Thread by @JoshuaRozenberg

I hope to live-tweet some of the lockdown regulations challenge hearing that starts at 1030. Claimants include Simon Dolan, a businessman. Defendants include Matt Hancock, health secretary. Claimant’s counsel is Philip Havers QC. Defendant’s counsel is Sir James Eadie QC.

Claimants apply for permission to judicially review the lawfulness of the coronavirus regulations and guidance that have caused the closure of schools for the vast
majority of children in England and which continue to deprive the great majority of children of
an education.

Sir James Eadie QC for the health secretary will argue that permission should be refused.

The hearing is scheduled to last for no more than one day.

The hearing is not being live-streamed on a public website but reporters and others can seek access. This hearing is using Skype for Business.

Philip Havers QC for Simon Dolan opens with his application for permission to challenge this “far-reaching and sweeping invasion of rights”. He notes that the restrictions have been modified and will change again on 4 July (although the new regs are not yet published).

Havers denies that the application is now academic. There are still restrictions in force and they may be reimposed. Mr Justice Lewis says it’s not productive to speculate on what may happen in the future. He asks Havers to go through each regulation he wishes to challenge.

As far as I can tell, today’s hearing is concerned only with permission. If that’s granted, there will be a further hearing at a later date. There’s no suggestion that this is a “rolled-up hearing” — permission and merits in the same hearing. These can save time in urgent cases.

Havers QC is quoting figures to show the chances of a child with no pre-existing medical conditions dying of Covid are “vanishingly small”. Lewis J asks about parents and grandparents. Havers: vast majority of children can safely return to school. Lewis J: they’d travel on buses

Havers QC is now dealing with the minister’s power to make the coronavirus regulations. He says they were “ultra vires” — beyond the powers granted by parliament in the Public Health (Control of Diseases) Act 1984, section 45C. [Vires is not to be confused with virus].

I think it’s fair to say that Mr Justice Lewis is actively managing the hearing; one might even say he’s handling the case robustly. By that I mean he’s challenging Havers QC to justify all his assertions.

Havers QC has persuaded Lewis J to look at speeches by the prime minister and health secretary saying they would be prepared to reimpose the lockdown if necessary. This, says Havers, amounts to fettering the minister’s discretion [taking a decision before knowing the facts].

Havers QC (from written submissions): “The restrictions may only be proportionate if the positive effect of their imposition on the coronavirus relative to less restrictive measures (if any) is not outweighed by the harms
they might cause…”

Havers says he is challenging the original “stay home” deprivation of liberty — which he describes as “house arrest” — as he says that might be reintroduced. He is also challenging the current regulations, which he describes as a “curfew”. Article 5 ECHR grants right to liberty.

Havers QC moves on to article 8 ECHR (family life). There are still extensive restrictions, he says, on seeing family members other than those you live with. Lewis J: you can see five people outdoors. Havers: yes, but they can’t stay overnight and that’s disproportionate.

Havers QC: if people live a long way away, they can’t visit if they are not allowed to stay overnight. Lewis J: the two named claimants are not in that position. Havers: you should deal with the claim more broadly and not confine it to these claimants.

Havers QC moves to article 9 (freedom of religion). One of the claimants has been unable to attend church. Case adjourned until 1200.

Havers QC moves on to article 11 ECHR (freedom of assembly). He notes that protestors were recently allowed to gather. That shows the restrictions are no longer proportionate, if they ever were. Article 1 of Protocol 1 protects property but businesses have suffered economic harm.

Havers QC moves to article 2 of protocol 1 ECHR: “no person shall be denied the right to education.” He says many schools are
providing minimal, if any, education and that this disproportionately affects poorer
children of less well-educated parents and children with disabilities

Lewis J asks Havers QC what power has been exercised by the education secretary that interferes with children’s right to education. Havers says it may be guidance, not a regulation. Lewis J asks for evidence of this.

Lewis J: what if parents are frightened of sending children to school. Could that be a breach by the government? Havers QC: other parents want their children to go back. The government should now request schools to reopen. Lewis J: where’s the breach of the Human Rights Act?

Lewis J: what remedy do you seek? Havers QC: to direct all schools to reopen. Lewis J: do ministers have that power? Havers QC: they must have. Lewis J: where is the minister’s restriction to be found? Havers QC: there was guidance to close. It remains in place, at least in part

Havers moves on to the proportionality of the government’s interferences with these human rights. Are they a proportionate response to the Covid crisis? [At this point, his internet connection briefly freezes. The judge jokes about children pulling out router cables].

Havers QC says the complete lockdown was — and the current less extensive lockdown is — not the least restrictive way of achieving its purpose. The government should have targeted vulnerable people rather than imposing a blanket ban. He bases this on four grounds.

Havers says his grounds for saying the lockdown was disproportionate are:
1. Fall in infections and deaths.
2. Need to protect lives of other patients, eg cancer sufferers.
3. Ongoing harm to business and the economy.
4. Children are unlikely to die of Covid.

Adjourned to 1400.

The coronavirus lockdown court challenge is about to resume. For those interested in the background, here’s a piece I wrote in May: transformingsociety.co.uk/2020/05/26/are…

Sir James Eadie QC for the government says “there is no basis for — and can be no point in — challenging any regulations other than the current” ones. [In other words, expired regulations and possible future regulations are academic]. Lewis J does not challenge him on this.

Eadie QC turns to delay. Challenges to regulations of this sort need to be brought very promptly because events move on relatively swiftly, he says. But @simondolan did not bring his challenge until 25 May, almost eight weeks after the original regulations came into force.

Eadie QC: this claim is not in any of its parts an arguable one. The scale of the hurdle [to be surmounted by the claimants] is very high, whatever legal platform they rely on.

Eadie QC: The fact the government has amended the regulations to reflect gradual easing of the restrictions on the basis of the scientific advice available at the particular time does not support a case that the initial restrictions were unnecessary or not proportionate

Eadie QC is now analysing the legislation to argue that it did indeed grant the minister the power to make the regulations.

Turning to the claim that the government had fettered its discretion by narrowing the scope of its decision-making, Eadie QC cites a strategy document to show that ministers took account of all the circumstances. Again, no interruption from the judge. Eadie is rattling through it

Eadie QC dismisses the argument from Havers QC that nursery children are not at measurable risk and so the regulations are disproportionate: “it’s an unattractive argument to say that only a few children will die”.

Turning to the human rights arguments, Eadie QC says there was no deprivation of liberty given the available exceptions.

Turning to the private life (article 8 ECHR) challenge, Eadie QC says the rules have been eased several times. Lewis J: and you have modern methods of communication [he means eg Skype]. Eadie QC: so no “interference” with the right for family life. If there is, it’s proportionate

What about Hussain, R (on the application of) v Secretary of State for Health & Social Care [2020] EWHC 1392 (Admin) (21 May 2020) asks Lewis J. That claimant was granted a hearing. Eadie says the law has moved on since then.

Lewis J hints that he may be handing down a short judgment later today [with full reasons to follow]. This will be on the question of whether @simondolan has permission to bring his claim. If permission is refused I think he can try again — but maybe a JR lawyer can confirm.

@simondolan Moving on to schools, Eadie QC says the education secretary has not directed school closures. On 18 March he had no power to close schools. Lewis J: why did he say it then? Eadie QC: he said we’re “asking” schools to close (subject to exceptions).

Eadie QC: the secretary of state was given the power to close schools on 25 March but this power has not been exercised. School sites continued to be used for vulnerable children and children of key workers. Lewis J: could a head teacher reopen? Eadie: Yes. But law could change.

Eadie: schools are being encouraged to reopen in September. There’s nothing in law to stop that happening. Lewis J: the regulations expire on 26 September.

Eadie QC says the court should not shrink from addressing the issues of proportionality and rationality at this early (permission) stage. He encourages Lewis J not to follow Swift J, who granted permission in the case I named earlier. He concludes his submissions. Havers replies.

Havers QC says it’s in the public interest for permission to be granted because the lockdown regulations were introduced without prior parliamentary scrutiny. Lewis J: that’s not a matter for me. I have to apply the law. I can’t provide a public forum for people to express views.

Havers QC: there has been no delay in this case.

Havers QC: attractive as an argument or not, the government should take into consideration in balancing the risk the fact that no more than three children without pre-existing medical conditions have died from the virus.

Havers QC is reaching the end of his submissions but it sounds as if we shall not get a decision from Lewis J on permission immediately.

Havers QC: you can’t leave home overnight. It’s a curfew. Lewis J: No. You can leave home and walk around. The requirement is not to stay elsewhere. This is not a curfew. Havers QC: I won’t call it a curfew. But if you can’t stay at someone else’s home you have to stay at yours.

Lewis J says he’s now minded to issue a relatively short judgment early next week dealing in turn with each of the grounds of challenge to the regulations. He stresses he’s not yet decided whether to grant permission in all, some or none of the grounds: he’s not made up his mind.

Hearing ends. Judgment on permission to be published online early next week.

Just a reminder that if you’ve enjoyed my coverage today you’ll find much more of the same in my new book Enemies of the People? bristoluniversitypress.co.uk/enemies-of-the… And do ask questions at my free live webinar on judicial review next Wednesday at 4pm. Register here: mishcon.com/news/events/cu…