Lockdown challengers reply to the Government
I didn't think much of the government's official response to our Judicial Review pre action protocol letter sent out to them on St George's day.
Their response letter is here >>> https://robintilbrook.blogspot.com/2020/05/government-response-to-our-lockdown.html
Here is my reply:-
Ms T H
Litigation Group
Government Legal Department
102 Petty France
Westminster
London SW1H 9GL
Dear Madam
Re: English Democrats (Reg No. 6132268) and Robin Tilbrook – v – The Prime
Minister and the Secretary of State Health and Social Care
Thank you for your
letter of the 30th April. We
respond to your points numeratim as follows:-
2. We refer to the old and ignoble advocate’s
adage of:- “If your case is strong on the
law then bang on about the law; if you case is strong on the facts then bang on
about the facts; but if your case is neither strong on the law nor on the facts
then bang on the table”. Respectfully, much of your letter is evidently
banging on the table and either ad hominem and/or merely prejudicial, instead
of addressing the issues.
We contend that a certification of
“Totally Without Merit” (particularly in cases such as our client’s previous
one where many lawyers, including eminent ones had already opined that the case
was of strong merit) is a naked breach of basic rights to a fair hearing, going
back to Magna Carta in England, and also under Article 6 in the European
Convention of Human Rights.
3. There is little point in referring to the
“entirety of the United Kingdom” when the British Government and, in
particular, the Secretary of State for Health, only has jurisdiction over Health
in England.
As the example of Sweden shows, the British Government has by no means
been “obliged” to act in the way that it has.
The way in which the Government has acted has probably not limited the
spread of the virus, nor probably saved lives, albeit it is accepted that it
has acted to “reduce the burden of the National Health Service”, but that is
not a legal justification for its actions which are politically motivated and also
in response to Mainstream Media hysteria. It has certainly crashed the English economy.
7.
We would ask for sight of the “Review”, which you say was concluded on the
16th April.
More generally on the issue of ultra vires we would respond as
follows:-
Statutory Instrument: 2020 No. 350
Public Health, England
The Health Protection (Coronavirus, Restrictions)
(England)
Regulations 2020
Statutory Instruments are not primary legislation and therefore
according to trite Law they cannot legally exceed the scope of the powers
granted to Ministers under the primary legislation. In this case this is the Public Health
(Control of Disease) Act 1984. This is an
Act primarily focussed on controlling international trade and travel,
particularly with reference to shipping and docks and, by extension, also
airports and aerodromes. There is no
authority in this Act for a general Lockdown of the People of England, or for
many of the businesses conducted by the People of England.
The Prime Minister is reported to have expressly refused to authorise
regulations to control international travel as is reported here:-
>>> Priti Patel in row with Boris Johnson over closing Britain's borders to keep coronavirus at bay >>>> https://www.telegraph.co.uk/politics/2020/03/26/priti-patel-row-boris-johnson-closing-britains-borders-keep/
The result, as has been reported in the Guardian (on 5.5.20) is that,
in the period from 1st January 2020 to 23rd March 2020,
the Government had permitted over 18 million international travellers to come
into the United Kingdom unchecked and untested for Coronavirus, even from
points of origin where there was known to be infection.
The Public Health (Control of Disease) Act 1984 would have permitted
restrictions to such travellers, but as stated above, the Prime Minister
expressly declined to take steps which were within the powers of the Act and
thus of the Secretary of State.
The Government also did not take action under
the Civil Contingencies Act 2004, nor under the Coronavirus Act 2020 which the
Government rushed through Parliament duplicitously, claiming that it needed the
powers urgently.
Within 12 hours of Royal Assent for this Act,
the Secretary of State had promulgated his pre-prepared “Health Protection (Coronavirus, Restrictions)
(England) Regulations 2020”, purportedly pursuant to the 1984 Act.
The Claimants will rely upon the natural meaning of The Public Health (Control of Disease) Act
1984, considered both literally and also purpositively
It is submitted that the 1984 Act only provides
powers to create
Regulations against individual persons or
singular gatherings, not a
general Lockdown of the People of England.
The effect of permitting on-going mass
international travel has undoubtedly been to vastly facilitate the spread of
Coronavirus infection into the population of England.
If that was not enough, the Government, for
the sake of the NHS, promulgated the regulation:- “Covid-19 Hospital Discharge Service
Requirements” (here is the link to that regulation >>> https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/880288/COVID-19_hospital_discharge_service_requirements.pdf
).
Under this large numbers of elderly
“bed-blockers”, whom NHS management had long wanted to get out of the hospitals,
were transferred into Care Homes, paid for by Government funds. This had the effect, which seems to have been
in the contemplation of the drafters of this regulation, of spreading the
Coronavirus infection widely within the Care Homes to which these hospital
patients were sent. Thus, no doubt, very
considerably increasing the death toll in such homes.
The Government’s actions in “Locking Down” the
general population of England whilst continuing to permit mass international
travel and placing at risk the inmates of care homes and crashing the English economy, is in stark contrast to
the careful and responsible response which the Swedish Government has adopted
for Sweden.
It was also irresponsible, reckless and ultra vires for regulations to
be issued for the purposes, not of controlling the disease itself, but instead
of “saving the NHS”.
NHS England, is the only national health service which is under the
control of the British Government. NHS
Wales, NHS Scotland and NHS Northern Ireland are under the control of their
respective National and Provincial Governments and not of the British
Government. That is why the British
Prime Minster and British Secretary of State from the British Cabinet are the
proper Defendants in these England focussed proceedings.
It is also noted that the status of the Coronavirus (AKA Covid-19) was
reduced from the status of a “High
Consequence Infectious Disease” under the NHS guideline “High consequence
infectious diseases (HCID)” published on the 19th March 2020.
Further it is noted that the Advisory Committee on Dangerous Pathogens (ACDP)
is also of the opinion that Covid-19 should no longer be classified as a HCID.
11. Your
point about the unpaid Costs Order is, with the greatest of respect, preposterous as an obstacle to
bringing Judicial Review against different parties, on a different matter. We
refer to 2 above. The case quoted is
also irrelevant. The First Claimant is
however prepared to pay the £2,755.99 which you refer to. Please provide details of where and how to
pay that and what reference to apply etc.
12.
With the greatest of respect it is obvious that political parties and
corporations and individuals all have enough standing to challenge whether or
not the Government has behaved with constitutional propriety within the powers
given to them and, in accordance with the European Convention of Human Rights,
by way of Judicial Review. This is as
opposed to bringing a claim for damages, which does of course require proof of
loss. This is cogently expressed in Supperstone and Goudie - Judicial Review, published by Butterworths
13. If
the Regulations had been, as initially notified, restricted to a duration of
three weeks (despite our case that they would still have been illegal), it
would arguably not have been proportionate to bring Judicial Review proceedings
to have them quashed.
In the light of the Government’s expressed intention to continue with
these Regulations, it has become more and more important to bring this
case. In addition, it is noted that others
are now feeling likewise and are also proposing to bring Judicial Review
proceedings. The primary requirement is,
of course, as you well know, that the Judicial Review is brought within three
months.
Further it is noted
that the Regulations were amended on the 22nd April 2020 by the
Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations
2020 (Statutory Instrument 2020/447) (“The Amended Regulations”). The Amended Regulations introduced stricter
conditions on the English public, in particular by preventing them from
remaining outside their residence, rather than restricting them from leaving
them, save for a “reasonable excuse” (sic!). These Amended Regulations were
made without any publicity or democratic debate. Both the Regulations and the Amended
Regulations are challenged herein.
14.
With respect we cannot see how you can make such a claim as it is
self-evident that the Restrictions in the Regulations include many
interferences with the European Convention of Human Rights. E.g. Those
Restrictions that would prevent gatherings of more than 2 people are disproportionate breaches of the fundamental
rights and freedoms protected by Articles 5, 6, 9, 11 and 14 and by Articles 1
and 2 of Protocol 1 of the European Convention on Human Rights and Fundamental
Freedoms.
15.
It is, with respect, obvious that the “Covid-19 Pandemic” is not
unprecedented since there have been previous pandemics, including some much
worse than the current situation. To
take one example, the Spanish Flu killed over 250,000 within the United Kingdom
and over 50 million worldwide. Yet there
was no Lockdown and no Restrictions but, on the contrary, a General Election
was held in December 1918, in the middle of that genuine pandemic.
16.
The Restrictions imposed by the Regulations had as their primary
objective what is primarily a management measure regarding the running of NHS
England. As already explained, the Government’s
actions have clearly not focussed just on the protection of public health.
18.
We have set out above much more of our case on ultra vires. We submit
that, given the obvious discrepancy between the focus of the Act on travel and
the Regulations and Amended Regulations on Lockdown, that the Defendants’
Regulations and Amended Regulations are ultra vires. The operation of the Regulations and Amended
Regulations are “contrary to the fundamental constitution of England as set out
in Magna Carta and the English Parliamentary Constitution and Convention Declaration
of Right of 1689 and it subsequent and its subsequent enactment in the Bill of
Rights 1689”. This is wholly
coherent. The Declaration of Right 1689
is the fundamental constitutional lynchpin of England’s constitution. It
prescribes the proper bounds of Parliament and it is Ultra Vires and
Unconstitutional for Parliament to purport to legislate against the bounds set
for it and the Executive by the Declaration of Right. (See [1953] ScotCS CSIH_2, 1953 SC 396, 1953 SLT 255)
20.
Whilst what we suggested in our previous letter is that it might be
possible to agree regulations that would be lawful, our primary contention is,
of course, that so far as the existing Regulations and Amended Regulations,
Guidance and the Coronavirus Act 2020 are concerned, that they should all be
quashed as being legally and constitutionally invalid.
22.
It is obvious that in fact any legal person or individual within England
is also an interested party
More generally, we support and endorse the
arguments put forward by Messrs Wedlake Bell in their letter to the Second
Defendant dated the 30th April on behalf of their client Simon
Dolan.
Yours faithfully
Please help us. Our appeal for support is here >>> https://www.englishdemocrats.party/lockdown?utm_campaign=lockdown0805&utm_medium=email&utm_source=englishdemocrats
