Joe Tomlinson, Jo Hynes, Jack Maxwell, and Emma Marshall: Judicial Review during the COVID-19 Pandemic (Part II)

In the first part of this post, we considered how judicial review has been operating in a time of social distancing, following the Administrative Court’s rapid shift from traditional hearings to remote hearings. This second part focuses on a related question: how are people using judicial review to challenge the Government’s response to COVID-19 itself?

Patterns in judicial review during the COVID-19 pandemic

Over the past month, we have tracked judicial reviews challenging the Government’s response to COVID-19. We have relied on judgments, media reports, and press releases from firms and practitioners. There is inevitably a degree of imprecision in this kind of tracking, but we can make some broad, tentative observations about the use of judicial review during this initial phase of the pandemic. Four points stand out as particularly significant.

First, there have been a significant number of judicial reviews related to COVID-19. We have recorded at least 63 challenges to different elements of the UK’s response to the pandemic. 49 of those challenges have challenged actions of the central government in Westminster. The remainder are divided between devolved governments, local authorities, and other public bodies, such as NHS trusts.

Second, these cases illustrate the growing importance of crowdfunding. At least 13 cases we have examined have been crowdfunded. These campaigns have had varying degrees of success. For example, businessman Simon Dolan’s challenge to the legality of the lockdown itself has raised over £140,000, while a challenge over the working conditions for Uber and other private hire drivers has raised just over £1,000.

Third, these proceedings have covered a wide range of policy areas. The biggest category is health and social care cases. These cases have challenged a mix of different government actions. Two individuals, represented by UCL’s Integrated Legal Advice Clinic, challenged guidance which wrongly suggested that statutory duties relating to children’s social care had changed. The Government subsequently agreed to correct the guidance. A mother, represented by Hodge, Jones & Allen, challenged guidance for NHS clinicians about which patients should be admitted to hospital and referred to critical care. She argued that the guidance discriminated against people with learning difficulties and mental disorders. The Government agreed to amend the guidance so that it would not be used for younger people, people with stable long-term disabilities, and in other inappropriate cases. A doctor, represented by Leigh Day, has challenged the Government’s refusal to release its report on Exercise Cygnus, a three-day pandemic simulation conducted in 2016. There have also been several challenges concerning personal protective equipment (PPE) for healthcare workers. Two other doctors have challenged the Government’s guidance on and failure to provide adequate PPE for healthcare worker. The Doctors’ Association UK has separately challenged the Government’s failure to conduct an urgent inquiry into this very problem.

The next most active area is immigration. These cases concern two main issues. The first is failures to provide people with support during the pandemic. A string of cases has challenged the Government’s failure to provide accommodation and support for destitute asylum seekers under the Immigration and Asylum Act 1999. Such people cannot travel or leave the UK due to the current restrictions on movement. In the absence of government support, they are often left facing the prospect of homelessness during a public health crisis. The second target is the detention of immigrants who are vulnerable to COVID-19. In late March, the High Court rejected a systemic challenge against ‘the on-going detention of all immigration detainees’, brought by Detention Action. Cases brought by individuals, however, have been successful. In April, Samson Bello, a Nigerian national at particular risk from COVID-19, challenged his continuing detention on the ground that it violated the Hardial Singh principles and contravened the Government’s own ‘Adults at Risk’ policy. Johnson J found that Mr Bello’s detention was unlawful and ordered his immediate release.

There have been at least six challenges to elements of the ‘lockdown’ itself. As mentioned above, Simon Dolan, a London businessman, has challenged the lawfulness of the lockdown, arguing that it is ultra vires the Public Health (Control of Diseases) Act 1984 and contrary to the European Convention on Human Rights (ECHR). Southall Black Sisters and the Public Interest Law Centre are seeking judicial review of the Government’s failure to provide emergency funding to accommodate survivors of domestic abuse during the lockdown.

The other key areas of activity include prisons and education. The prisons cases have generally been claims for the immediate release of vulnerable prisoners. The education cases have generally focused on the impact of school closures. In two cases, the Good Law Project is arguing that the Government has failed to take adequate steps to ensure that disadvantaged children do not fall behind while schools are closed.

There are two consistent themes across these different areas of law and policy. The first is the Government’s failure in certain areas to consider how its general responses to the pandemic may disproportionately affect particular people, and to tailor its responses according. In early April, for example, two families with children with autism successfully challenged the Government’s guidance which only permitted outdoor exercise once a day. After pre-action correspondence from the families’ lawyers, the Government amended its guidance to make clear that people with specific health conditions could exercise more than once a day and travel beyond their local area to do so. The second theme is the Government’s adherence to ‘business as usual’ in some areas, at the expense of those particularly vulnerable to the virus or its direct implications—seen with the issues raised in the Dentetion Action case.

Fourth, COVID-19 judicial reviews demonstrate how many cases are successfully resolved before they reach the courtroom or are even formally commenced. Many of the cases have found some success, and that success has often been at the pre-action stage, i.e. through correspondence between the parties and a concession from the Government. In this way, judicial review can be a quick, effective, and relatively cheap tool for problem-solving and improving decision-making. The pre-action protocol provides the opportunity for claimants and lawyers to point out significant problems, and for the Government to swiftly remedy them, without the delay and expense of a full hearing. In mid-March, for example, an NHS trust banned people from visiting its patients, due to the COVID-19 risk. One of its patients was a young man with autism and learning disabilities detained under the Mental Health Act 1983. The young man was uncomfortable using a telephone to speak to his parents, and they could not afford to buy him a smartphone or tablet. The parents challenged the Trust’s policy under Article 8 of the ECHR and the Equality Act 2010. Several days later, the Trust confirmed that it would provide the young man with iPad to video call with his parents, and amend its policy to reflect its positive duty to facilitate communication between patients and their relatives. On the same day, NHS England amended its visitor guidance, to permit people to visit their children or those they are supporting with a mental health issue, a learning disability or autism.

Conclusion

There has already been, and will no doubt continue to be, extensive commentary on the role of judicial review during the COVID-19 pandemic. Analysis must focus not only on a few notable cases or issues, but also on the response of the judicial review system as a whole. It must consider both how judicial review procedures have adapted to these times, and how people have used judicial review when government has assumed extensive powers. Analysed from this perspective, this disruption in the course of modern judicial review may do more than merely provide fodder for contemporary anxieties about judicial power in the UK. It may instead provide the impetus for a more sophisticated debate about the role of public law and judicial review in the maintenance of a healthy body politic in the 2020s and beyond.

Dr Joe Tomlinson is Senior Lecturer in Public Law, University of York and Research Director at the Public Law Project.

Jo Hynes is ESRC Research Fellow at the Public Law Project and a Ph.D Candidate at the University of Exeter.

Jack Maxwell is Research Fellow in Public Law and Technology at the Public Law Project.

Emma Marshall is Research Fellow at the Public Law Project and a Ph.D Candidate at the University of Exeter.