Article 9 and the COVID-19 lockdown in England: Hussain again

In R (Hussain) v Secretary of State for Health & Social Care [2020] EWHC 1392 (Admin), the Chairman of the Executive Committee of the Jamiyat Tablighi-Ul Islam Mosque, Bradford, sought interim relief in an application for judicial review of the Health Protection (Coronavirus Restrictions) (England) Regulations SI 202/350, directed specifically to the effect of Regulations 5(5) and 5(6), 6 and 7, the effect of which was to make it impossible to hold Friday prayers. Mr Hussain contended that the ban contravened his Article 9 right to manifest his religion. Swift J refused the application, on the grounds that there was no realistic likelihood that Mr Hussain’s case on Article 9 would succeed at trial. The infringement of his Article 9 rights was not disproportionate, and he noted that in reaching that conclusion he had taken account of the requirement under section 13 of the Human Rights Act 1998 to pay particular regard to Article 9 rights. He concluded that the balance weighted heavily against the grant of relief:

“Further, the logic of this application is not just that it would apply to the Barkerend Road Mosque, but that it would apply to all collective worship pursuant to religious obligations at all places of worship. Permitting that poses too great a risk to the balance between restricted activities and permitted activities concerning social contact that is struck by the 2020 Regulations to permit of the possibility of a grant of interim relief as a matter of the balance of convenience” [27].

We noted the judgment here.

The matter returned to the Court in R (Hussain) v Secretary of State for Health And Social Care [2022] EWHC 82 (Admin) by an application issued a year later – on 28 May 2021. The Secretary of State asked the Court to strike out the claim on two grounds: that it was inappropriate for substantive determination, having been rendered “academic” as a result of subsequent changes in the relevant Regulations, and that there had been a serious failure of diligent pursuit of the claim [1]. Continue reading