Fly Me To The Courts: Airlines’ challenge to UK quarantine policy progresses to the Courts

July 2, 2020

3 min read

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What's going on here?

The UK’s three biggest airlines, British Airways, easyJet and Ryanair, have filed a High Court action for judicial review against the government over the introduction of its 14-day post-travel quarantine policy.

What does this mean?

The restrictions, which the government claims will help prevent a second wave of COVID-19 cases imported from abroad, require people arriving in the UK to quarantine for 14 days. 

Airlines had hoped that the government’s aid to the retail sector (evidenced by the re-opening of high street shops) would similarly be extended to the aviation sector. But these hopes were dashed by the policy, with British Airways, easyJet and Ryanair claiming that it will deter passengers’ travel plans and have a devastating effect on tourism and the wider economy compared to the alternative options. These alternative options include “air bridges”, which would remove the requirement of quarantine for passengers arriving from some designated European countries, or targeting passengers for quarantine who enter from “high-risk” countries. 

This judicial review only worsens the already strained relationship the government has with airlines. For example, the government’s obligation to consider environmental impacts can obstruct airlines’ plans (as seen with the Court of Appeal’s recent judgment on the Heathrow third runway, which can be read about here). But with no response to the formal pre-action protocol letter sent on 8 June, High Court proceedings have been issued by the airlines.

What's the big picture effect?

Generally, judicial review is not a challenge to the result of the law, but rather the way in which the decision behind the implementation was made. Although there are four main grounds for making a judicial review claim, the airlines in this case are likely to rely upon procedural unfairness and irrationality. This is because the complaints are two-fold. Firstly, the government failed to consult the aviation industry prior to introducing the Health Protection (Coronavirus, International Travel) (England) Regulations 2020; and secondly the delayed nature of the policy’s introduction which comes as other EU countries are in the process of re-opening borders post-lockdown is “illogical”, as described by the chief executive of the International Airlines Group, Willie Walsh. 

Because irrationality has an extremely high test, defined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] as “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”, the airlines are more likely to rely on procedural unfairness, a key element of which is the right to be heard.

Unlike in commercial litigation cases, a preliminary review is conducted by the court in judicial review proceedings to determine whether the case can proceed. If assessed as sufficiently urgent, the airlines could potentially seek an injunction preventing the enforcement of the policy (although this process is notoriously expensive). Current reports suggest that the policy is not being thoroughly enforced and that many arriving passengers are unaware of it, which could reduce the airlines’ chance of winning. 

This is not the first government decision to be challenged. In September 2019 a challenge to the prorogation of parliament was brought all the way to the Supreme Court, which found the government’s decision unlawful (you can read more about this here). Perhaps as a result, the Conservative Party announced plans to reform the process of judicial review to ensure it does not “conduct politics by another means”.

Although delayed by COVID-19, this frustration of the government’s plans might provide further motivation to commence the reformation process. But as judicial review and the ability to scrutinise public authorities is an integral part to the rule of law, these plans, just like the 2013 reforms which diminished judicial review, will likely attract criticism.

Report written by Keir Galloway Throssell

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