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Friday, 8 May 2020

Lockdown challengers reply to the Government

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. 
Here is my reply:-
Ms T H

Litigation Group

Government Legal Department

102 Petty France


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 >>>>

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 >>> ).

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


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Monday, 4 May 2020




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, quoting reference number Z2005059/TIH/HOI7 and copying Robert Norgrove at

Details of the Decision being Challenged

  1. 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.


  1. 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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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. 

  1. 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.

  1. 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.


  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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

  1. For the above reasons, the Defendant does not agree that the Regulations are unlawful and must be rescinded.

  1. Nor, in any event, are the Claimants entitled to demand the right to agree any replacement Regulations or guidance.

  1. 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

  1. There are no other interested parties.

Alternative Dispute Resolution

  1. Alternative dispute resolution is not practical.

Requests for Information and Documents

  1. No information or documents are sought.

Address for Further Correspondence and Service of Court Documents

  1. 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, copying

  1. Please acknowledge receipt of this letter.

Yours faithfully


For the Treasury Solicitor

I am now working on the reply to this and I shall publish that too shortly.  

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