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Legal Challenges by Airlines to UK Government plans for 14 day quarantine

08 Jun 2020

 From today, Monday 08.06.2020, the UK government is imposing a quarantine on fights. The policy will bring in a 14-day quarantine for anyone arriving in the UK from any country. The policy will not apply to fights arriving from the Republic of Ireland. The policy is designed at reducing further outbreaks of the C19 virus in the UK from third countries.
 
The policy requires that persons travelling into the UK:
(1) give their journey and contact details.
(2) remain at that address for the first 14 days of their stay.
 
Today IAG (International Airlines Group) and Ryan Air wrote to the government under the Pre Action Protocol procedure for Judicial Review.
 
The letter is said to be a “Pre Action Protocol Letter”. I have not seen the letter in full.
 
The Protocol Letter is a final procedural step before a party commences legal action. In short IAG and Ryan Air are serving notice on the government that they intend to take legal action if the Rules are not dropped or significantly altered.

Travel Weekly are reporting (yesterday) that part of the Letter reads as follows:
 
“We challenge the UK government on a number of defective measures, including (i) the fact the this quarantine is more stringent than the guidelines applied to people who actually have COVID-19, (ii) that if you live in Scotland to date the rules won’t apply, (iii) that, for example, if you are a French or German worker commuting weekly to the UK you will be exempted, and (iv) that the UK government is banning people from countries with lower R rates than the UK.
 
Source by Ben Ireland Jun 7th 2020, 10:26
 
Judicial review is a very limited remedy. There are three main grounds (there are others)
 
(1) illegality, where a governmental department or agency exercising the power of government has acted outside its powers (Ultra Vires is the legal term)
(2) procedural unfairness, where some error in, say, consultation has occurred.
(3) and irrationality – where the action is so unreasonable that no authority, properly informed, could possibly have reached the decision made.
 
What is being alleged therefore by Ryan Air and IAG would seem to be
(1) failure to consult with those affected by legislation and
(3) irrationality.
 
If we look at the Quarantine Rules as they stand, there are some major issues….
 
The plans are detailed and complex. Some 42 categories of persons are exempted from the requirements. So healthcare, defence personnel, persons requiring treatment and certain employment related categories are exempted.
 
There are penalties for those who give details which are manifestly false. But as to someone’s employment status, there are no rules on what evidence is satisfactory. No provisions are written into the rules which detail how the Home Office may check an individual is staying at an address given. The Border Forces have very little guidance.
 
The Rules lack provisions on honest mistake, for example.
 
No requirement to use private transport. So the point has been made that a passenger entering Gatwick can get onto the Gatwick service stopping at all points to Reading.
 
Against this background we can see how much the Rules rely on the good faith and the understanding of the Rules by people coming into the UK. As a lawyer, I question the extent to which these detailed provisions give themselves to clear and simple understanding on the part of those intending to travel to the UK. I am not qualified to state whether the policy is an effective one in terms of public health. I also accept the tension between (i) making rules –any rules- comprehensive in terms providing for contingencies and (ii) making the rules easily understood by those bound to abide to them. Law makers have struggled with this since law was invented and the Common Law is evidencing this as it expands to deal with new areas and re-visiting settled doctrines.
 
HMG state that they are acting on scientific evidence. Well, this may be so. I have no reason to doubt it. I have not seen this evidence and I think the court will want to see it. The court will also be interested in the fact that the Rules will be subject to a three weekly review.
 
Based on the evidence I have seen and on the Rules as I have read them, Ryan Air and IAG have an arguable case.
 

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