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]. The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 had been made on 26 March 2020 and had taken immediate effect. In conjunction with the lockdown announced on 23 March 2020, Regulation 5(5) provided that places of worship had to close during the emergency period except for limited purposes such as funerals: the prohibition on collective worship (PCW). The PCW was subsequently withdrawn and ceased to have effect from 4 July 2020 [5[. This judicial review claim had been issued on 19 May 2020 [6].

Fordham J began by “going back to basics”:

“[2] Judicial review is a supervisory jurisdiction at common law, with an important statutory overlay, and an important procedural rule-book. The supervisory jurisdiction applies to secondary legislation, including the regulations which imposed the PCW. The statutory overlay includes the HRA, which imposes duties on public authorities to act compatibly with Convention rights, and duties on courts to determine whether they have done so. Among the Convention rights is Article 9 … Judicial review’s essential purpose is to vindicate the rule of law and promote the public interest, securing accountability of public authorities to objective legal standards (including under the HRA), while at the same time recognising the primacy of each public authority’s (contextually-applicable) ‘latitude’ to evaluate for itself questions of judgment, appreciation and policy. Procedurally, the supervisory jurisdiction operates using a set of important (contextually-applicable) principles, themselves designed to promote the interests of justice and the public interest.”

[3] Three of the procedural principles of judicial review are particularly relevant … (1) Where a judicial review claim is or has become ‘academic’, the judicial review Court may decline to determine the legal merits of the claim; but may proceed to do so if there is a good reason in the public interest … (2) The Court has the power to strike-out a judicial review claim … and may do so ‘in exceptional cases’ where to do so is ‘appropriate’ in the light of grounds which have ‘arisen after the date on which permission was granted’ … (3) There is a need for ‘procedural rigour’ in judicial review, one manifestation of which is the general disinclination (though ‘there is no hard and fast rule’) to allow ‘rolling judicial review’ where ‘fresh decisions, which have arisen after the original challenge’ are ‘sought to be challenged by way of amendment’ of the pleaded judicial review grounds…”

He concluded that it was not in the public interest to allow the claim to proceed further by means of a “historic” analysis of the justification for closing places of worship in the circumstances as they were in and after March or May 2020, on the basis

“that the claim is fact-specific and context-specific; that resolution would be of the ‘historic’ question of past Article 9-compatibility of the past PCW; and that the ‘nettle’ being grasped would not be prospective resolution of the legality of a future PCW, so as to be ‘ahead of the curve’ in relation to any future PCW in future circumstances” [31].

If places of worship were to be closed under future restrictions, the point at issue could be tested in an appropriate challenge at that stage [32]. He was satisfied that there was a clear-cut reason why a substantive hearing was inappropriate, in light of the change in circumstances after the original petition, and it was “one of those rare and exceptional cases” where it was appropriate to strike-out the claim [35].

Cite this article as: Frank Cranmer, "Article 9 and the COVID-19 lockdown in England: Hussain again" in Law & Religion UK, 7 February 2022, https://lawandreligionuk.com/2022/02/07/article-9-and-the-covid-19-lockdown-in-england-hussain-again/

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