On two occasions recently, the Administrative Court has considered the legality of the lockdown Regulations in England so far as they impinge on the right to freedom of thought, conscience and religion.
In R (Hussain) v Secretary of State for Health & Social Care  EWHC 1392 (Admin), the claimant, the Chair of the Executive Committee of the Jamiyat Tablighi-Ul Islam Mosque in Bradford, challenged the Health Protection (Coronavirus Restrictions) (England) Regulations (now superseded by the Health Protection (Coronavirus Restrictions) (England) (No.2) Regulations): in particular, Regulations 5(5) and (6), 6 and 7 [1 & 2]:
- Regulation 5(5) required that any person responsible for a place of worship had to keep it closed during the “emergency period’ save for permitted uses;
- Regulation 5(6) set out the permitted uses: funerals, the broadcast of acts of worship and the provision of essentially voluntary support services or urgent public support services;
- Regulation 6(1) set out a general prohibition on movement: no person during the emergency period was to leave or be outside the place where they lived “without reasonable excuse”;
- Regulation 6(2) provided a non-exhaustive definition of “reasonable excuse” and permitted ministers of religion and worship leaders only to go to their places of worship; and
- Regulation 7 prevented gatherings of more than two people in any public place, save for any of seven specified purposes – which did not include attendance at an act of worship.
For the purposes of the Regulations, Swift J was of the view that “without the benefit of full argument … a public place would naturally include a place of worship” . It was common ground that the effect of the restrictions was to prevent collective Friday prayers at the Mosque .
Mr Hussain sought an order prohibiting the enforcement of Regulations 5, 6 and 7 of the 2020 Regulations so far as they prohibited attendance at Friday prayers:
“The Claimant offers various undertakings with a view to following the Government guidance on social distancing, but the substance of the matter is a form of suspension of the mechanisms of enforcement, including criminal enforcement, contained in the 2020 Regulations” .
He argued that the Secretary of State’s failure to make provision for him to open the Mosque for communal Friday prayer contravened his Article 9 right to manifest his religious belief in worship, teaching, practice and observance, though because the Regulations applied to all places of worship, there was no unlawful discrimination claim under Article 14 .
Swift J refused the application for interim relief [1 & 28]:
- there was no suggestion that Islam had been treated differently from other faiths because all religions that had an obligation to undertake communal prayer or worship were equally affected  ;
- though Mr Hussain’s inability to attend communal Friday prayers was a significant interference with his Article 9 rights, it did not make it impossible for him to manifest his religion ;
- the duration of the interference would be finite ; and
- the British Board of Scholars and Imams, in a briefing document published on 16 March 2020, had concluded that, in the present circumstances, the obligation on British Muslims to attend Friday prayers should be suspended [14-16].
Mr Hussain’s own religious belief differed from the majority view stated by the British Board of Scholars and Imams, and while his personal beliefs were important,
“the overall fair balance can recognise the indisputable point that the Claimant’s beliefs as to communal Friday prayer in current circumstances are not beliefs shared by all Muslims” .
Swift J was of opinion that “were this matter to go to trial, it is very likely that the Secretary of State would succeed on his submission that interference with the Claimant’s Article 9 rights as a result of the 2020 Regulations is justified”  and there was no realistic likelihood that the claim would succeed at trial:
“In reaching this conclusion I have taken account of the requirement under section 13 of the Human Rights Act to pay particular regard to Article 9 rights” .
That said, however, though he refused the application for interim relief, he was satisfied that there was a sufficiently arguable case to grant permission to apply for judicial review .
In Dolan & Ors v Secretary of State for Health And Social Care & Anor  EWHC 1786 (Admin), Simon Dolan, Lauren Monks and AB, a pupil at a school, sought permission to bring proceedings to challenge the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, as amended, more widely. The second claimant, Ms Monks, was a Roman Catholic who wished to attend Mass .
In light of the judgment of Swift J in Hussain, Lewis J was “minded to consider that it was arguable that the restriction on the use of a Roman Catholic church for communal worship and the taking of the sacraments involves an interference with Article 9(1) of the Convention” and to permit that issue to proceed to a full hearing ; however, following the hearing on 2 July he learned that new Regulations had been made at on 3 July which appeared to permit places of worship to hold acts of communal worship for up to 30 people with effect from 4 July and “If that is correct, this aspect of the claim may have become academic” . He felt that It would not be right to reach any conclusion on that issue without first giving the parties the opportunity to make submissions on the relevance of the new Regulations, but that it was not necessary or desirable to delay judgment on the other issues.
He therefore adjourned consideration of the Article 9 point for further submissions but gave judgment on the other issues . The Article 9 point aside:
- the Secretary of State had the legal power to make the Regulations and in doing so had not fettered his discretion, had had regard to relevant considerations, and had not acted irrationally or disproportionately ;
- the claim to challenge the restrictions on movement and gatherings in the original regulations 6 and 7 and the challenge to the 18 March 2020 announcement relating to schools were academic because the regulations had been replaced ;
- the amended regulation 6 in force on 2 July 2020 requiring persons not to stay overnight other than where they lived was not even arguably a deprivation of liberty within the meaning of Article 5 ECHR ;
- though the Regulations in force on 2 July 2020 did restrict freedom of assembly and association, the context was a global pandemic of a highly-infectious, possibly fatal disease for which there was no known cure or vaccine; the Regulations would end after six months in any event, and in those possibly unique circumstances, there was no realistic prospect that a court would find them disproportionate ; and
- the Regulations did not, even arguably, breach the right to respect for private and family life under Article 8 ECHR or of the first claimant’s property rights under A1P1 .
In short, he refused the application to apply for judicial review on all grounds except on the Article 9 issue. He adjourned consideration of the Article 9 issue – whether any claim that the restrictions arguably involved a breach of Article 9 had become academic – for further submission .
For a full analysis of Dolan, see Dominic Ruck Keene, UK Human Rights Blog: Lockdown challenge — permission refused.