Dolan and Others, Regina (on The Application of) v Secretary of State for Health and Social Care and Another: CA 1 Dec 2020

Lockdown Measures not Ultra Vires the 1984 Act

The appellants, a businessman, and mother, appealed from refusal of leave to challenge regulations made in response to the Covid-19 pandemic on 26 March 2020 and since which introduced what was commonly known as a ‘lockdown’ in England. They submitted that the regulations imposed sweeping restrictions on civil liberties which were unprecedented and were unlawful on three grounds.
Held: The challenge failed: ‘the purpose of the amendments that were made in 2008 clearly included giving the relevant Minister the ability to make an effective public health response to a widespread epidemic such as the one that SARS might have caused and which [coronavirus] has now caused.’ None of the grounds suggested by the claimants were arguable, and the review was rejected.
The regulations themselves had now been repealed and others were in place, so the request was technically academic.
The powers taken were not ultra vires the Act. The Section of the 1984 Act gave wide powers to the Secretary of State to make regulations for the purposes of ‘preventing, protecting against, controlling or providing a public health response to the incidence or spread of infections or contamination’. That power was not to be limited by more particular provisions of subsections (3) and (4).
The court took the opportunity to comment about practice in judicial review cases, deprecating the developing practice of ‘rolling’ approaches to JR which upon appeal from rejection of a request for judicial review, sought amendments to add further elements to the request. This was particularly inappropriate where Statutory instruments were themselves fast evolving. Further, claimants now seemingly failed to comply with the Guide in restricting the complexity and prolixity of pleadings, and the Rules Committee should look at whether they needed to be strengthened.


Lord Burnett of Maldon CJ, King LJ and Singh LJ


[2020] EWCA Civ 1605, [2020] WLR(D) 654, (2021) 177 BMLR 35, [2021] 1 WLR 2326, [2021] 1 All ER 780


Bailii, WLRD


Public Health (Control of Disease) Act 1984 45C, Health Protection (Coronavirus, Restrictions)(England) Regulations 2020, Administrative Court Judicial Review Guide 2020


England and Wales


AppliedRegina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
Appeal fromDolan and Others v Secretary of State for Health and Social Care and Another Admn 6-Jul-2020
Challenge to closures of schools and other provisions taken under the Regulations.
Held: The Secretary of State had the legal power to make the Regulations. In making and maintaining the Regulations, he had not fettered his discretion. He had . .
CitedGuzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
CitedSecretary of State for the Home Department v JJ and others HL 31-Oct-2007
The Home Secretary appealed against a finding that a non-derogating control order was unlawful in that, in restricting the subject to an 18 hour curfew and otherwise severely limiting his social contacts, the order amounted to such a deprivation of . .
CitedDirector of Public Prosecutions v Ziegle and Others Admn 22-Jan-2019
Appeals by case stated from failures at trials of charges of obstructing the public highway in the course of protests at the opening of a Defence and Security fair.
Held: The DPP’s appeals were granted for the first four defendants but . .

Cited by:

AppliedLeigh and Others v Commissioner of The Police of The Metropolis and Another Admn 12-Mar-2021
No declaration to require police to allow vigil
The claimants requested an interim declaration so as to allow them to hold a peaceful vigil on Clapham Common in memory of the late Sarah Everard. They challenged the failure of the respondent to permit it as an exercise of their human rights.
CitedRowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. The parties agreed that the steps taken for later broadcasts had satisfied the . .
CitedGardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Administrative, Health, Human Rights, Judicial Review

Updated: 28 April 2022; Ref: scu.656501