The COVID-19 pandemic has brought with it a welter of emergency legislation, much of it highly damaging to private business interests. However, as a High Court ruling concerning international travel restrictions showed, the law-making process has throughout been subjected to rigorous review by the judiciary.
With the support of five international airlines and travel operators, Manchester Airports Holdings Limited – which owns Manchester, Stansted and East Midlands Airports – mounted a judicial review challenge to amendments to international travel regulations that came into force on 8 June 2021.
They made changes to the ‘traffic light’ system whereby overseas travel destinations are categorised as red, amber or green, depending on the government’s assessment of infection risks. Particularly controversial was the decision to move Portugal from the green to the amber category, thereby requiring holidaymakers returning from that country to self-isolate for 10 days. Several other popular destinations, including Egypt and Sri Lanka, were added to the red category.
The company argued that the Secretary of State for Transport was obliged to publish his reasons for introducing the amendments and to give a detailed account of the methodology used to justify them. His duty of transparency obliged him to publish all data relied upon. Statements made by the Secretary of State at a press conference were said to have given rise to a legitimate expectation that all such information would be placed in the public domain.
Dismissing the challenge, however, the Court noted that, in the context of the pandemic, deciding what measures should be applied for the protection of public health is self-evidently a matter for which the government, not judges, bear primary responsibility. The Court’s role was limited to determining the lawfulness of the decision-making process and it was not for judges to make, or assess the correctness of, measures taken to combat COVID-19.
Correct procedure had been followed in that, after being made by the Secretary of State, the amendments were laid before Parliament and subject to scrutiny by the legislature. Absent some specific reason, no further legally enforceable obligation should be superimposed requiring the Secretary of State to provide reasons or further information and data relied upon in making the secondary legislation.
A risk assessment document had been published by the Secretary of State on 11 May 2021, explaining the methodology that would be applied when decisions were taken as to whether any country should appear in the green or red categories. Although the company criticised the document as insufficiently detailed, whether or not to publish more data was a matter of political judgment, not legal obligation.
Statements made by the Secretary of State at the press conference, when properly understood, were not capable of giving rise to the legitimate expectation alleged. The company’s plea that the amendments violated its human right to peaceful enjoyment of its private property also fell on fallow ground. The Court accepted that the Secretary of State was under a duty to keep the traffic light system under review but found that, to date, that obligation had been met in a lawful manner.