Coronavirus NI: Judge dismisses challenge to closures brought by hair and beauty sectors

Hairdressing and beauty services in NI have been forced to closeHairdressing and beauty services in NI have been forced to close
Hairdressing and beauty services in NI have been forced to close
Close contact services in Northern Ireland failed today in a legal challenge to being forced to shut down for four weeks.

A High Court judge dismissed a case brought by hair and beauty businesses required to lock their doors as part of Stormont’s attempts to curb the spread of Covid-19.

Traders claimed it was an arbitrary and disproportionate step taken with no proper explanation which has put jobs at risk and indirectly discriminated against women working in the sector.

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But Mr Justice McAlinden ruled that they had no chance of succeeding in the challenge amid unprecedented efforts to fight a “recalcitrant” virus.

He said: “Under no circumstances could it be said that the actions of the Executive in promoting this wide-ranging, overarching response, with a view to achieving the absolutely necessary aim of combating this infection, could be described as being manifestly without reasonable foundation or justification.”

Emergency judicial review proceedings were brought after Department of Health regulations imposed a 28-day closure of salons from October 16.

Barber and tanning shop owner Jason Shankey, Roamer Health and Holistic Clinic, and DKY Hair Company brought the case on behalf of the wider close contact industry in Northern Ireland.

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Their barrister, Fiona Doherty QC, argued that the Executive decided on the shutdown without sufficient reasons.

She compared the estimated 0.05 cut in the virus’s reproduction rate (R number) through the restrictions imposed on the sector with a potential 0.1 reduction from closing churches and community centres.

“Difficult decisions have to be made by the Executive, but that doesn’t mean they are immune from scrutiny,” the barrister insisted.

At one point Mr Justice McAlinden suggested the public’s health and wellbeing could have been a factor in closing those businesses rather than places of worship.

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“Might the reason be the ability to exercise their deeply held religious beliefs in a time of crisis (was regarded) as more important and more significant than the need to get their hair done?” he asked.

Pressing counsel on bringing a legal challenge during a second surge in the virus, the judge pointed out that France has gone into a second complete lockdown, with Germany set to follow suit.

“Northern Ireland has the highest rates (of infection) in the UK, and parts of Northern Ireland have some of the highest rates in Europe,” he said.

“Surely when we are in the midst of such an emergency it’s not for the court to dive in and try to second-guess the actions of the Executive when it’s quite clear... we still don’t know how to deal with this infection.”

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Ms Doherty insisted that it was the role of the judiciary to scrutinise the process.

“We are not talking about Covid deniers, we are not talking about people complaining about wearing masks on public transport,” she said.

“We are talking about people whose businesses have been closed and could be in serious trouble as a result.”

Counsel submitted that the reasons why hair and beauty salons were chosen has not been properly disclosed.

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“There are serious, debilitating and existential threats to the applicant’s businesses and the livelihoods of people who work for them,” she added.

“When those are the risks they are entitled to demand that the court performs the role it is established to perform, which is to provide a check, if needed, on the use of Executive power.

However, Mr Justice McAlinden rejected claims that refusing to grant leave to seek a judicial review would be an abdication of responsibility to hold government to account.

Pointing to the separation of executive and judicial powers, he also emphasised the efforts being made by the multi-party Stormont administration in response to the crisis.

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“There may well be some arguments in relation to the choice of measures made and taken by the Executive in this particular instance,” he acknowledged.

“But on a global appreciation appreciation of the issues at stake, not only for these individuals but for society at large, and in particular vulnerable members of our society whose Article 2 rights (to life) are crucially engaged in this pandemic, the court concludes that the application for leave fails on the basis that there are no reasonable prospects of success.”

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