Daily Archives: September 21, 2020

A Grey Area: ‘J’accuse’…

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A letter dated 30th April 2020 from London lawyers Wedlake Bell to the Secretary of State for Health and Social Care (Matt Hancock MP) states that in the absence of a satisfactory response by 4pm on 7th May 2020 then judicial review proceedings will be taken by their client, Simon Dolan (a UK businessman) to direct that all Covid 19 restrictions are terminated, the letter does allow for the phased lifting of certain provisions if deemed appropriate.

The lawyers letter highlights the legal provisions which came into force on 26th April 2020 :

• Requires many premises to close with restrictions on the opening of others;

• Prevents any person from remaining outside the place where they live without a ‘reasonable excuse’;

• Restricts any gathering of more than two people outside the same household except under exceptions including that it is ‘essential’ for work purposes;

• Creates offences of failing to abide by regulations and provides for enforcement including fixed penalty notices and prosecution of offences;

• Provides that the Regulations expire six months after the date on which they came into force and are subject to review every 21 days. Parliament has no right to scrutinise the regulations until they expire in 6 months; the decision of the Secretary of State is absolute and can only be challenged through Judicial Review.

• The letter also notes “that the above measures are some of the most extreme restrictions imposed on fundamental freedoms in the modern era. They confine every person in England to their homes save for limited purposes permitted by the state. Parents may not see their children or grandparents their grandchildren. Worshipers may not attend their services or children their schools. Businesses must close, thousands of them will fail and millions of people will lose their jobs. And all political meetings and public demonstrations are, without exception, proscribed by law.”

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The legal action being taken accuses the government of the following:

• That the restrictions taken by the government are ultra vires of the powers provided to them by the Public Health (Control of Diseases) Act 1984. This Act has been relied upon by the government to provide them with the delegated powers to undertake the current restrictions. The action notes that this Act only applies to action by a public body against an individual or group of persons and NOT against the whole country and with restrictions on all but a defined class of businesses.

• That the government failed to consider the uncertainty of the scientific evidence on the effectiveness of the restrictions undertaken or the effect that these restrictions would have on public health, including deaths, particularly from untreated or undiscovered cancer, heart disease, mental health and incidences of domestic violence.

• That the government failed to consider the economic effect of the restrictions relative to the economic effect of other less restrictive measures to limit the spread of the virus; with predictions showing that the UK economy could be damaged by £800 billion in 10 years. Further impacting health and well being from poverty and unemployment and having a devastating impact on towns and cities following the closure of numerous small businesses.

• That the government failed to consider the medium and long-term consequences of the measures taken and that the imposed restrictions were not proportionate. • That the restrictions except for a limited period and subject to regular review that prevents gatherings of more than 100 people are against the European Convention on Human Rights and Fundamental Freedoms.

• That the five government tests that need to be satisfied before the restrictions are removed take no account of the other health and economic impacts that the current restrictions may or are having.

• That the restrictions were passed under the emergency powers provided by the Public Health (Control of Diseases) Act 1984 and that this requires that they are laid before and given positive resolutions before both Houses of Parliament within 28 days or they cease to have effect (this doesn’t include time that Parliament is prorogued, dissolved or adjourned). The action notes that this time of 28 days is excessive in relation to the action undertaken by the government and that other Acts removing civil liberties only allow for restrictions to be imposed for 30 days and require a positive resolution by Parliament within 7 days (including the time where Parliament is not sitting).

• Other issues noted within the action are: Disproportionate breach of Convention rights, deprivation of liberty (Article 5), impact on maintenance of family relationships (Article 8), right to worship (Article 9), restriction on political rights (Article 11) particularly given limited Parliamentary scrutiny, disproportionate discrimination given isolation on those with mental health issues, those suffering domestic violence, poorer and disabled children (Article 14), closure of businesses will reduce their goodwill (engages Article 1), denial of basic education of children (engaging Article 2 of Protocol 1)

• The letter also has questions over data and scientific evidence used to support the governments opinion along with the modelling of the spread undertaken. In particular, that evidence of modelling infection and mortality rates from new illnesses is notoriously uncertain; and that Prof Neil Ferguson, the epidemiologist whose paper was key to the government’s imposition of the regulations, himself predicted up to 138,000 deaths from human BSE a disease that has killed around 150 people to date; and who has also been criticised for his modelling of the foot and mouth crisis in 2001. Moreover, Carl Heneghan, director of the centre for evidence-based medicine at Oxford University, has suggested that the ‘peak’ of infections may have been as early as 18th March, days before the start of the ‘lockdown’.

• That the regulations were imposed: “as part of an express policy that not only fails to consider the potential effectiveness of less restrictive measures but which (through the First Secretary’s tests) expressly fails to balance the harms they may redress against the harms they cause. They impose unprecedented and exceptionally grave restrictions on every area of society and on almost all means of human interaction. And they are likely to devastate the livelihoods of millions and to cause great harm to individuals and to society”