In Dolan & Ors v Secretary of State for Health and Social Care and Anor, the court recently refused a businessman permission to challenge the legality of lockdown via Judicial Review. Here, Andrew Mazeika sums up the arguments on both sides, and considers whether future challenges are likely to receive the same judgement.
The case was brought forward by Mr Simon Dolan, a Monaco-based business tycoon whose business interests in the UK have been adversely affected by the national lockdown, which has dragged through most of the summer. Mr Dolan, along with many other business owners, believes that the government’s imposition of a mandatory lockdown was unlawful for three reasons:
The case was not granted permission to proceed to a full Judicial Review. In a very robust judgment, Mr Justice Lewis held that the lockdown was lawful as it sought to achieve a legitimate aim (reduction of the ‘R’ rate), that there was no illegality in the process by which the Secretary of State imposed lockdown, and that there was ‘no realistic prospect’ of a court deciding that the restrictions were a disproportionate interference with the rights and freedoms guaranteed by the ECHR.
However, whether a similar stance will be adopted in respect of every challenge relating to lockdown is uncertain, with high-profile commentators on both sides of the line. Former Supreme Court Justice Lord Sumption is an advocate for a less robust response, relying on data which shows that the majority of fatalities arise from people with pre-existing physical vulnerabilities, such people being able to choose to self-isolate to avoid exposure. In his view “There may well be a case for prudent self-isolation, but there is no case for coercion”.
The case has attracted huge public interest and, indeed, investment – raising a £200,000 war-chest via crowdfunding. It’s unlikely to be the last chapter in lockdown litigation as policy change is implemented in unchartered territory and at an unprecedented pace.