The Legality Of Lockdown ' Do Coronavirus Restrictions Go Too Far?

• Published date: 23 February 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Trials & Appeals & Compensation, Human Rights, Government Measures
• Law Firm: Acuity Law
• Author: Mr Adam McGlynn

2020 was a year of rules and restrictions the likes of which no one could have anticipated. Since March, legislative responses to the Coronavirus pandemic have been issued on an almost daily basis, though still often struggling to keep up with Government announcements. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations) first brought into effect, on 26 March 2020, the broad restrictions of the UK's first national 'lockdown' which had been announced three days earlier.

The Regulations had a significant impact on civil liberties in that name of preventing the spread of COVID-19 including confining people to their homes, requiring businesses to close, and placing limitations on gatherings. Though the Regulations were subsequently repealed in July 2020, similar restrictions were consistently imposed by replacement legislation over the course of the year and are likely to continue, in one way or another, for the first half of 2021. But were the Regulations lawful? In December 2020, the Court of Appeal passed final judgement on this important constitutional question.

In May 2020, a judicial review was sought to evaluate the impact and appropriateness of the Regulations on the basis that they were unlawful on the following grounds:

1. The Regulations were ultra vires the Public Health (Control of Disease) Act 1984 (the Act);
2. The Regulations apply ordinary public law principles; and
3. The Regulations violate fundamental human rights guaranteed under the European Convention on Human Rights (ECHR).

The application was rejected by the High Court. However, the Court of Appeal decided to hear the application to appeal on the basis that it was in the public interest even though, by this point, the Regulations had already been repealed and the judgement would be largely academic.

Ultra Vires

The term ultra vires means to go beyond legal powers or authority. In this case, doubt was cast over whether the Secretary of State had been granted sufficient power by the Act to enact the Regulations as (1) the restrictions imposed were similar to those special restrictions which can be imposed by a justice of the peace; and (2) the Regulations applied nationally rather than to a more specific person or group of persons.

However, the Court of Appeal found that the express limitations within the Act, which the appellant relied on, were limitations of the restrictions which could be imposed by a justice of the peace. The Act, in fact, grants...