In a decision that is extremely disappointing and of grave concern, the High Court has dismissed outright the claimant’s application for judicial review and to challenge the offer of Pfizer’s mRNA injectables to healthy five to 11 year-olds. Mrs Justice Farbey’s decision on July 19th 2022 reveals the court’s determined and seemingly now absolute reluctance to scrutinise Government decisions where Covid is involved.
As it stands, it also arguably leads to the conclusion that the court will not entertain challenge to any:
- ministerial decision said to be in response to a pandemic reliant on expert advice;
- advice or decisions of any expert regulatory body (certainly including the MHRA and JCVI);
- poor or inaccurate information being provided by the Government to the public about medical treatments (regardless of any misinformation or coercion).
There could be an exception, for example a case of obvious fraud, but it is hard to imagine those circumstances being discovered.
With the High Court declaring the application “totally without merit”, the only way forward now is to the Court of Appeal, but this carries great risk, since complete endorsement of this decision by that court would set a precedent that other judges would have to follow.
The decision with its limited reasons is here. On whether to appeal, and time is very short, the claimants will need to consider and reflect at least on the following extracts of the decision.
1. A challenge of highly detailed and scientific evidence.
The judge asserts the “well-established principle that the courts will be reluctant to interfere with multi-factorial decisions that raise broad questions of social policy and/or decisions that rest on highly detailed technical and scientific evidence”.
Fair enough, but the challenge was precisely that there was no highly detailed technical and scientific evidence in respect of key issues, such as risks from: endless production of toxic spike proteins gathering around ovaries, liver, spleen and other organs; toxic lipid nano particles crossing the blood brain barrier; damage to the immune system and increased risk to Covid infection; that the off-the-scale increase of vaccine injury reports may have a causal connection etc.).
The Government’s defence did not deny that many of these significant risks to children had not been taken into account at all, let alone by consideration of highly detailed technical and scientific evidence. Is it enough for the court that the Government effectively says, ‘No comment. We need not answer any specifics, just take our word for it we have experts who will have looked sensibly at everything’?
The judge wrote:
Given the evidence-based views of JCVI and MHRA, on which the Defendant was entitled to rely and which the court would take into consideration, the submission that the decision under challenge could not have been made by any reasonable public body is lacking in realism.
Even though the Government did not deny the existence of specific risks and would not say how they had been taken into account, the lack of realism lies in the lack of appreciating the apparent assumption that the JCVI and MHRA shall always and only have “evidence-based views” and shall be assumed to have obtained and taken all relevant evidence into account.
On that ‘realism’, the advice and decisions of these regulatory bodies are put beyond scrutiny and they may in practice act without accountability.
The judge adds:
The claimants’ submissions amount upon analysis to no more than a disagreement with the risks and benefits of vaccination for young children.
It is difficult to understand the reasoning for the judge’s analysis as none is given. The challenge was specifically not about disagreement with advice but claimed that specific risks had not been considered or factored into the advice – claims not denied by the Government. That is a very conventional judicial review challenge.
Complaint is made about recitation of evidence, but if the court is not provided with evidence of the existence of unconsidered risks, then the court would reject the claim on the basis it is without evidence. The court appears to be saying it may expect to be provided with evidence but might not explain what if any regard it has to it.
The judge continues:
This is upon analysis a collateral challenge to the work of the JCVI and/or MRHA. It is a factual challenge which is inapt to found a claim for judicial review against the Defendant. It is bound to fail.
This is principally a reference to the claim’s questioning the basis on which the MHRA says there is no signal to be seen in the off-the-charts increase of reports of adverse reactions, when no basis has been disclosed. The MHRA is hiding its reasoning and this was no collateral challenge. It was expressly a direct challenge to the work of the MHRA and JCVI. If they are not making reasonable assessments the minister cannot legally rely on them. Unfortunately, it seems that the court will not contemplate the possibility that scientists will make an unreasonable assessment of available information. It appears, instead, determined always to assume that a challenge to a factual assertion by an appointed expert body (of the type, for example, ‘there is nothing to see here’) cannot and will not be considered in judicial review proceedings.
3. Informed consent.
In relation to the provision of informed consent, the judge says the court “will not micro-manage the wording of information for parents which is a matter for the Defendant and those who advise him”.
It is not wording that matters, but the information. Or rather, the lack of it. Conveniently, none of that need be addressed as the court considers that “even if the available information gave rise to a generalised argument about informed consent, it would not apply to the claimants who are not vaccinated and who have not suffered any breach of a right that could or should be vindicated in judicial review proceedings. They would not benefit from the grant of any relief”.
If parents and unjabbed children cannot bring a challenge, who can and for what benefit? Children who have already been jabbed? It’s a bit late for them. And given the civil immunity from liability for damages in respect of the injection, where would the judge suggest there would ever be the required benefit the court requires of bringing a claim before it?
The dismissal of this aspect of the claim is tantamount to a green light for the Government to ignore long-established principles in relation to providing information about medical treatments, and for anyone administering them to do so as well and in ignorance.
4. What consequences?
The judge notes that the decision to mass-inject our five to 11s “has significant social and economic consequences for the United Kingdom”.
One might have imagined this observation would weigh in favour of giving some further consideration to the claim. Instead, it is used to criticise the claimants for not bringing the claim promptly enough. But what consequences does the court have in mind? Is it the fears and feelings of the adult population that need addressing promptly?
There is much that the court does not see the need to address at all or, if addressed, to explain.
In light of this decision, it is now also hard to imagine a successful challenge to a decision to inject day-old babies with the experimental mRNA injections, let alone the mass injection of six month to four year-olds which is being discussed right now by the JCVI.
The protection given by the principles of informed consent have primarily been established through decades of case law by the courts stepping in to protect the rights of individuals. Judges did so in accordance not only with the common law rights of U.K. citizens but the rights of European and world citizens, formulated since the Second Word War as a defence against the return of fascism and authoritarian regimes that was enabled by the subjugation of rights of individuals to the will of the government of the time.
By this decision the court has finally and fully stepped aside from protecting U.K. citizens. It has abandoned all restraints on the power of the Government when wielded in the name of Covid or any other pandemic that may be declared.
Children cannot expect any protection from the courts where they are put at risk in the name of Covid.
Stephen Jackson of Jackson Osborne Solicitors writes on behalf of the mother and child claimants. Further case updates will be posted here.