In a pre-COVID-19 world, public authorities routinely made decisions touching the everyday lives of ordinary citizens. However, the impact of the pandemic has led to authorities being forced to make decisions in unprecedented and demanding circumstances.
Many of the decisions made by public authorities in response to the pandemic have been well received, for example, the rapid construction of the NHS Louisa Jordan hospital in Glasgow to treat COVID-19 patients. However, a spate of applications for judicial review in England has highlighted that, regardless of the context in which administrative decisions are made, they may still be subject to rigorous examination by the courts.
In Dolan & Ors v Secretary of State for Health and Social Care and Athr, the legality of the 'lockdown' in England was challenged, with Stephen Dolan, a UK business owner and Lauren Monks, an employee of Mr Dolan, arguing that the regulations imposed were outside the powers conferred by the Public Health (Control of Diseases) Act 1984 and contrary to the European Convention on Human Rights. In rejecting the claim, the High Court referred to the "possibly unique circumstances" faced by ministers.
A separate judicial review was brought by the charity article 39 (now being appealed), challenging what was described as the Department of Education's removal and dilution of children's protections in care in England during the pandemic. The High Court accepted that while those safeguards are vital to children's protection, the Department of Education had not acted unlawfully.
The most recent judicial review raised in England seeks to challenge the UK Government for its alleged failure to comply with its duty under regulation 50 of the Public Contracts Regulations 2015 and Government policy to publish, within 30 days, contract award notices connected to COVID-19 in respect of contracts for goods and services worth over £10000.
Other challenges successfully resolved before the raising of formal court proceedings have included challenges to:
- COVID-19 guidance for NHS clinicians in England about which patients should be admitted to hospital and referred to critical care;
- the UK Government's leaving home guidance for those with special health needs;
- an NHS Trust's COVID-19 visits policy;
- and most recently, the challenge to Ofqual and the withdrawal of its algorithm adapted in response to the pandemic.
Meanwhile, several judicial reviews awaiting decisions include:
- challenges to procurement of personal protective equipment;
- the UK Government's refusal to launch an inquiry into failures to provide adequate personal protective equipment for frontline workers; and
- the strategy of UK Government, NHS England and Public Health England in relation to the release of hospital patients into care homes without COVID-19 tests.
In Scotland, in the case of Sharp v Scottish Ministers, Jon Sharp, the owner of six Edinburgh coffee shops, brought judicial review proceedings, challenging the policy of Scottish Ministers to restrict grant funding in certain circumstances paid to businesses operating in the retail, hospitality and leisure sector, but temporarily closed due to the pandemic. Mr Sharp received £107 500, including a grant of £25000, and after a 25% reduction to the remaining five grants, four grants of £18750 and one grant of £7500. Had Mr Sharp's coffee shops been in England, he would have received a full 100% grant for all six properties. Relying upon statements made by the UK Chancellor of Exchequer on 17 March 2020 and by Cabinet Secretaries at a meeting of the Scottish Parliament on 18 March 2020, Mr Sharp claimed he had a legitimate expectation that a full 100% grant would be paid in respect of all six coffee shops. The Court of Session refused the petition for judicial review, stating that Mr Sharp did not have such legitimate expectation: at best, the Chancellor's statement was ambiguous on whether the issue of the proposed grant support described by him was per business or per property. Although Mr Sharp's challenge was unsuccessful, it serves as a timely reminder that public authorities in Scotland are not immune from judicial scrutiny during COVID-19.
The number of judicial reviews challenging COVID-19 decisions demonstrates the need for public authorities to be as vigilant as ever in their decision-making and that, despite an ongoing pandemic, judicial review of administrative decision making remains as alive as ever.