Challenging lockdown laws

An explainer for new readers

Simon Dolan (pictured) is a British businessman who is challenging the UK government’s coronavirus lockdown regulations. I explained the basis of his claims in a piece published on 26 May and mentioned his case again in a broader article that appeared on 3 August. Dolan’s crowdfunding page provides links to the main legal documents.

A challenge to ministerial regulations is normally made by bringing a claim for judicial review. I explain how this works in my new book, Enemies of the People? All you need to know for now is that you need permission from a judge before you can apply for judicial review.

That requirement was introduced to filter out unmeritorious claims. A judge can dismiss them without an oral hearing. But the filter has now been refined so that judges can ask to hear a difficult claim argued out in full before deciding whether it should proceed.

That happened on 2 July, at a one-day hearing conducted remotely by a High Court judge. In a 24-page judgment delivered on 6 July, Mr Justice Lewis refused Dolan permission to bring his claims (subject to one point that need not concern us).

Dolan then made a written application to the Court of Appeal for permission to appeal. After reading his lawyers’ submissions, Lord Justice Hickinbottom issued an order on 4 August.

Permission to appeal was neither granted nor refused by the appeal judge. Instead, Hickinbottom adjourned the application to an oral hearing planned for the week beginning 28 September  — relatively soon, given that the civil courts hear only urgent cases in August and September. The two-day hearing is expected to take place in a physical courtroom rather than remotely, with three judges on the bench and all lawyers in court. It will be live-streamed without any need for viewers to register in advance.

This is how Hickinbottom explained his thinking:

Mr Justice Lewis’s judgment is impressive and cogent. Ultimately, it may well be found to have been correct. However the claim, and now this appeal, raise important issues. Not only did/do the challenged regulations impose possibly the most restrictive regime on the public life of persons and businesses ever — certainly outside times of war — but they potentially raise fundamental issues concerning the proper spheres for democratically accountable ministers of the government and judges. Furthermore, albeit not in the same form, substantial restrictions on public life remain in place and it is possible that further restrictions will be (re)imposed in the future. Therefore, I am persuaded that the grounds should be considered by the full court, in open court, and the applicants given an opportunity to make good their case, at least on arguability.

The appeal will be a “rolled-up” hearing, like the earlier hearing in the High Court. That means the court may consider the substantive application for judicial review if it decides to grant permission. They judges may even hear the substantive arguments without first announcing whether they will be granting permission to appeal or permission to apply for judicial review. They would simply listen to the arguments on both sides and then deliver a judgment at a later date dealing with permission and — assuming it is granted — the outcome of the challenge. Some aspects of Dolan’s challenge may succeed while others are dismissed.

The court could also grant permission to apply for judicial review and then send the case back for a hearing at the High Court. That would lead to further delay. On the other hand, it would give the losing party the opportunity of appealing to the Court of Appeal.

There could be a further appeal to the Supreme Court. That would delay the outcome even further. But if, as Hickinbottom suggests, Dolan’s claim raises “fundamental issues concerning the proper spheres for democratically accountable ministers of the government and judges”, it must be right that these issues should be considered at the highest level.

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