R Tabassum Hussain v Secretary of State for Health & Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 21 May 2020 |
| Neutral Citation | [2020] EWHC 1392 (Admin) |
| Date | 21 May 2020 |
| Docket Number | No. CO/1846/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 1392 (Admin)
THE HONOURABLE Mr Justice Swift
No. CO/1846/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Ms K. Brimelow QC, Ms G. Walton and Mr J. Bunting (instructed by Blacks Solicitors) appeared on behalf of the Claimant.
Sir James Eadie QC, Ms Z. Leventhal, Mr C. Knight (instructed by the Government Legal Department) appeared on behalf of the Defendant.
I have decided to refuse the application for interim relief. I will now give my reasons for that decision.
This is a challenge to the Health Protection (Coronavirus Restrictions) (England) Regulations SI202/350. The Claimant is the Chairman of the Executive Committee of the Jamiyat Tablighi-Ul Islam Mosque in Barkerend Road, Bradford (“the Barkerend Road Mosque”). The challenge is directed to the effect of regulations 5(5) and 5(6) of the 2020 Regulations, regulation 6 of those regulations and also regulation 7 of the Regulations.
Regulation 5(5) requires that any person who is responsible for a place of worship to ensure that “during the emergency period” the place of worship is closed save for permitted uses listed at regulation 5(6). The “emergency period” is defined at regulation to have started on 26 March 2020 and continue until such time as the relevant restriction or requirement imposed by the 2020 Regulations is terminated by direction of the Secretary of State. The purposes for which places of worship may be used are set out in regulation 5(6) as follows: funerals, the broadcast of acts of worship and the provision of essentially voluntary support services or urgent public support services.
Regulation 6 sets out restrictions on movement. Regulation 6(1) sets out a general prohibition: no person during the emergency period is to leave or be outside the place where they live “without reasonable excuse”. Regulation 6(2) provides a non-exhaustive definition of what comprises reasonable excuse. By regulation 6(2)(k) ministers of religion and worship leaders may go to their place of worship, but there is no corresponding provision permitting others to go to their place of worship.
Lastly, regulation 7 prevents gatherings of more than two people in any public place, save for any of seven specified purposes. Attendance at an act of worship is not one of the permitted purposes. There was some issue before me as to whether a place of worship was a public place; that is to say whether regulation 7 was relevant at all to the present application. The Claimant, as a matter of caution, proceeded on the basis that places of worship are public places and that for that reason regulation 7 needed to be challenged. My view, without the benefit of full argument, is that a public place would naturally include a place of worship.
In these proceedings the Claimant contends, and it is accepted by the Defendant Secretary of State that the effect of the restrictions I have mentioned is to prevent collective Friday prayer at the Barkerend Road Mosque and, specifically, the prayer known as the Jumu'ah, the Friday afternoon prayer. This state of affairs is not unique to the Barkerend Road Mosque. The provisions of the 2020 Regulations that I have described apply to all places of worship of all religious denominations. No person who wishes or, as a matter of their religion is required, to attend a collective act of worship at their mosque, church, synagogue, temple or chapel is permitted to do so.
The Claimant has been in correspondence with the Secretary of State on this matter since 22 April 2020. Ramadan commenced on Thursday 23 April 2020. The Claimant was particularly keen that members of the Barkerend Road Mosque be able to attend Friday prayers at the mosque in person during Ramadan. Tomorrow, Friday 22 May, is the last Friday in Ramadan. This application for interim relief, issued on Tuesday 19 May 2020 in proceedings issued that same day, is the Claimant's attempt to secure that at least some of those who wish to attend Friday prayers this week may do so. It would be some rather than all because the Claimant accepts that were the mosque to be open, social distancing measures, as required not in the 2020 Regulations but in guidance published by the Government, would need to be put in place. The Claimant's letter dated 22 April 2020 suggested that with such measures in place up to 40 worshippers would be able to attend. In a further letter dated 14 May 2020 it was suggested that the number able to attend would be 50. The Statement of Facts and Grounds states that although the mosque has capacity for some 4,000 people, there are some 50 persons who regularly attend Friday prayers. This would appear to explain the number stated by the Claimant in the letter of 14 May 2020.
By this application, the Claimant seeks interim relief in the form of an order prohibiting enforcement of regulations 5, 6 and 7 of the 2020 Regulations so far as they prohibit attendance at Friday prayers at Barkerend Road Mosque. 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.
There is no dispute as to the principles to apply when deciding this application for interim relief. In this case, the Claimant must first show a real prospect that at trial he will succeed in obtaining a permanent injunction, taking account of the fact that any decision to grant such relief would include consideration of the public interest. If the required real prospect exists, the next issue is whether or not the balance of convenience favours the grant of relief. As is ordinarily the case, the balance of convenience requires me to assess the prejudice that would arise if interim relief were wrongly granted, and weigh that against the prejudice that would arise were interim relief wrongly to be refused. At this stage too, the public interest is a relevant consideration: see generally Smith v Inner London Education Authority [1978] 1 All ER 411 and R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin.) In this case the relevant public interest is that of the Secretary of State continuing to operate effective measures to safeguard public health in response to the risk presented by the COVID-19 pandemic. I also accept the submission made by the Secretary of State that since the relief sought would prevent operation of part of the 2020 Regulations, no question of granting interim relief would arise unless I am satisfied, to adopt the words of Goff LJ in R v Secretary of State for Transport, ex parte Factortame No. 2 [1991] 1 AC 603, that the “challenge is so firmly based as to justify” such a cause of action (see the speech of Goff LJ at page 674D). Thus, this application for interim relief will not succeed on the first American Cyanamid requirement unless the prospect that the substantive case will succeed is particularly strong.
The claim is that the Secretary of State's failure to make provision for the Claimant to open the Barkerend Road Mosque for communal Friday prayer is contrary to his right, under Article 9 of the ECHR, to be permitted to manifest his religious belief in worship, teaching, practice and observance. For the reasons I have referred to above, concerning the general application of the restrictions in the 2020 Regulations, there is no Article 14 claim of unlawful discrimination. There is (and could be) no suggestion that Islam has been afforded some form of specific treatment (whether directly or indirectly); all religions which include an obligation to undertake communal prayer or worship are equally affected by the effect of the 2020 Regulations.
So far as concerns whether there is a strong prospect that at trial the Claimant will succeed in obtaining an order in the form now sought, my conclusions are as follows. There is no dispute that the cumulative effect of the restrictions contained in the 2020 Regulations is an infringement of the Claimant's right to manifest his religious belief by worship, practice or observance. The Claimant's case is that attendance at Friday prayers is a matter of religious obligation, and the Secretary of State does not seek to contend otherwise. Nevertheless, various points bear upon the extent and nature of the interference caused by the 2020 Regulations which have some relevance to the question of justification which I will consider later.
The first is that the interference relied on in these proceedings concerns only one aspect of religious observance — attendance at communal Friday prayers. This is not to diminish the significance of that requirement, yet it is relevant to the scope of the interference that is to be...
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