On Tuesday, the Court of Appeal handed down judgment in R (Dolan & Ors) v Secretary of State for Health And Social Care & Anor  EWCA Civ 1605, in which the appellants challenged the Health Protection (Coronavirus, Restrictions) (England) Regulations (SI 2020/350) which introduced the first lockdown in England. Having heard oral argument, Lewis J had refused permission to apply for judicial review on 6 July; and the hearing before the Court of Appeal was an application for permission to appeal his order refusing permission. The appellants argued that the Regulations were unlawful on three grounds:
- that the Government had no power under the Public Health (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008, to make the Regulations;
- that. applying “ordinary public law principles”, the Regulations were unlawful; and
- that they violated a number of the Convention rights guaranteed in domestic law by the Human Rights Act 1998.
Although the Regulations had been subsequently amended on several occasions and had since been repealed, the appellants contended that it remained important that the legal issues which arose should be authoritatively determined in the public interest. Of particular interest to commentators on law and religion, the second appellant, Ms Lauren Monks, is a Roman Catholic who had complained inter alia that as a result of the Regulations neither she nor her 10-year-old son had been able to attend Mass in church during the relevant period, contrary to the guarantees under Article 9 ECHR.
The Court of Appeal (Burnett LCJ, King & Singh LJJ) granted permission to bring a claim for judicial review but limited that claim to Ground 1 (the vires argument). The Court retained the substantive claim for its own determination, rather than remitting it to the High Court.
Specifically on the Article 9 point, Lewis J had refused permission on that ground because amendments made to the Regulations with effect from 4 July 2020 had rendered the issue academic. The Court’s view was that he had been right to do so . Furthermore, Article 9 was to be the subject of a forthcoming claim for judicial review in R (Hussain) v Secretary of State for Health and Social Care  EWHC 1392 (Admin), in which a substantive hearing was pending in the High Court:
“In those circumstances, we do not consider that it would be appropriate to say any more about the merits of the argument under article 9” .
The Court dismissed the claim under Ground 1, concluding that “The Secretary of State did have the power to make the regulations under challenge” . Further:
“We refuse permission to appeal against the decision of Lewis J insofar as he refused permission to bring a claim for judicial review in respect of Ground 2 (the domestic public law arguments) and Ground 3 (the arguments under the HRA). Those grounds are now academic, because the regulations under challenge have been repealed, and, in any event, they are not properly arguable” .