Judicial Review

July 9th, 2020

 

From time to time the basic position in relation to Judicial Review requires to be restated. R (Dolan) v SoS (2020) EWHC 1786 (Admin), was such an occasion. This was a challenge to Coronavirus Restrictions Regulations pursuant to the Public Health ( Control of Diseases) Act 1984.

Lewis J said, at paragraphs 6/7 : –

(1) Judicial Review is the means of ensuring that public bodies act (I) within the limits of their legal powers and (ii) in accordance with the legal principles governing the exercise of their decision-making powers;

(2) The Judicial Review Court is concerned to ensure that a public body is acting (I) within the law and (ii) in a way which does not violate an ECHR right;

(3) The role of the Court in Judicial Review is concerned with resolving questions of law;

(4) The Court is not responsible for making (I) political, (ii) social, or (iii) economic choices.

Nonetheless, as in this case, a host of points may be made, none of which however were found to be arguable, namely whether : –

(1) The Regulations were ultra vires as being outside the powers conferred by Parliament;

(2) Whether the Defendant acted unlawfully, by (I) fettering discretion, (ii) failing to take account of relevant considerations, (iii) acting irrationally, and/or (iv) failing to act proportionately, as required by the 1984 Act;

(3) The Regulations breached ECHR Articles 5, 8, 9 and 11, and/or Protocol Articles.

On Article 5, the right to liberty and security, Lewis J confirmed, at paragraph 72, that the scope of what constitutes a Deprivation of Liberty for the purposes of Article 5 is different from, and more limited than, the scope of detention for the purposes of the tort of false imprisonment.

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