Dolan & Ors, R (On the Application Of) v Secretary of State for Health And Social Care & Anor

Facts

In March 2020 the Secretary of State made regulations under the Public Health (Control of Disease) Act 1984 in response to the coronavirus pandemic. They closed businesses, restricted movement outside the home without reasonable excuse and restricted gatherings. The claimants, including a businessman, challenged the lawfulness of the regulations as beyond the powers conferred by the Act and on other grounds.

History

The High Court refused permission to bring the claim for judicial review. The Court of Appeal considered the claim, and granted permission but rejected the grounds on the merits.

Issue

Whether the powers in the 1984 Act, in particular those added in 2008, were wide enough to authorise the regulations, or whether the principle of legality, which requires clear words to override fundamental rights, meant that a lockdown of this kind could not be introduced under those powers.

Held

Appeal dismissed. The regulations were within the powers conferred by the 1984 Act and the challenge failed.

Ratio

• The 1984 Act, as amended, contains powers to impose restrictions and requirements on persons, to restrict movement and to close premises or prohibit gatherings in order to deal with a threat to public health, and those powers are broad enough to include the measures in the regulations.
• The principle of legality applies only where the statute is ambiguous, and it does not require the court to read clear and wide statutory words restrictively merely because they allow interference with basic rights; here Parliament had used express and general language.
• It was therefore not necessary for the Secretary of State to rely on the Civil Contingencies Act 2004 instead of the powers in the public health legislation.

Key reasoning

• The statutory language, read in its context and with the purpose of the 2008 amendments, extends to restrictions on the movement of persons and to the closure of premises, and provides that the measures may apply to groups or to the public.
• The principle of legality is a tool to resolve ambiguity, and does not permit the court to ignore clear parliamentary language; the possibility that the powers could be used in an extreme way did not make them unclear.
• The existence of the Civil Contingencies Act 2004 did not displace the more specific public health powers, since Parliament had provided both regimes to be used according to the circumstances.

Where it fits in the module

This case sits in the Constitutional Law debate about the principle of legality and the strength of fundamental rights at common law. It tests whether courts will restrict general statutory powers by reference to fundamental rights, and how that relates to the supremacy of Parliament and the role of delegated legislation in a national emergency.

Criticisms

• The decision reads a power added for public health protection as authorising a nationwide restriction on liberty, which is arguably a use of the power that Parliament did not foresee, and so a stretch of the principle of legality.
• Limiting the principle of legality to cases of ambiguity weakens its role as a constitutional safeguard, since broad general words are the situation in which rights are most at risk.
• The regulations were made without prior parliamentary approval under an urgent procedure, so reading the power widely places a significant constitutional restriction in the hands of the executive with limited scrutiny.