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‘No reason data can’t be provided’ MAG lawyers tell High Court

Lawyers acting for Manchester Airport Group (MAG) argued the government’s review of the traffic light system for international travel was unlawful in the High Court today.

In a claim brought against the secretaries of state for transport and for health, MAG’s lawyers sought a review of the necessity of restrictions on travellers returning from amber list countries.

They also sought an order to publish the scientific evidence on which decisions categorising countries are based, in particular in relation to the decision on June 3 to remove Portugal from the green list.

Tom Hickman QC, acting for MAG, noted the government’s Global Travel Taskforce report, published in April set out a framework for the traffic light system with “a clear and evidence-based approach . . . a risk-based approach”.

He quoted transport secretary Grant Shapps’ words at a press conference in May when the system was unveiled.

Shapps said then of the approach to the data behind decisions on countries’ status: “It’s about not just the prevalence of cases; it’s about the variants of concern; it’s about the ability of the country to test the quality of their data; how good their genome sequencing is and I think reassuringly all of that is going to be published this year, both the methodology and the data, so people can see themselves how and why particular countries . . are included.”

Hickman argued: “It’s a clear statement that the information will be published. He says both the methodology and data will be published. To any ordinary person that was a clear commitment.”

He told the Court: “Data are published, up to a point, where a country moves from green to amber. What is not published is the [data for] countries that don’t move.

“We don’t know the criteria for going into an assessment. We don’t know what the trigger is. We don’t know how many countries have been subject to risk assessments.”

Lord Justice Lewis told Hickman: “We understand why [the claimants] would like more information. We want to know why you think they should get more.”

Hickman said: “We say there is no reason why data can’t be provided for countries that do not change.”

The Lord Justice asked: “Are you challenging the decision on Portugal?”

Hickman replied: “We understand in broad terms why Portugal was moved – because of a variant of concern. But we don’t have any reason that explains why other countries remained on the amber list and we don’t know how many assessments there were or what the outcomes were.”

Lord Justice Lewis told him: “We are trying to understand what you want.” Later he told Hickman: “You say you see there was reason for moving Portugal. You may not agree but we know why it was moved. What is your legal challenge?”

Referring to Shapps’ press conference statement, the Lord Justice said: “This was a statement at a press conference and a response to a question. Is there a legitimate expectation that is capable of enforcement in a court of law?”

Hickman told the Court: “My client took what was said extremely seriously. . .  All I am seeking is the information that we believe exists.”

Mr Justice Swift told Hickman: “The way you put it, anyone could bring this claim.”

Lawyers acting on behalf of the government defendants argued Shapps’ statement at the press conference “has to be seen as an off-the-cuff comment in response to a journalist’s question” and explained that amber “is the default position” for categorising countries.

That led Mr Justice Swift to note: “Countries are amber because there is a presumption there is a risk unless there is evidence that either pushes it [a country] green or red.”

Lord Justice Lewis agreed: “The data is only for the countries that move [category].”

He subsequently noted: “It is a very important case.” But he told Hickman: “I am not convinced you have a challenge to the review of the restrictions. We want proof of your case . . . You have precious little evidence.”

Lord Justice Lewis ended the hearing by saying: “We want to think very carefully about this. We want to get it right. There will be other cases like this.”

The hearing took place with Ryanair, British Airways parent IAG, Virgin Atlantic, Tui UK and easyJet as interested parties.

Evidence presented on behalf of travel industry entrepreneur Clive Jacobs and SMEs in the industry was also accepted by the Court into the claim without any objections and was part of the evidence at the hearing.

A ruling is expected within days.

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