Legal challenge to shutdown of beauty industry in Northern Ireland dismissed

A legal challenge to the shutdown of Northern Ireland’s beauty industry has been dismissed.

A group representing close contact workers set out their case at the Royal Courts of Justice in Belfast on Thursday, arguing that the decision to close their businesses was “disproportionate” and “arbitrary”, and has put jobs at risk.

The Stormont Executive took the decision to close hospitality and beauty industry businesses for four weeks as part of an effort to halt a dramatic rise in cases of Covid-19.

Barber and tanning shop owner Jason Shankey, Naomi Holmans of Roamer Holistic Health and Beauty, and Michelle Young of DKY Hair Company said they were taking the case on behalf of the “whole close contact industry”.

Fiona Doherty QC, acting for the applicants, said the most recent closures, coming after lockdown earlier this year, have “extreme consequences” for the business owners, and an “adverse effect of the viability of up to 40,000 jobs in the sector”.

She contended there has been no evidence in relation to their businesses of any transmission of the virus, and pointed out that evidence disclosed by the Department of Health showed a potential reduction of just 0.05 to the virus reproductive number by closing the sector.

“What has not been closed, for example, is churches, community centres, which could lead to a reduction of 0.1 in the R rate and would have, in our respectful submission, a much less adverse impact on people’s livelihoods,” she said.

“There is no doubt that difficult choices have been made, we haven’t shied away from the fact that these are difficult decisions that have to be made by the Executive, but that doesn’t mean that the decisions are immune from scrutiny.”

Mr Justice McAlinden asked whether it was for the courts to “dive in to try to second guess the actions of the Executive” when the country remains in a “learning stage” about the virus.

Ms Doherty responded: “In times such as this, it is exactly the time for the court to intervene, if necessary, and to show that it stands as an arbiter of the use of Executive power.

“We are not talking about Covid deniers, we’re not talking about people complaining about wearing masks on public transport, we’re talking about people whose businesses have been closed, who have put evidence before this court that their businesses could be in serious trouble because of it.”

Responding for the Northern Ireland Executive, Tony McGleenan QC said coronavirus regulations are made on an emergency basis for a time-limited period, with appropriate mitigations to offset the impact on businesses.

“The regulations were made by the Department of Health but the decision itself has come before the Northern Ireland Executive, a unique constitutional arrangement of multi-party government where all parties have been involved under various ministerial portfolios in the making of this decision,” he said.

He said published evidence around what measures could reduce the R number should be read with other publicly available documents.

“It is right that there is scrutiny and it is right that the applicant asks these questions and that the department is required to respond in the way it has done,” he said.

“We have in our response acknowledged that there are significant issues raised and we have sought to answer them.”

Reading his findings, Mr Justice McAlinden referred to an “unprecedented state of affairs that our society presently experiences brought about by the ongoing pandemic”.

“There may well be some arguments to be had in relation to the choice of measures taken by the Executive in this particular instance, but on a global analysis of the case, and on a global appreciation of the issues at stake, not only for these individuals, but for society at large and in particular vulnerable members of our society… the court concludes that the application for leave fails on the basis that there are no reasonable prospects of success,” he said.

“The basis for that is that on the information that the court has before it, which it considers appropriate and detailed enough to enable them to make its decision, the decision-making process of the Executive cannot be said, or could not be said in any circumstances, to be manifestly without reasonable justification or foundation.”