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The Prime Minister
10 Downing Street
London
SW1A 2AA
And the
Secretary of State Health & Social Care
39 Victoria Street
London
SW1H 0EL
Sat, 25 Apr at 20:04
Dear Sirs
English Democrats (1) Robin Tilbrook (2) – v – The Prime Minister and the Secretary of State Health and Social Care
Letter Before Claim
This letter is drafted under the judicial review protocol in section C of the White Book, which normally provides for a response within 14 days, but in view of the importance and urgency of the issues raised a response within 7 days is sought.
1. Respondents: The Prime Minister and the Secretary of State Health and Social Care
2. Applicants: The English Democrats (Reg. No. 6132268) & Robin Tilbrook both of Quires Green, Willingale, Ongar, Essex, CM5 0QP
3. The details of the Applicant’s legal advisers, if any, dealing with this claim:-
Tilbrook’s Solicitors, of Quires Green, Willingale, Ongar, Essex, CM5 0QP
4. The details of the matters being challenged:-
The disproportionate inference with English rights and freedoms and the legality of:-
I Statutory Instrument: 2020 No. 350
Public Health, England
The Health Protection (Coronavirus, Restrictions) (England)
Regulations 2020
Made at 1.00 p.m. on 26th March 2020
Laid before Parliament at 2.30 p.m. on 26th March 2020
Coming into force at 1.00 pm. on 26th March 2020
The Secretary of State purported to make Regulations in exercise of the powers conferred by sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984(1).
These Regulations are:-
1. Contrary to the fundamental constitution of England as set out in Magna Carta and the English Parliamentary Constitutional Convention Declaration of Right of 1689 and its subsequent enactment in the English Bill of Rights 1689.
2. Contrary to the Common Law of England in that (non-exhaustively) they are:- Ultra Vires; disproportionate and irrational.
3. Contrary to the European Convention of Human Rights (pursuant to the Human Rights Act).
II The “Guidance Covid-19: Guidance on Social Distances which inter alia states:-
“Stay at home
· Only go outside for food, health reasons or work (but only if you cannot work from home)
· If you go out, stay 2 metres (6ft) away from other people at all times
· Wash your hands as soon as you get home
Do not meet others, even friends or family. You can spread the virus even if you don’t have symptoms.”
This is neither proper nor an accurate reflection of the said Regulations.
III The Coronavirus Act 2020 is:-
1. Contrary to the fundamental constitution of England as set out in Magna Carta and the English Parliamentary Constitutional Convention Declaration of Right of 1689 and its subsequent enactment in the English Bill of Rights 1689.
2. Contrary to the Common Law of England in that (non-exhaustively) they are:- Ultra Vires; disproportionate and irrational.
3. Contrary to the European Convention of Human Rights (pursuant to the Human Rights Act).
5. The details of any Interested Parties:-
None have notified as yet, but every person in England has an interest in the issues raised herein.
6. The Issues:-
The above are a disproportionate and unwarranted interference with English rights and freedoms and human rights.
The Coronavirus Regulations and the European Convention on Human Rights
The lockdown measures imposed by the Health Protection (Coronavirus, Restrictions) (England) Regulations are the some of the most extreme restrictions on fundamental freedoms imposed in the modern era; and are a disproportionate interference with the rights and freedoms protected by the European Convention on Human Rights (‘the Convention’) and therefore unlawful.
In considering their proportionality, the failure to derogate from the European Convention on Human Rights (under Article 15) is a relevant factor, as it might suggest that the public health crisis is not one that threatened the ‘life of the nation’. Likewise, the failure to use the Civil Contingencies Act is both relevant to question of whether the Regulations could lawfully have been passed under the delegated powers of the Public Health (Control of Disease) Act 1984 and to proportionality, given that the CCA requires much more regular Parliamentary scrutiny and has specific limitations on the extent of any regulations passed under its delegated powers;]
The Regulations have grave impact upon a number of rights and freedoms, including at least to family and private life (Article 8), religious practice (Article 9), association and assembly (Article 11), property (Article 1 of Protocol 1) and education (Article 2 of Protocol 1) and probably to liberty (Article 5). They represent an unprecedented intrusion into the freedoms and livelihood of the public at large and the gravity of this impact is a key consideration in determining whether they are the least restrictive means of tackling, proportionately, the spread of the virus.
Article 2 of the Convention (the right to life) does not impose a positive obligation to impose Draconian restrictions as a public health measure and is limited (in so far is relevant) to imposing positive obligations on states to ensure a functioning criminal justice system and to react proportionately to immediate and individual threats to life.
The means by which proportionality should be judged are the Siracusa Principles, developed and recognised by international law to determine the proportionality of quarantines and measures responding to public health crises. These require such measures to be:
• provided for and carried out in accordance with the law;
• directed toward a legitimate objective of general interest;
• strictly necessary in a democratic society to achieve the
objective;
• the least intrusive and restrictive available to reach the
objective;
• based on scientific evidence and neither arbitrary nor
discriminatory in application; and
• of limited duration, respectful of human dignity, and
subject to review.
The five tests for the continuance of the Regulations declared by the First Secretary of State on 16th April, were as follows:
· That the NHS is able to cope;
· a “sustained and consistent” fall in the daily death rate;
· reliable data showing the rate of infection was decreasing to ‘manageable levels’;
· that the supply of tests and Personal Protective Equipment (PPE) could meet future demand; and
· that the government can be confident that any adjustments would not risk a second peak.
It is submitted that these tests: (a) impose an over-rigorous and unreasonable fetter on the government’s discretion to remove or reduce the restrictions and are wholly incompatible with an application of the Siracusa Principles; (b) would (if applied) retain the restrictions (if, for example, there was not a ‘sustained and consistent’ fall in the death rate) even if an objective evaluation showed that less restrictive measures might have the same object; and (c) fail to require the Secretary of State to have any regard to the impact of the Regulations on the important rights and freedoms they restrict.
An evaluation of the scientific evidence would be unavoidable for any court reviewing the lawfulness and proportionality of the Regulations, as it would otherwise be unable to consider whether the measures were the least restrictive necessary in a democratic society. This scientific evidence is far more uncertain than is generally accepted and there is, in particular, a great deal of uncertainty about the effectiveness of lockdowns in containing spread, the true mortality and infection rates and the accuracy of the modelling from Imperial College that has been key to government policy.
In conclusion, the application of the Siracusa Principles in a judicial review, taking account of the gravity of the removal of so many and such important rights and freedoms with so little democratic scrutiny, is likely to conclude that the measures are disproportionate to their object, were imposed following an unreasonable fetter on the government’s discretion and are thus unlawful.
7. The details of the action that the Respondents are required to take:-
a) To admit that the said Regulations, Guidance and Act should be rescinded and replaced within an agreed timetable.
b) In accordance with the agreed timetable, to rescind the same and to replace them with agreed Regulations, Guidance and Act which does not improperly interfere with English Rights and Freedoms.
8. ADR proposals:-
None.
9. The details of any information sought:-
Not applicable.
10.The details of any documents that are considered relevant and necessary:-
Not applicable.
11.The address for reply and service of all documents:-
Tilbrook’s Solicitors of Quires Green, Willingale, Ongar, Essex, CM5 0QP
12. Proposed reply date:-
In view of the urgency and importance of the issues 7 days from the date hereof.
Yours faithfully
R C W Tilbrook
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GOVERNMENT RESPONSE TO OUR “LOCKDOWN” CHALLENGE
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GOVERNMENT RESPONSE TO OUR “LOCKDOWN” CHALLENGE
GOVERNMENT RESPONSE TO OUR “LOCKDOWN” CHALLENGE In a previous Blog article I set out our Pre-action Prot…
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GOVERNMENT RESPONSE TO OUR “LOCKDOWN” CHALLENGE
In a previous Blog article I set out our Pre-action Protocol Letter before Claim. I have now received the Governments letter in reply and I have copied the Government’s response below.
“Dear Sirs
English Democrats and Robin Tilbrook – v – The Prime Minister and the Secretary of State Health and Social Care
We are in receipt of your letter before claim, which we understand to have been sent on 23 April 2020, seeking an urgent response within seven days. This response is provided in accordance with the requirements of a judicial review pre-action protocol.
Proposed Claimants
(1) The English Democrats
(2) Robin Tilbrook
Proposed Defendant
(1) The Prime Minister
(2) The Secretary of State for Health and Social Care
Were proceedings to be issued, the proper defendant would be the Secretary of State for Health and Social Care. References to the Defendant in this letter are to the Secretary of State for Health and Social Care.
The Defendant may be contacted via the Government Legal Department. Due to COVID-19, service should, if possible, be effected by email rather than post to limit the handling of materials. All future correspondence should be addressed to Tessa Hocking on behalf of the Treasury Solicitor, at Tessa.Hocking@governmentlegal.gov.uk, quoting reference number Z2005059/TIH/HOI7 and copying Robert Norgrove at Robert.Norgrove@governmentlegal.gov.uk.
Details of the Decision being Challenged
- Your letter seeks to challenge the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”), which were made by the Defendant and came into force on 26 March 2020. It appears from your letter that the challenge is to the entirety of the Regulations.
- The proposed challenge is misconceived. If a claim is commenced, we will invite the Court to refuse permission and certify the claim as totally without merit. We note that you will be familiar with this process, given that your claim in English Democrats v The Prime Minister & Secretary of State for Exiting the European Union (CO/1322/2019) was similarly refused permission and certified as totally without merit.
The Legal and Factual Context
- The entirety of the United Kingdom is presently affected by the global COVID-19 public health pandemic. The extremely serious risk to life and health posed by COVID-19 has obliged the Government to take unprecedented, vital steps to limit the spread of the virus, save lives, and reduce the burden on the National Health Service.
- These measures include those set out in the Regulations, which came into force on 26 March 2020. The Regulations are applicable in England, although equivalent restrictions are in place across the rest of the United Kingdom.
- The Regulations were made under the Part IIA of the Public Health (Control of Disease) Act 1984, for the purposes of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination”: section 45C(1). The measures achieve precisely these purposes. They are similar to those instituted in countries across the world, faced with the same global public health emergency.
- Your letter makes no reference to any particular provision of the Regulations, and it is accordingly unnecessary to set out their full terms and effect here. There is no dispute that the Regulations impose a comprehensive set of restrictions and requirements on all aspects of daily life, affecting every person in England, because of the unparalleled threat to life and to the effective functioning of the National Health Service posed by the pandemic. The Regulations seek to strike a careful balance between preventing the spread of COVID-19 and permitting essential services to continue during the emergency period.
- The restrictions and requirements imposed by the Regulations remain in place from 26 March 2020 until the Secretary of State takes steps to terminate or amend them. The continuing need for those restrictions and requirements is required to be reviewed at three weekly intervals under the Regulations. In line with that requirement, a review of all aspects of the Regulations was carried out before the Government concluded on 16 April 2020 that the need for those restrictions and requirements had not materially altered. That need remains under constant review.
- Accordingly, the public health position in England has very recently been considered with the outcome that the Government continues to be of the view that the restrictions are necessary to address the incidence or spread of infection of COVID-19. Additionally, the Regulations are due to expire six months after coming into effect, being 25 September 2020.
- Further, the Regulations were made by the Defendant under the emergency procedure set out in section 45R of the 1984 Act, by reason of their urgency, following which they must be approved by a resolution of each House within 28 days (leaving aside days on which Parliament is adjourned, prorogued or dissolved: section 45R(6)) or else they expire after that period: section 45R(4). The Regulations are tabled for debate in the Commons on 4th May 2020. It is therefore inaccurate for your letter to suggest that there is no Parliamentary scrutiny of these emergency Regulations.
Response
- Although it is unclear precisely what grounds of challenge your letter advances in respect of the Regulations, any claim for judicial review would be misconceived.
- First, the First Claimant is the subject of an outstanding Order for costs arising from CO/1322/2019, referred to above, in the sum of £2,755.99, which it has thus far failed to pay. The First Claimant was represented throughout those proceedings by the Second Claimant, who is also the National Chairman of the First Claimant. It is an abuse of process for a party to commence further proceedings when it has refused to comply with a Court Order in previous, unmeritorious, proceedings: see, e.g., Harbour Castle Limited v David Wilson Homes Limited [2019] EWCA Civ 505.
- Secondly, no explanation is advanced in your letter as to how or why either of the proposed Claimants have standing to challenge the entirety of the Regulations, or in what way either or both of the proposed Claimants are relevantly victims of the asserted breaches of Articles 5, 8, 9, 11 and 1 and 2 of the First Protocol ECHR, as required by section 7 of the Human Rights Act 1998.
- Thirdly, any claim for judicial review must be brought promptly: CPR r.54.5(1)(a). That freestanding requirement of promptitude is especially critical in a context of a general challenge to Regulations of the greatest national importance seeking to protect life on a mass scale, where reliance has been placed on them – and the population complying with them – for some five weeks. No explanation is given as to why your letter is only written now, when the arguments set out in it appear to be ones that could have been made from the very outset. Any claim would be refused permission for a failure to act promptly.
- Fourthly, and in any event, the relevant restrictions in the Regulations do not give rise to any unlawful interference with any of the ECHR rights referred to in your letter.
- As the Divisional Court held in R (Detention Action) v Secretary of State for the Home Department [2020] EWHC 732 (Admin) at §27: “we must emphasise that it is the role of the court to assess the legality of the Secretary of State’s actions, not to second-guess legitimate operational choices. The circumstances presented by the COVID-19 pandemic are unprecedented and are unfolding hour by hour and day by day. Within sensible bounds the Secretary of State must be permitted to anticipate such events as she considers appropriate and respond to events as they unfold. As matters stand, it does seem to us that she has taken and will no doubt continue to take prudent measures, both precautionary and reactive.” The margin to be afforded to the Defendant is particularly extensive when faced with what Chamberlain J correctly described in University College London Hospitals Foundation Trust v MB [2020] EWHC 882 (QB) as “the most serious public health emergency for a century”: at §56.
- All of the restrictions and requirements imposed by the Regulations pursue a legitimate aim: namely, the protection of public health. The Regulations are rationally connected to that aim: they seek to reduce to a minimum all contact between people so as to limit the spread of COVID-19 and to prevent so far as possible National Health Service resources being placed under an unmanageable strain. They are prescribed by law and strike a proportionate balance. In particular, the unprecedented measures taken in the Regulations, affecting every person and their way of life, are necessary to protect the lives of people in England during this public health emergency. This is the Government’s overriding concern. It is principally achieved by enforcing an extensive but proportionate reduction in all forms of social contact during the emergency period, in common with other countries across the world. The terms of the Regulations are kept under constant review, by reference to the constantly changing situation.
- Accordingly, your letter is wrong to imply any inconsistency with the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, whether in relation to the Regulations or any approach to the review of those Regulations (so far as this is alleged), even if those Principles were of relevance to the ECHR.
- Fifthly, the passing assertion that the Defendant has acted ultra vires is unexplained and is not understood. Nor is it understood, or explained, how the Regulations are “Contrary to the fundamental constitution of England as set out in Magna Carta and the English Parliamentary Constitutional Convention Declaration of Right of 1689 and its subsequent enactment in the English Bill of Rights 1689.” This is incoherent.
Action Requested and Urgency
- For the above reasons, the Defendant does not agree that the Regulations are unlawful and must be rescinded.
- Nor, in any event, are the Claimants entitled to demand the right to agree any replacement Regulations or guidance.
- For the avoidance of doubt, any claim for judicial review issued will be defended and permission opposed. The Defendant’s full legal costs will be sought in the event that permission is refused.
Details of Other Interested Parties
- There are no other interested parties.
Alternative Dispute Resolution
- Alternative dispute resolution is not practical.
Requests for Information and Documents
- No information or documents are sought.
Address for Further Correspondence and Service of Court Documents
- As noted above, all future pre-action correspondence should be sent to, and in the event that proceedings are later issued, documents should be served by email to Tessa.Hocking@governmentlegal.gov.uk, copying Robert.Norgrove@governmentlegal.gov.uk.
- Please acknowledge receipt of this letter.
Yours faithfully
T H
For the Treasury Solicitor
I am now working on the reply to this and I shall publish that too shortly.
Robert Henderson’s response to Robin’s application for Judicial Review
Robert Henderson observations on the JR application:
Dear Robin,
This is certainly worth a go, for even if the action fails it will probably shake up the Government sufficiently to get them to slacken the restrictions. The fact that there are reportedly a growing number of Tory MPs unhappy with the way things are going will also help this to happen.
As to the merits of the judicial review, the problems you would encounter seem to me to be these:
The powers you are saying are disproportionate are based on a recent Act of Parliament so there is no question that outdated law is being used to obtain a Government’s ends.
The question of what Parliament can and cannot do is a vexed one. The obvious argument from the Government side is that Parliament is sovereign and can do anything it chooses. The argument against this is that there are obligations derived from Common Law or treaties a British Government has signed up to.
To the question of Common Law I would say this, Statute Law routinely overturns directly or indirectly Common Law judgements and precedents.
As for law deriving from international tries there are two points to make. First, treaties, for example the European Convention or Human Rights, (ECHR) frequently have very strong qualifications which mean that the rights and freedoms supposedly protected are given only a very limited protection in practise. For example here is the ECHR article supposedly protecting free expression
Article 10 – Freedom of expression
1Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
More generally if the supremacy of Parliament is accepted and the principle that no Parliament can bind its successor remains in play, then logically no Parliament can be prevented from removing freedoms per se.
Proportionality
If you do go ahead with the Judicial Review then the strongest issues seem to me to be these;
1. Other countries such as Sweden have obtained a better or similar result in terms of deaths than the despite operating a more relaxed regime than the UK.
If you can persuade Professor Johan Giesecke to be a witness that would be a plus because he is both calm and authoritative. He also believes that no matter what regime is adopted by governments to deal with the virus the outcome will be broadly similar. See
https://unherd.com/thepost/coming-up-epidemiologist-prof-johan-giesecke-shares-lessons-from-sweden/
2. The UK Gover`nment is inconsistent in its rules, for example, it has continued to allow entry into the UK with no routine testing or enforced isolation of thousands of people each day. The Government claim this failure to act is in response to their expert scientific advice that it was not necessary. Frankly, I think most people, myself included, will see that advice as self-evident nonsense The most likely explanation for the failure to test and isolate is that it would be s politically sensitive.
If people are allowed to continue entering the country with no checks or isolation there is a serious danger of the virus being re-imported into the UK over and over again
3. The Government’s constant refrain that they act of the best scientific and medical advice is simply untrue.
Scientists often disagree and like academics generally are more than happy to fight battles which have little to do with science and everything to do with ego and professional jealousies. This makes a nonsense of the increasingly pathetic bleat of Johnson and co that “We are acting on the best scientific and medical advice “.
The upshot of this ploy is politicians not choosing the “best and medical and scientific advice ” but the advice which best suits their political narrative and covers their political backs.
Moreover, as a matter of logic politicians cannot be said to be following the best scientific and medical advice through choice because by definition they are not qualified to choose between competing professional medical and scientific advice .
5. It is becoming increasingly clear that the present regime is a cure worse than the disease. The concentration on corolavirus is undoubtedly resulting in substantial numbers of deaths from non-corolavirus causes and will result in many more, plus a great deal of mental agony for sufferers and their families.
Cancer patients are having their treatments stopped, millions of elective operations have been scrapped or delayed and there have been dramatic falls in Accident and Emergency patients generally with especially worrying falls in patients possibly suffering from suspected heart attacks and strokes, presumably because people are either frightened to go into hospital with corolavirus about or simply out of a misplaced sense that they did not want to be a burden of the NHS under present circumstances. This stores up trouble for the future both for the patients and the NHS.
6. The public need to be trusted with harsh facts. The regret generated by the coronavirus deaths is understandable but ignores one very important thing. Put baldly the idea that some patients might be treated more favourably than others, for example, the young rather than the old, seems cruel. Yet this is no more than what happens generally in emergency medical situations, namely, the practice of triarging patients. (That is the dividing of patients into those who will most probably survive without treatment, those who would survive with treatment and those who would not survive regardless of treatment. )
In the context of who is likely to survive, there is the question of whether some treatments are too robust, especially for the old. For example, it is reported that “nearly all Covid-19 patients put on ventilators in New York’s largest health system died,”. It is such a physically brutal intervention that, as has been hinted at in previous reports about ventilators, it may be killing people, especially the old,. The procedure also requires very heavy sedation which may have seen some on their way out of the World.
Living In A Madhouse 