By Lutchmayah Koorlapee
Readers would be familiar with the quote, ‘Eat, Pray, Love’ which elevates religious worship to the same rank as the other two fundamental human needs it accompanies in the adage. Legally, the human right to freedom of religion, joins the long list of human rights curtailed by the Coronavirus-related restrictions in England and Wales, commonly known as the ‘lockdown.’
In the case of Tabassum Hussain and the Secretary of State for Health & Social Care, the court considered whether the human rights infringement occasioned, would suffice for an application for interim relief. Mr Justice Swift gave permission for the case to move to a full hearing but did not provide interim relief which would have allowed for prayers to be carried out during Ramadan earlier this year.
Mr Hussain sought to challenge Health Protection (Coronavirus Restrictions) (England) Regulations SI 202/350, in particular Regulation 5(5) which required places of worship to be closed, safe for permitted uses. It is of note that regulation 6(2)(k) enabled ministers from different religions to attend their place of worship without creating a corresponding right for members of the public.
It is equally of note that at paragraph 7, Mr Justice Swift notes that the claimant was seeking to allow at least some to be allowed to pray at the Mosque. If that had been permitted, it raises the question of who would have been allowed, and what the determining factors would have been. It is likely the claimant was being cautious, and perhaps had it been allowed, those at high risk would still have been prevented from attending communal prayers.
To succeed, the claimant was required to show that there was a real prospect he would succeed at obtaining a permanent injunction at trial. This includes a consideration of the public interest, namely the protection of the wider public from the virus. At paragraph 10, Mr Justice Swift noted that all religions requiring prayers were equally affected. In reality however, given the overlap of the claim with Ramadan, it is clear that the effects were harsher on those of Muslim faith.
Moreover, later in the judgement it is noted that applying the injunction to all places of worship would pose too great of a risk to public health. In this way, this has the perverse effect that, seeking an injunction for one denomination only might give the illusion of preference, whilst seeking it for everyone would be deemed too dangerous.
In determining the extent of the interference, the court remarked that it affected only one aspect of worship, was finite in length, and the evidence from the British Board of Scholars and Imams suggested that the circumstances meant that communal prayers should not take place. Interestingly, the claimant also attempted to argue that the measures were disproportionate, on the basis that other activities such using open spaces for recreation or visiting homes for purchase, were allowed.
This attempt to question the order of priorities failed however, with the court affording a wide margin over “complex political assessments” and denoting communal prayers as having a qualitatively higher risk of transmission of the virus.
Accordingly, it was deemed that the nature and extent of the interference were not sufficient to justify interim relief, although the claim was deemed sufficiently arguable for the purposes of judicial review.
Despite the general application of the rules and guidance, certain factors signify that its effects are felt more deeply by certain communities.
Thus, in gauging the impact of the infringement of Article 9, it is important to consider the requirements of the religion, including prayers and how they are to be carried out; the centrality of each requirement to the faith of the observant; any overlaps with major religious celebrations; and the suitability of alternative arrangements proposed.
The recent case of Dolan v Secretary of State for Health and Social Care is potentially of interest to the issue, with the claimant alluding to her inability to attend mass during the lockdown. The treatment of the issue however was trite, given that amendments to the Coronavirus Regulations were seen as potentially rendering them academic.
Nevertheless, the notion that the argument made in Hussain was arguable in a full hearing, was cited and not disapproved.