R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605

The COVID-19 pandemic highlighted conflicts between public health measures and civil liberties. In the case R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, the Court of Appeal endorsed lockdown regulations, excessively deferring to executive authority.[1] This essay critiques the judgment’s impact on rights, justice, and state power, revealing fundamental issues in balancing collective welfare and individual freedoms by prioritising public health over robust rights protection.

Facts and Decisions

Simon Dolan challenged the UK’s COVID-19 lockdown measures, asserting they exceeded the Public Health (Control of Disease) Act 1984, which is intended for local outbreaks, not nationwide restrictions, arguing that it was ultra vires beyond legal power and violated articles 5 (liberty), 8 (private and family life), 9 (religion), and 11 (assembly) of the ECHR. This case involved individuals such as Lauren Monks and her son, whose education and religious practices were affected by the lockdown imposed.[2]

Dolan contended that the government overlooked the Civil Contingencies Act 2004[3], which requires parliamentary scrutiny for national emergencies, and misapplied section 45G (2) of the 1984 Act to impose extensive restrictions, despite section 45D (3) explicitly prohibiting public detention.[4] He further asserted claims of irrationality, lack of procedural fairness and failure to explore less restrictive measures.

In July 2020, the High Court dismissed all grounds and held the case to be unarguable or academic, as some regulations had lapsed and been repealed.[5] Although the Court of Appeal permitted an appeal based on the ultra vires argument, it denied permission on other grounds, including human rights violations and procedural unfairness, labelling them ‘’not properly arguable’’. Ultimately, the Supreme Court dismissed the ultra vires claim, affirming that Section 45G(2)(j) of the 1984 Act allowed for nationwide lockdowns, despite Section 45D(3) prohibiting public detention.[6] The Supreme Court subsequently denied permission to appeal in 2021.[7]

Human Rights Issues and Analysis

The decision has sparked debate about the application of the principle of legality in emergency contexts. This principle stipulates that any infringement on fundamental rights must be explicitly permitted by parliament, and it was also noted that general or ambiguous words cannot just override fundamental rights.[8] Instead, in the absence of any express language, the court will presume that the most general words were intended to refer to individuals’ basic rights.[9] Nevertheless, the court framed the issue primarily as a matter of statutory interpretation, contending that the Public Health Act of 1984 granted extensive powers, including the authority to impose lockdowns.[10] This stance is at odds with Lady Hale’s caution, which warned against inferring powers that were not explicitly stated in legislation.[11] Critics compare this to the wartime deference seen in Liversidge, where the court prioritised executive convenience at the expense of constitutional safeguards.[12] So, the courts have been criticised for prioritising executive decisions over individual rights during times of war or crisis.[13] In essence, the Dolan case highlights concerns regarding the erosion of the principle of legality in emergencies, as Lady Hale and David Dyzenhaus noted.[14] While Hale remains hopeful that the principle withstands pragmatic defence, Dyzenhaus cautions that courts often weaken it during crises. In Dolan, the Court’s broad interpretation of the Secretary of State’s powers under the Public Health Act 1984 has been interpreted by some commentators as raising questions about the extent of judicial scrutiny during emergencies.[15]

During the pandemic, lockdown measures curtailed essential rights, specifically articles 5, 8, 9, and 11, as well as the right to property, which was article 1 of the first protocol of the ECHR.[16] ‘’The court considered the scope of the rights and concluded that it was not arguable that these rights and freedom were restricted’’.[17] The court concluded that the restrictions on rights, such as freedom of assembly and association, were justified and proportionate. The Court’s deferential stance meant that proportionality was addressed at a relatively high level of generality.[18] Conversely, the ECHR in Vavricka stressed that restrictions should be the least intrusive means to achieve legitimate objectives. [19] Scholars argue that unchecked judicial deference risks normalising the suspension of rights, particularly when the proportionality assessments are neglected and measures are sufficiently scrutinised, ultimately leading to the erosion of fundamental rights.[20] The court’s rejection of Article 5 claims, despite similarities with Guzzardi, where home confinement was recognised as a deprivation of liberty, illustrates the court’s narrow interpretation of deprivation of liberty in the context of general public restrictions. [21]

Judicial Approach and Procedural Considerations

In Dolan’s case, the Court of Appeal demonstrated deference to the government’s decisions by accepting the secretary of state’s judgment without thorough proportionality review, asserting that ‘’there were no arguable grounds for interference, given the pandemic situation’’.[22] This deferential approach reflects the court’s emphasis on institutional competence during a rapidly evolving public health crisis.[23] Scholars argue that such deference could enable executive dominance in crisis, hindering the judiciary’s capacity to uphold constitutional

principles.[24] This critique reflects broader concerns about balancing public health measures and the protection of individual rights.[25]

Furthermore, the court of appeals dismissed the human rights claim as academic following lockdown regulations’ expiration despite acknowledging their significance in public interest.[26]  In Dolan, the court limited appeals to ultra vires argument categorising human rights claim as academic.[27] Critics argue that delayed judicial reviews cannot effectively address ongoing rights violations during a fast-paced crisis.[28] This has generated debate about the effectiveness of judicial review where regulations expire before full scrutiny can occur.[29] The court’s reluctance to consider those claims might discourage timely challenges, favouring executive flexibility over safeguarding individual rights.

Constitutional Significance

The Dolan case significantly impacts state governance by enhancing executive discretion while demonstrating a restrained approach to judicial oversight.[30] The court of appeal’s deference to executive decisions and limitation on judicial review of lapsed regulations like human rights empower the government to act without immediate challenges, especially during a crisis.[31] This judgment provides the state with increased flexibility to implement emergency measures but also threatens to undermine public faith in its dedication to human rights and constitutional protections.[32] The decreased judicial scrutiny may enable the government to undertake potentially extensive actions without apprehension of legal repercussions, highlighting the tension between public health imperatives and constitutional protections.[33]

In conclusion, the Dolan case illustrates the tension between emergency governance and constitutional protections.[34] The court of appeal’s support for executive authority and dismissal of post-expiry claims threaten accountability and judicial review. Furthermore, the absence of proportionality analysis indicates a hesitance to address rights during emergencies. The case illustrates the continuing challenge of ensuring that emergency governance operates within constitutional boundaries while allowing sufficient flexibility to respond to public health threats.[35]

Bibliography

Primary sources

legislation

Civil Contingencies Act 2004

Public Health Act 1984

Cases

R (RMO) v Secretary of State for the Home Department[2024] EWHC 1826 (Admin)

R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605

Liversidge v Anderson [1942] AC 206

Vavřička and Others v Czech Republic App no 47621/13 (ECtHR, 8 July 2021)

Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980)

Secondary sources

journals

John Yap and Nicholas U Jin, ‘R (Dolan) v Secretary of State for Health and Social Care: Legality in the Time of Coronavirus’ (2021) 10 Oxford University Undergraduate Law Journal 172

Bruce Chen, ‘COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A Comparative Analysis’ (2023) 44(1) Statute Law Review 1

Websites

R.M-G. Scott, ‘Balancing Upstream and Downstream Scrutiny of Government During National Emergencies’ (UK Constitutional Law Blog, 21 September 2021) https://ukconstitutionallaw.org/ accessed 20th February 2026

Tom Ginsburg and Mila Versteeg, ‘The Bound Executive: Emergency Powers During the Pandemic’ (2021) 19(5) International Journal of Constitutional Law 1498, https://doi.org/10.1093/icon/moab059

[1] R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605.

[2] R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605.

[3] Civil Contingencies Act 2004.

[4] Public Health Act 1984.

[5] R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 3857 (Admin).

[6] Public Health Act 1984.

[7] R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605.

[8] R (RMO) v Secretary of State for the Home Department[2024] EWHC 1826 (Admin).

[9] Ibid.

[10] R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605

[11] John Yap and Nicholas U Jin, ‘R (Dolan) v Secretary of State for Health and Social Care: Legality in the Time of Coronavirus’ (2021) 10 Oxford University Undergraduate Law Journal 172.

[12] Liversidge v Anderson [1942] AC 206.

[13] Ibid.

[14] John Yap and Nicholas U Jin, ‘R (Dolan) v Secretary of State for Health and Social Care: Legality in the Time of Coronavirus’ (2021) 10 Oxford University Undergraduate Law Journal 172.

[15] John Yap and Nicholas U Jin, ‘R (Dolan) v Secretary of State for Health and Social Care: Legality in the Time of Coronavirus’ (2021) 10 Oxford University Undergraduate Law Journal 172.

[16] R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605.

[17] Ibid.

[18] Ibid.

[19] Vavřička and Others v Czech Republic App no 47621/13 (ECtHR, 8 July 2021).

[20] R.M-G. Scott, ‘Balancing Upstream and Downstream Scrutiny of Government During National Emergencies’ (UK Constitutional Law Blog, 21 September 2021) https://ukconstitutionallaw.org/ accessed 10th April 2025.

[21] Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980).

[22] R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605.

[23] John Yap and Nicholas U Jin, ‘R (Dolan) v Secretary of State for Health and Social Care: Legality in the Time of Coronavirus’ (2021) 10 Oxford University Undergraduate Law Journal 172.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] R(Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605.

[28] Tom Ginsburg and Mila Versteeg, ‘The Bound Executive: Emergency Powers During the Pandemic’ (2021) 19(5) International Journal of Constitutional Law 1498, https://doi.org/10.1093/icon/moab059.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] ibid

[34] ibid

[35] Bruce Chen, ‘COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A Comparative Analysis’ (2023) 44(1) Statute Law Review 1.