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No right answers, only judgments

The state of the Dolan challenge to the Government’s Lockdown policies

On Thursday, a High Court judge heard the first stage of a legal challenge against the Government’s handling of the Coronavirus pandemic. The Claimant is Simon Dolan, an entrepreneur. He is not involved in politics and is not an obvious person to take the fight to the government. Aside from major commercial success, he is a motor racing enthusiast and owns an estate on Mustique. There has been much talk recently of the forensic abilities of Sir Keir Starmer. It is perhaps a shame that he has not made more use of them to challenge the government’s policies in response to Covid19. Very few public figures have dared to ask questions or express a contrary view. Lord Sumption, the historian and retired Supreme Court judge, has been a rare and honourable exception. As the government’s weighty response indicates, this legal challenge is the first one they find threatening.

Dolan’s action has succeeded in rattling the cages of Johnson, Matt Hancock and other ministers

Simon Dolan has managed to raise over £200,000 for his court case in small donations from individuals. His challenge is a mixture of technical legal argument about whether the Government used the right Act of Parliament as the basis for the Coronavirus regulations, and arguments about the political merits of the lockdown – did the government properly take account of its economic and social effects, and did it breach rights to private and family life, liberty, education rights and property rights? Dolan’s position can be inferred from the name of the YouTube channel he uses to promote his views: “Keep Britain Free”.

The courts traditionally like to say that they consider the legality of government actions, but that they cannot examine the political merits of government policies – their role is technocratic and apolitical. That may come as a surprise to those who remember the successful legal challenges to Brexit brought by Gina Miller and her lawyer, Lord Pannick QC. Most people had never heard of Lady Hale, the now retired President of the Supreme Court, until September 2019 when it ruled unanimously against the government’s prorogation of Parliament. She, Pannick and Miller are now firmly installed in the pantheon of Remainer deities.

Clearly Dolan’s action has succeeded in rattling the cages of Johnson, Matt Hancock and other ministers. At the hearing, the Government’s presence consisted of 4 barristers, 6 solicitors and 6 civil servants from the Departments for Education and Health and Social Care, with its case presented by Sir James Eadie QC, known by his fellow lawyers as the treasury devil. Also attending were the sceptical journalists Peter Hitchens and Toby Young, and Steve Baker MP. Not a bad haul for a remote hearing which was only to decide if the case was arguable.

The challenge has forced the govt to make some surprising admissions. According to the statistical analysis produced by Alistair Haimes of this parish and others, by mid-June there had been 28,137 Covid deaths, of which 297 were of people under the age of 60 without a co-morbidity, i.e. 99% of the deaths were of people who were already seriously unwell. The total number of children who have died of Covid19 is 12. Of those, 9 had one or more other serious diseases, and so 3 of those children who had died were healthy – a modest figure when compared with the numbers who are killed in fatal car crashes, or even by those struck by lightning, whereas 400,000,000 hours of teaching have been lost since the lockdown. But if you thought that your son’s school had been closed and his education had been compromised, you are wrong, according to Sir James and the regiment of lawyers. In fact, the government did not direct the closure of schools at all. Instead, it, ‘requested of parents and schools that … pupils should not receive their education on school sites.’ So when Boris Johnson addressed the nation and said, ‘I must give the British people a very simple instruction – you must stay home!’ it was just a gentle invitation. Barristers are often asked, “how could you defend someone who you know is guilty?” No doubt after this latest adventure in casuistry, Sir James will have polished his answer to the layman’s question.

Eadie has been representing the Government in court for over a decade. To cabinet ministers, he must appear as the legal equivalent of St Jude, the patron saint of lost causes who was known for preaching the gospel in particularly difficult circumstances. Recent cases of his include supporting the American claim to diplomatic immunity for careless driving in the car crash which killed Harry Dunn. Eadie’s advocacy for the government in Gina Miller’s second Brexit challenge was not well received by the Supreme Court, and the martyr he most resembled was St Sebastian, tied to a post and shot with arrows by persecutors and unbelievers like Lady Hale. His presence is a sure sign that his clients are very worried, and that somewhere a minister knows he hasn’t got a leg to stand on.

Dolan’s counsel described the lockdown as, ‘the most sweeping and far-reaching restrictions on fundamental rights in England since world war two.’ He could have said since Cromwell’s Protectorate and rule by the major-generals. This unparalleled restriction of civil liberties was given effect not by a statute but through a set of regulations which made it a criminal offence to leave your house without reasonable excuse. The regulations were not debated in Parliament at all before they came into force, and were considered for a mere two hours some five weeks after they criminalised most aspects of ordinary life. There was a two hour debate, conducted remotely by video, without a division at the end of it, and fewer than twenty MPs spoke. The Labour Party’s reluctance to challenge the regulations no doubt has a basis in political expediency – don’t interrupt your opponent when he is making a mistake.

Mr Justice Lewis on Monday 6 July decided that Dolan’s legal challenge was unarguable and he refused to grant permission for it to proceed. His reasons were that because the regulations have been amended and the lockdown eased, the challenge to them is academic – i.e. no longer a real-world problem. Well, tell that to the people of Leicester. He decided that 100 days of lockdown did not have disproportionate effects, and that Dolan’s case to the contrary was unarguable. The High Court has chosen not to allow scrutiny, and any real consideration of the govt’s actions will have to wait for the Leader of the Opposition to oppose the Government, or for a public inquiry. Eadie’s claim in court was that there were ‘no right answers, only judgments,’ is an early sign of how the actions of Boris Johnson, his officials and the cabinet will be defended in future.

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