COVID-19, Article 9 ECHR and judicial review: Dolan

On Tuesday, the Court of Appeal handed down judgment in R (Dolan & Ors) v Secretary of State for Health And Social Care & Anor [2020] 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.

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