Challenging the fairness of government decision-making in light of COVID-19

Judicial review is an essential component of our democracy, as it enables us to hold the government and other public bodies to account.

All decisions of public bodies must fall within the scope of their powers and be procedurally correct, reasonable, proportionate, based on relevant considerations and free from errors of fact or law.

They must not be incompatible with Convention rights or the legitimate expectations of the public. In essence, the decision must be ‘fair’.

Policy-making in a pandemic

In response to coronavirus, a swathe of legislative and policy changes were pushed through in an effort to protect public safety while allowing the country to continue to function as best it could.

Despite the highly pressurised environment in which public bodies made these decisions, they are still subject to the same standards as specified above.

At their most serious, government decisions over the past three months could have had life or death consequences for its citizens. At their least serious, they will certainly have had some impact on our personal freedoms.

Given the scale of the impact of these decisions, the legality and fairness of public decision-making has never been more important.

This is borne out by the level of public scrutiny observed to date.  At the time of writing, at least 10 actions for judicial review are either active or anticipated across the UK. These relate to issues such as PPE guidance, free school meals, care home policy, business grant funding, and the economic impact of the lockdown measures.

Airlines’ policy challenge takes off

One of the most high-profile judicial reviews relating to COVID-19 is that launched by easyJet, Ryanair and British Airways. The three airlines teamed up to challenge the government’s 14 day self-isolation rule for passengers arriving in the UK. They criticized the policy for its effect on the British tourism industry, the lack of supporting scientific evidence and the absence of consultation.

The airlines argued that a more appropriate policy would be to impose self-isolation only for those returning from ‘high risk’ countries. The hearing took place on 3 and 6 June at the High Court in England and the decision is awaited.

Since the challenge was lodged, the UK Government amended its travel policy, meaning that those arriving in England from one of 59 ‘lower risk’ countries would no longer be required to self-isolate. This is notably similar to the policy mooted by the three airlines, so we expect that they, and the wider tourism industry, will be relieved by this change regardless of the outcome of the judicial review.

Judicious judicial reviews

COVID-19 is a public health emergency and the courts will look through this lens when determining the lawfulness of a decision challenged by way of judicial review.

Decisions which would not have been reasonable or proportionate in a ‘business as usual’ world might be deemed appropriate in these extraordinary circumstances.

However, the bigger picture shows that properly timed judicial review in and of itself might be a mechanism to drive policy change.

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