Held, permission to proceed with the claim on the ultra vires ground granted, but claim dismissed. (1) Since the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 had now ben repealed, the claim for judicial review had clearly become academic. However, since the challenge on the grounds of vires (i) raised a discrete point of statutory construction, (ii) did not require detailed consideration of the facts (iii) was likely to need to be resolved in the near future, for example if it were to be raised by way of defence to criminal proceedings in the magistrates’ court and (iv) remained a live issue since the Secretary of State continued to make new regulations under the same enabling power, there was a public interest in the court determining the issue of vires. Accordingly, permission was granted to bring the claim which would be retained to be determined by the court rather than being remitted to the High court for a substantive hearing (paras 39, 41, 42, 115).

(2) On a true construction of section 45C of the Public Health (Control of Disease) Act 1984 the Secretary of State had been empowered to make the Regulations under challenge. Section 45C(1) and (2) conferred a broad power upon the Secretary of State to make regulations for the purposes of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infections or contamination”. The breadth of that power was not to be cut down by the more particular provisions of subsections (3) and (4). The words in section 45(C)(3)(c) were themselves broad and empowered the Secretary of State to impose restrictions or requirements in relation to persons or premises in response to a threat to public health. The reference to the Secretary of State imposing a special restriction or requirement in section 45C(4)(d) did not serve to limit the Secretary of State’s power to that conferred upon a justice of the peace to impose a restriction or requirement on either an individual or group of individuals under section 45G. Furthermore, the examples of restrictions given in subsections (3) and (4) were clearly not intended to be exhaustive and were not capable of cutting down the generality of the power conferred on the Secretary of State earlier in section 45C. Construed in that way, the new regime introduced into the 1984 Act in 2008 served the statutory intention of updating the legislative scheme to enable it to cater for the possibility of a much greater public health response which might be needed in order to deal with a modern epidemic. Accordingly, the Regulations were not ultra vires (paras 59–65, 71, 78, 115

Per curiam. (i) There is a need for appropriate procedural rigour to be applied in judicial review cases. Procedural rigour is important not for its own sake, rather it is important (i) in order for justice to be done, (ii) that there must be fairness to all concerned, including the wider public as well as the parties and (iii) that everyone should know where they stand, so that, for example, the defendant can properly prepare evidence in a timely fashion (paras 116–117).

(ii) The trend towards what has become know as a “rolling” approach to judicial review, in which fresh decisions, which have arisen after the original challenge and sometimes even after the first instance judgment, are sought to be challenged by way of amendment is to be deprecated. Although there is no hard and fast rule, it will usually be better for all parties if judicial review proceedings are not treated as “rolling” or “evolving”, particularly in circumstances where a challenge is made to secondary legislation which have been amended, sometimes very quickly, and where the issues raised by the grounds will often turn on the state of the evidence as it was at a particular time (para 118).

(iii) Despite the requirement in paragraph 6.3.1.1 of the Administrative Court Judicial Review Guide 2020 that the statement of facts and grounds “should be as concise as possible, while setting out the claimant’s arguments” a culture has developed in the context of judicial review proceedings for there to excessive prolixity and complexity in what are supposed to be concise grounds for judicial review, which as often or not serve to conceal rather than illuminate the essence of the case being advanced. Notwithstanding the clear wording of the Guide, the time has come for the Civil Procedure Rule Committee to consider whether any amendments to the rules or practice direction governing judicial review claims are called for to contain this problem (paras 119–121).