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This week the UK entered it’s seventh week of lockdown. Businesses remain shut, schools are closed and the citizens of the UK are living under extremely restrictive measures. A review of the lockdown measures is due by Thursday 7 May. Three days later, Prime Minister Boris Johnson is also due to reveal a provisional exit plan on Sunday 10 May.
So far, Ministers have resisted calls to unveil their exit strategy. They claimed that this would undermine the “Stay at home, Protect the NHS, Save Lives” message that has been drilled into the public since 23 March.
A lack of transparency and Orwellian measures from the government have caused widespread frustration and disenchantment. Now, one UK Entrepreneur is seeking a judicial review over the lockdown. Supported by £64,796 from 1,980 pledges, he seeks to hold the government accountable for the devastating economic impact of the lockdown, and fight for citizens’ freedoms.
Represented by Michael Gardner of law firm Wedlake Bell LLP and Barrister Francis Hoar of Field Court Chambers, Simon Dolan, Owner of Jota Aviation has sent a “letter before action” to Health Secretary Matt Hancock.
In his letter, Mr Dolan calls for a series of key changes to be made. These changes seek to alleviate the restrictions placed on citizens’ freedoms and lift the freeze on the UK’s economy. This includes reopening schools, reintroducing gatherings of up to 100 people, and reviewing lockdown measures every two weeks. The letter also requests that the government disclose minutes of the meetings of the Scientific Advisory Group for Emergencies (‘SAGE’) since the beginning of 2020.
Speaking about the importance of these changes being implemented, and the lockdown being lifted, Mr Dolan said: “Too many people are losing their jobs; people can’t get cancer treatment, there is suicide, domestic violence. Why are we prevaricating? It’s like the government is now keeping this going to justify their original decision, whereas what they should do is say we did this and now we are doing something different”.
Expanding upon this, in an article written for The Independent, Mr Dolan noted that during lockdown, referrals for cancer screenings have dropped by 76%. Research by University College London predicts that this could cause up to 18,000 deaths. Meanwhile, referring to the horrific living conditions some people are having to endure during lockdown, he highlighted that domestic abuse helplines have seen a 49% rise in calls.
Speaking about the damaging impact of the lockdown, Mr Dolan said: “Every day that the lockdown continues it is paralysing the country, wrecking the economy and causing long term damage”.
If the Secretary of State does not respond to this letter by 4pm Thursday 7 May, Mr Dolan will issue proceedings.
Mr Dolan’s lawyers make the case that the government’s lockdown measures are “ultra vires” or outside of legal authority. This challenge is based on the fact that regulations have been implemented under the Public Health Act 1984, rather than the Civil Contingencies Act 2004 or the Coronavirus Act 2020.
The letter also states that the measures introduced on 23 March are disproportionate. It says that the proportionality of the restrictions should be measured through the Siracusa Principles. These principles state that at a minimum, restrictions should be:
Consequently, Mr Dolan and his lawyers label the regulations as “extreme,” affecting every area of national life. Further to this, the letter states that such regulations could only be proportional, if the “positive effect” of their imposition on COVID-19 relative to “less restrictive measures” did not outweigh the harms they might cause. However, it is outlined that this determination could only be made, if “adequate consideration” of its impacts had been made. This includes the consideration of the effect of the restrictions on public health, including mental health and the incidence of domestic violence. It also lists consideration of the economic effect of the restrictions.
As a result, Mr Dolan and his lawyers say that the government “fettered its discretion,” by using an “over-rigid” test to determine when lockdown measures could be lifted. The letter states that this test only considers its effect on containing the virus, without factoring in the wider implications of the restrictions.
Mr Dolan and his lawyers also argue that the government’s lockdown measures have disproportionately breached the European Convention on Human Rights. Specifically, the letter states that Article 5 of the Convention is violated by the measures. This is due to the fact that confining an individual to their home counts as deprivation of liberty.
Further to this, the letter explains that “each cardinal freedom” which is protected under Article 8 is engaged, as citizens are prevented from maintaining relationships with family and friends. The restrictions enforced through lockdown also interfere with Article 11, the political right of association and assembly. Meanwhile, the closure of schools and some children’s lack of access to online educational resources, engages Article 2 of Protocol 1, having been denied the “basic minimum of education”.
Relating to businesses and the economy, the letter also states that lockdown measures engage Article 1, Protocol 1 to the Convention, through detrimentally affecting the goodwill of business. On top of this, it also outlines that through the isolation required by the regulations, Article 14 is engaged. This is because it is indirectly discriminatory against those with mental illnesses, women (who are disproportionately affected by domestic violence), and poorer and disabled children who have suffered from the withdrawal of educational services.
On his CrowdJustice page, Mr Dolan said: “What we wish to achieve in bringing this case, is simply the freedom of individuals – the freedom to visit friends, freedom to earn a living, to socialise, in essence, the freedom of choice. That, of course, includes the freedom to stay inside – should you choose”. The Department of Health and Social Care is yet to respond.
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