Latest reports suggest British Airways to mount legal challenge against the UK government over Covid-19 quarantine restrictions - judicial review and how to pursue it

Latest reports suggest British Airways to mount legal challenge against the UK government over Covid-19 quarantine restrictions - judicial review and how to pursue it

Coronavirus? Give us a break! Changes to holiday carry over following government amendments to the Working Time Regulations

Background

The owners of British Airways, IAG, have joined forces with Ryanair and EasyJet in an attempt to overturn the UK government’s decision to introduce new quarantine measures for travellers to the UK. The new measures, which came into force on Monday 8 June 2020, will mean that travellers arriving into the UK will be required to self-isolate for 14 days or face a £1,000 fine.

The government has come under heavy criticism from the aviation industry for failing to consult the industry prior to enacting the new legislation, “The Health Protection (Coronavirus, International Travel) (England) Regulations 2020” (the “Regulations”). The Regulations are the instrument used to bring the government’s new quarantine measures into force.

The Regulations will be effective for a period of 12 months from 8 June 2020 (pursuant to section 12(1) of the Regulations). Airlines UK, which represents the likes of British Airways (BA), Easyjet, Virgin Atlantic and Ryanair have said that the new quarantine measures “would effectively kill air travel”.

What is ‘Judicial Review’?

BA, EasyJet and Ryanair have indicated that they intend to seek a judicial review of the government’s decision to implement the new quarantine rules in an attempt to put a stop to the new measures.

Put simply, judicial review is a process whereby a decision of a public body (e.g. local or central government) can be challenged – albeit on relatively limited grounds - to ensure that they acted lawfully and fairly. It is the decision-making process itself that is subject to challenge rather than the merit of the decision itself.

The grounds for making a judicial review claim are constantly evolving but those which are currently available can be categorised under four heads: (i) illegality, (ii) irrationality, (iii) procedural unfairness and (iv) legitimate expectation.

It is likely that the airlines will seek to principally rely upon irrationality and procedural unfairness as grounds for seeking judicial review of the Government’s decision.  To date, the airlines’ complaints have been focused on (i) the Government’s failure to consult the aviation industry prior to introducing the new measures and (ii) the illogical nature of the Government’s decision to introduce the new measures in the aftermath of the peak of the COVID-19 pandemic.

So What Now?

According to news reports, formal pre-action protocol letter, the first step in challenging the Government’s decision to introduce the new quarantine rules, was sent to the Government on 8 June 2020 by BA, EasyJet and Ryanair. This initial letter will give the Government the opportunity to respond to the airlines’ complaint before further action is taken by the airlines.

If the initial letter to the Government does not prompt the desired result (which is presumably the reversal of the quarantine measures) –the airlines will need to consider whether to issue judicial review proceedings against the Government in the High Court. The judicial review process as a whole can be lengthy and expensive and so the decision to proceed should not be taken lightly.

In judicial review proceedings, unlike in general commercial litigation cases, a preliminary review is conducted by the court to decide whether the case can proceed.

If the matter is deemed sufficiently urgent, it may be possible for BA, Ryanair and EasyJet to seek an injunction to prevent the enforcement of the new quarantine measures. That said, the threshold for doing so is high and applying for an injunction is a notoriously expensive process. Reports suggest that the quarantine measures are not being thoroughly enforced, with passengers arriving in the UK, who had cleared customs, suggesting they were unaware of them. This may impact upon the challenge.

Time limits

There is a small window of time in which an application for judicial review can be made (often, three months from the date of the decision but, in some cases, less than 30 days). It is therefore crucial that, those considering whether to apply for judicial review against a public body, seek legal advice without delay.

Reforms? Watch this space…

At the end of 2019, the Conservative party announced controversial plans to ‘update’ administrative law and to examine the process of judicial review, to make sure it fits its purpose and does not ‘conduct politics by another means’. The wider plans for reform are to be examined in a Constitution, Democracy and Rights Commission which was due to sit in the first year of Boris Johnson’s administration (though this timescale was set prior to the onset of the COVID-19 pandemic and is therefore likely to be subject to delay).

Contact our experts for further advice

View profile for Catherine PennyCatherine Penny, View profile for Elizabeth ButlerElizabeth Butler

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