In one of the most celebrated passages in legal history, Lord Atkin stated in Liversidge v Anderson [1942] AC 206 that whether in war or in peace, the laws speak in the same voice and that the judges, “stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.” During the COVID-19 pandemic, the country was on a war footing, although the enemy was a virus rather than a foreign state. The country was subject to the most severe restrictions on personal liberty in modern times, with people being confined to their homes, often for lengthy periods; families, partners, and friends separated; and schools, workplaces and places of worship closed. It provides a unique opportunity to examine how the system of judicial review responds to a prolonged crisis. This “stress test” of the judicial review system is revealing, not least by exposing the fact that it was the system rather than the judges, that had greatest impact in terms of revising and improving rules and decisions taken by governments.
Though there were some exceptions and snags, the processes for bringing and deciding judicial review claims adapted relatively well to the pandemic. Given that modern technology allows for electronic correspondence and electronic filings at court, litigation could continue to progress. Most remarkably, technology had developed to the point that relatively glitch-free online conferencing facilities were readily available, which meant that the Administrative Court in London (and its counterparts around the UK) rapidly adopted a system of remote hearings. Judicial review claims, therefore, continued to be brought and litigated over the two-year period during which the country was subject to pandemic laws.
It would be a reasonable hypothesis that the courts upheld a large number of judicial review claims over the period, given the fact that regulations, guidance and administrative decisions were—often by necessity—regularly produced in hasty and ill-considered fashion, without the full impacts being foreseen or taken into account. Judges often portray judicial review as representing a constructive “partnership” between government and the courts, with a shared objective of ensuring that the laws are well-made, fair and reasonable; or, as it was put by the Master of the Rolls in R v Lancashire County Council ex p. Huddleston [1986] 2 All ER 941, achieving the “maintenance of the highest standards of public administration”. This role is enhanced in a context, such as the pandemic, that squarely engaged the Human Rights Act 1998 at almost every juncture, since that Act provides courts with a statutory mandate and set of principles against which to test the proportionality of measures interfering with the right to private and family life, freedom to practice religion, the right to education etc. Particularly in circumstances where Parliament and the devolved legislatures were severely hobbled in their ability to scrutinise government action, courts were arguably relatively well placed to contribute to the overall task, by giving rules and decisions a degree of reflection and scrutiny that was lacking when they were made, shaving off the sharper and more excessive edges of the pandemic regulations, and guiding governments to more proportionate outcomes. Something like this role was performed in France by the Conseil d’Etat, which rose to prominence because of its active engagement with the pandemic laws in France and high-profile rulings against the government.
In Britain, a very different picture emerges from the decided cases. Judicial decisions had a negligible impact on curbing or shaping COVID-19 rules and restrictions. There was only one case in England in which COVID-19 regulations were found unlawful (R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin)) and one case in Scotland (Philip v Scottish Ministers [2021] CSOH 32). The English case was decided on a failure of consultation—an important but not substantive point—and neither case had practical consequences as events had moved on by the time the unlawfulness was established.
Judicial rulings mostly steered towards furthering adherence to public health rules, such as enhancing their application to asylum-seekers (as in R (NB) v Secretary of State for the Home Department [2021] EWHC 1489 (Admin)) or the claim in R (Gardner) v Secretary of State for Health and Social Care [2022] EWHC 967 (Admin), which found, well after the event, that it had been irrational to move persons from hospitals to care homes without a negative covid test. Judicial rulings also had an impact in narrowly focused disputes relating to specific, and often tragic, individual circumstances, such as by allowing terminally ill patients to return home to be with family (VE v AO (by her litigation friend the official solicitor) and the Royal Borough of Greenwich[2020] EWCOP 23). The courts generally acted as a facilitator of the executive response to the pandemic, through deferential reasons and expansive interpretations of statutory powers (see e.g. R (Dolan & Ors) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 and R (Francis) v Secretary of State for Social Care [2020] EWHC 3287 (Admin)). The system also facilitated freedom of government action because the length of time required to decide cases resulted in claims becoming academic or becoming of no practical impact. Indeed, it is striking how few claims reached final reasoned determination in the courts. There were few decisions of appeal courts and not one that reached the Supreme Court. Historians looking back at the catalogue of judicial review cases concerning the pandemic will find the cupboard rather bare, and nothing of major significance. The comparison with the rich seam of Brexit-generated case law is stark.
There is however a further dimension to the picture. Whilst it is tempting to look at judicial review exclusively through the lens of judgments delivered by the courts, that is only part of the story. The courts are peripheral to the bulk of the activity that goes on between claimants and government bodies in judicial review claims. Lawyers are instructed, arguments identified, claims are threatened, reinforced and pursued, all without any involvement of the courts, at least until the stage of permission (or interim relief, if sought). The protagonists are the parties and their legal representatives who, in most cases, find a resolution and often achieve meaningful change without a judge becoming involved. Any consideration of the contribution of the judicial review system, as opposed to the contribution of judges, must take into account this important dimension.
Evidence of such contribution is, of course, more difficult to come by, since much of it never sees the light of day (still less is it published on a central, publicly available database, as decided cases generally are). But some evidence is available: newspaper reports, announcements by firms of solicitors, and references in associated reported judgments can provide an impressionistic picture. From this evidence, numerous examples can be identified where judicial review caused public bodies to take a “second look” at the pandemic rules or decisions that they had promulgated and change them.
Examples of this “second look” function of judicial review in effect during the pandemic include an early threatened judicial review to the Government’s stay-at-home guidance, which was then changed to make better accommodation for people with autism and other disabilities. The NHS also changed guidance on parental contact with minors detailed under the Mental Health Act after a judicial review was instigated. The rules on charges for hotel quarantine were changed to make allowance for people who could not afford to pay, after a judicial review was brought challenging the policy as well as other elements of the hotel quarantine system. The Government introduced exceptions to the prohibition on foreign travel after judicial review proceedings were brought by parts of the air travel industry.
Whilst the reasons for decisions or rules being changed are usually complex and often hard to attribute directly to the threat of judicial review, nonetheless the ability to threaten or commence judicial review claims provided an important and empowering lever for affected persons and companies to seek to alter government policies. It often facilitated quick resolutions. Judicial review is supposed to provide a quick, effective, and relatively cheap form of litigation, yet whilst there were instances of courts considering (and occasionally granting) interim relief during the pandemic quickly, final resolution of disputes too often took too long to be worthwhile. Yet, quick, effective and cheap impacts were more often secured through the “second look” function of judicial review. The available examples of the second look function of judicial review resulting in meaningful—and consensual—change to decisions and rules, despite the fragmented available evidence, reveal that it had a greater impact on the pandemic rules and decisions than did decided cases. It was in this way that judicial review primarily contributed to the “maintenance of the highest standards of public administration” during the pandemic.
Overall, the pandemic stress-tested the modern judicial review system. It subjected it to two competing forms of pressure. On the one hand, there was pressure for special deference to the executive reflecting the difficult and exceptional circumstances the country faced and, on the other, there was pressure for heightened vigilance given the extremely severe interferences with individual liberty that governments imposed. The former is predominantly reflected in the reported case law. However, viewed in broader compass, a different, more nuanced conclusion can be drawn. The broader judicial review system was more impactful than the decided cases suggest as a route to triggering a “second look” at decisions or rules by public servants. In this way, judicial review secured meaningful changes to decisions and policies relatively quickly that reflected a better balance of public health imperatives and individual freedoms and interests.
Tom Hickman KC is Professor of Public Law at UCL and a barrister at Blackstone Chambers
Joe Tomlinson is Professor of Public Law at the University of York
This blog summarises a longer article published in the Edinburgh Law Review, 2023, Vol 27 p.252-283, “Judicial Review during the Covid-19 Pandemic”.
(Suggested citation: Hickman, T. and Tomlinson, J., ‘What role did judicial review play during the pandemic?’, U.K. Const. L. Blog (13th May 2024) (available at https://ukconstitutionallaw.org/)