Businessman loses Court of Appeal challenge over Covid-19 rules

Simon Dolan was pursuing a claim against Health Secretary Matt Hancock and Education Secretary Gavin Williamson over the restrictions, arguing the regulations – aimed at slowing the spread of coronavirus – were among “the most onerous restrictions to personal liberty” in almost four centuries.

He took his case to the Court of Appeal after a High Court judge refused permission for a full hearing of his challenge in July.

But in a ruling published on Tuesday, Lord Chief Justice Lord Burnett, sitting with Lady Justice King and Lord Justice Singh, dismissed his challenge.

In a statement Mr Dolan, who brought his case with another individual, said he plans to continue his legal action, saying the “last chance to challenge these destructive measures may now rest with an appeal to the Supreme Court”.

Mr Dolan, who according to the Sunday Times Rich List is worth £200 million, argued the restrictions, first published in March, were unlawful because they were outside the Government’s powers under public health legislation and a “disproportionate breach” of human rights laws

He also claimed the Health Secretary “failed to take relevant considerations into account” and “acted irrationally and disproportionately”.

In their ruling, the three senior judges gave initial permission for a judicial review of Mr Dolan’s claim that the Government had acted beyond its powers under the Public Health Act 1984 in making the regulations.

But they then made a final ruling on this ground, dismissing it, saying the Health Secretary “did have the power to make the regulations under challenge”.

The ruling said: “We have come to the conclusion that, although permission to bring this claim for judicial review should be granted, in view of the public interest in the resolution of this important issue, the correct construction is that the Secretary of State did have power to make the regulations under the 1984 Act, as amended in 2008.”

The court refused permission outright for Mr Dolan to bring his challenge on other grounds, including that the regulations were a breach of the Human Rights Act, saying “those grounds are now academic, because the regulations under challenge have been repealed and, in any event, they are not properly arguable”.

At the October hearing Philip Havers QC, barrister for Mr Dolan, said lockdown regulations announced by Prime Minister Boris Johnson in March “introduced restrictions on the freedoms of the people in this country never seen before in times of peace or war”.

In documents before the court, Mr Havers said Mr Dolan’s claim “involves a wholesale challenge to some of the most onerous restrictions to personal liberty” imposed since the time of Oliver Cromwell and the English Protectorate in the mid-1600s, “if not ever”.

The hearing took place shortly before a second national lockdown was announced in England, with a tier system in place at the time.

Mr Havers told the judges it was not an academic exercise for the court to hear a challenge to the original lockdown rules, which were repealed in July and replaced with new regulations.

Mr Dolan brought his challenge over “the imposition and continuing application of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 in their original and amended forms”.

Sir James Eadie QC, barrister for the Government, had told the court Mr Dolan’s challenge was “a root-and-branch attack on the measures (that is, all of the measures over time) at the heart of the legislative steps taken in relation to the Covid-19 pandemic to protect the public and to seek to save lives by ensuring social distancing”.

He said Mr Dolan’s case should be dismissed, saying it is “unarguable”.

In his statement after the ruling, Mr Dolan, who is a British citizen but lives in Monaco, said: “I took up this legal battle because, since March, the Government has seized power and control over people’s lives in a manner which has never been seen before, even in wartime. They have done this using emergency powers (in the 1984 Act) and have sought to justify the ‘emergency’ with spurious data and discredited modelling.

“The regulations were imposed without prior scrutiny by Parliament. They were signed into law by ministers guided by unelected scientific ‘experts’, many of whom are on the state’s payroll.

“Any vote by Parliament was just a rubber-stamping exercise. We find ourselves in a situation where we no longer live in a functioning democracy.

“Our only recourse was to challenge the lockdown by way of judicial review. If Parliament did not examine the lockdown and the courts will not review what the Government has done, then who is holding ministers to account? We are living in a country where the Government can do whatever it wants.

“Given the continued acquiescence of MPs and peers to the making of the lockdown laws, our last chance to challenge these destructive measures may now rest with an appeal to the Supreme Court.

“This is not a one-man crusade. It is on behalf of the families and businesses across the UK whose lives have been wrecked by lockdown policies which were implemented in haste without proper consideration.

“Our legal challenge has become one of the largest crowdfunded cases in UK legal history. We have raised over £410,000 from almost 14,000 pledges.

“This fight is on behalf of all of those people.”