Judicial Review during the Covid-19 Pandemic

The public health crisis during the COVID-19 pandemic subjected judicial review to competing pressures. There was pressure for courts to be accommodating to governments both substantively and procedurally, for judicial review to be minimised and restricted and for powers to be broadly and generously construed. On the other hand, the unparalleled intrusions on individual freedoms and the need for hurried rule-making with little political scrutiny called for heightened vigilance and might have justified the courts developing a role acting in partnership with Governments in ensuring COVID-19 rules were lawful, reasonable and proportionate. The reported decisions in England, Wales and Scotland reveal the dominance of the first of these pressures and they paint a markedly deferential picture. Judicial rulings had negligible impact on COVID-19 restrictions. Courts did not act in partnership with the Government in shaping COVID-19 rules. The system of judicial review nonetheless had impact through what we described as its “second look” function: providing a mechanism for triggering public servants to look again at a decision and amended or change them to provide a sounder balance between public health imperatives and competing rights and interests.