Businessman refused permission to challenge lawfulness of lockdown

The case for unlawfulness

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:

• Firstly, because the decision went beyond the powers conferred to the government by Parliament.
• Secondly, because the Secretary of State failed to have regard to relevant considerations, had fettered his discretion and had acted irrationally or disproportionately. In arguing this point, Mr Dolan relied on the low mortality rate in individuals without pre-existing medical conditions who are under 60 years of age, and the government’s failure to take into account the negative effect on health arising from other conditions which were not treated during the pandemic (as all available resources were allocated to combatting the Coronavirus).
• Thirdly, because the restrictions are contrary to the European Convention on Human Rights (ECHR). Mr Dolan’s arguments here focussed on the restrictions on liberty, the ability to see family, the right to use places of worship and the right to freely associate with others.

Permission refused

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.