Reviewing lockdown rules: the legal view

The review of Scotland’s COVID-19 tiers was announced today and will take effect on Friday 11 December.

While this will be welcome news throughout the country, particularly for those currently placed in Tier 4, the decision on the appropriate tier for each local area is a complex one, which must be based on constantly evolving health data.

It is inevitable that the decision will not satisfy everyone in terms of the freedoms granted, particularly over this festive period, when many businesses will be relying on a seasonal boost in their revenues and individuals will be hoping to reconnect with families and loved ones.

Earlier this year, we examined the fairness of government decision-making in light of COVID-19 and how these decisions might be challenged. Decisions made by public bodies must continue to be procedurally correct, reasonable, proportionate, based on relevant considerations and free from errors of fact or law.

In England, where a month-long period of lockdown ended earlier this month, we have seen examples of local authorities challenging the UK Government’s decision on particular tiers, both in Parliamentary debate and by way of judicial review.

Stratford-on-Avon District Council recently sent a judicial review pre-action protocol letter to Health Secretary Matt Hancock regarding the placement of that area in Tier 3.

The grounds for this action appear to be based on claims that the decision is “arbitrary and irrational” based on the infection rate of that area. The effect of the restrictions on local businesses, particularly in the hospitality sector, has been described as devastating.

The English tier system is due to be reviewed again on 16 December, so it is entirely possible that Stratford-on-Avon could be downgraded to a lower tier before any judicial review gets off the ground.

The judicial review process can fail to keep pace with the speed of development in the COVID-19 space, and if a judicial review were to reach a substantive hearing, we would expect that the test for proportionality and reasonableness will be significantly impacted by the fact that public bodies are operating during a global health crisis.

That is borne out by recent case law such as Stephen Dolan & Ors v the Secretary of State for Health and Social Care & Athr, where businessman Mr Dolan claimed that the COVID-19 restrictions were outside the government’s powers and amounted to a disproportionate breach of human rights.

The High Court refused to grant permission for Mr Dolan’s challenge, and the judgement demonstrated a reluctance to find a decision irrational or disproportionate where it was “intended to reduce the risk of transmission”, even where there are anomalies in the Regulation. It is easy to see how this principle could be applied to a decision to place a local area in a certain tier.

Further to today’s announcement, some political leaders in Scotland have already criticised the banding in certain areas.

It remains to be seen whether judicial review will be used in Scotland to formalise these challenges, but what is clear is that judicial review can be a useful tool in shining a light on public decision-making.