953 SLT 255)


  1. Whilst what we suggested in our previous letter is that it might be possible to agree regulations that would be lawful, our primary contention is, of course, that so far as the existing Regulations and Amended Regulations, Guidance and the Coronavirus Act 2020 are concerned, that they should all be quashed as being legally and constitutionally invalid. 


  1. It is obvious that in fact any legal person or individual within England is also an interested party


More generally, we support and endorse the arguments put forward by Messrs Wedlake Bell in their letter to the Second Defendant dated the 30th April on behalf of their client Simon Dolan.


Yours faithfully