I wanted to update you on our appeal, which was heard at one of the highest courts in the land last Thursday and Friday. The hearing took place in the very grand Court 4 at the Royal Courts of Justice which is the Lord Chief Justice’s Court. The three appeal judges included the Lord Chief Justice himself, Lord Burnett of Maldon and two other appeal judges Lady Justice King and Lord Justice Singh. It was a ‘hybrid hearing’ which meant that the hearing physically took place in a courtroom but it was also being live streamed for people to watch. I was pleased to see some supporters in court – thanks for coming down.
Once again it was Philip Havers QC putting forward our side of the argument, supported by junior barrister Francis Hoar. Sir James Eadie QC was representing the government (with three other barristers at his side, handing him notes and working on their case.
The whole of the first day and the morning of the second were taken up with Philip Havers presenting our case. His main argument was that the lockdown legislation was ‘ultra vires’ or outside the scope of the 1984 Public Health Act which was used to bring them in. In other words the lockdown was illegal.
He also argued that our case was not ‘academic’. When our judicial review into the lockdown was refused in July one of the reasons given was that the case was no longer valid because the lockdown regulations had been revised numerous times (and are being reimposed as we speak). However, we say that the legal challenge is absolutely vital and necessary to stop the government doing the same thing again.
Philip also explained why we believe the regulations contravened people’s human rights which are enshrined in the European Convention of Human Rights and that they were a ‘disproportionate breach’ of those rights. He told the court the lockdown regulations ‘imposed far-reaching restrictions on the lives and businesses of the entire population of England’.
Philip said: “If the court subjects these regulations to judicial scrutiny and if the government is considering a second lockdown, the government, together with parliament and the public, will have available to them what this court has to say about the proportionality of the original lockdown.”
Philip argued that the original lockdown regulations were subjected to ‘no judicial scrutiny at all.’ He said: “Over five weeks elapsed between the making of the original regulations on March 26 and being approved by affirmative resolution by the House of Commons… seven weeks with both houses. These regulations were made without any parliamentary scrutiny at all and only debated weeks later.” He said the 1984 Public Health Act did not allow for ‘house arrest on the whole population.’
My QC then directed his aim at the five tests the government relied on to consider an easing of the lockdown, arguing that these had to be satisfied regardless of the damage or harm being caused to other illnesses and jobs and so on. He told the hearing the five tests did not take into account ‘domestic violence, cancer, disease – the consequences for all those who suffer from other illnesses’. He said: “Less restrictive measures could have been adopted without causing disproportionate harm.”
The debate moved on to deaths from Covid-19. Mr Havers said: “The chance of children, mercifully, or adults under 20 dying from Covid-19 who didn’t have a pre-existing condition was and still is vanishingly small and the chance of an adult under the age of 60 dying was and still is also extremely small….To continue to keep the whole population under house arrest…to continue to ban all gatherings and so on was irrational when a more targeted approach could have been achieved.”
Lord Justice Singh asked if protecting the NHS was a good enough reason to impose the restrictions. Philip responded: “There were well over 3000 spare capacity beds… there was no realistic prospect of the NHS being overwhelmed.”
The justices then questioned whether our legal challenge was too general. They also probed into whether the legislation’s ‘reasonable excuse’ caveat meant it did not violate human rights. In other words, they were suggesting there were get-outs for people who could breach the regulations and then cite human rights law to justify why they had gone to see their grandma ? This felt like a controversial point to me. Is it realistic that the average person would think to quote human rights law to a policeman?
On the second day, Mr Havers argued the closure of schools was disproportionate. He said: “All schoolchildren with no pre-existing conditions could readily have gone back to school by July 2 and we say should arguably have gone back to school by then.”
Lord Chief Justice asked: “So you are saying because the data was showing the risks were low therefore the government should have persuaded reluctant people to restore the status quo to do so?” Philip replied: “Given the enormous harm being done to the education of every schoolchild in the country my answer is ‘yes’.”
Sir James Eadie took to his feet on the second day to put the government’s case. He said: “The structure and nature of restrictions has changed pretty fundamentally over time, reflecting the scientific understanding. The various judgements that have to be made over time and the balance governments have to strike… to keep the economy maximally open as humanly possible against the resurgence of the violence and the risk it creates.” Sir James also denied claims the coronavirus restrictions were improperly implemented.
Philip said the 1984 Public Health Act used to order the lockdown only applied to individuals and should not have been used ‘to keep everyone ‘under house arrest.’ He suggested the Government should have used the 2004 Civil Contingencies Act instead.
The Lord Chief Justice, Lord Justice Singh and Lady Justice King are now considering their judgement which could be issued any day now.
Depending on their verdict, we will have to consider our next step. It may be that we have to challenge their ruling in the Supreme Court. One thing remains certain – we will not be giving up. What’s also clear, is that this case is momentous, having brought into question significant elements of our legal system as well as the powers of our ministers.
In the meantime, we must continue to gather as much support as we can. Please continue to spread our message, by sharing our updates, our cause and the link to this Crowdjustice fund.
Together, we will Keep Britain Free.