R Tabassum Hussain v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 18 January 2022 |
| Neutral Citation | [2022] EWHC 82 (Admin) |
| Docket Number | Case No: CO/1846/2020 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 82 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/1846/2020
The Claimant appeared in person
Christopher Knight (instructed by Government Legal Department) for the Defendant
Hearing date: 14/12/21
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
The substantive issue raised in this claim for judicial review is this: whether the 26 March 2020 Covid-19 prohibition on collective worship (“PCW”), as maintained from 13 May 2020, with its prohibiting consequences inter alia for communal prayers at a Bradford Mosque, breached the Human Rights Act 1998 (“the HRA”) as an unjustified interference with freedom of religion (Article 9). The issue which I have to determine is this: whether it is appropriate to “strike-out” the claim, preventing it from proceeding to a substantive hearing. Permission for judicial review (“PJR”) was granted by Swift J – who at the same time refused the Claimant's application for interim relief to suspend the PCW – on 22 May 2020: see his judgment at [2020] EWHC 1392 (Admin) (“Hussain”). By an application issued a year later – on 28 May 2021 – the Defendant asked the Court to strike-out the claim. The strike-out application is put on two grounds, in essence: (i) that the claim is inappropriate for substantive determination, having clearly been rendered “academic” by virtue of change in circumstances subsequent to the grant of PJR; and (ii) that there has been a serious failure of diligent pursuit of the claim. The hearing of the strike-out application was listed pursuant to an order of Chamberlain J on 13 September 2021. It proceeded as an in-person hearing. At the hearing, the parties were able helpfully to address me, both on (a) whether to strike-out the claim and (b) what the appropriate costs orders would be if I did so or refused to do so. I reserved my judgment, to deal with all issues in writing. Near the end of the hearing, the Claimant raised the possibility of an adjournment to allow him to instruct new lawyers. His previous legal representatives had told the Court on 9 December 2021 that they had ceased to act. I declined to adjourn. The Claimant had ample notice, and time to react. He had been able to address me with clarity. I had good visibility and was satisfied – in the interests of justice and the public interest, and having regard to the overriding objective – that an adjournment was unjustified and inappropriate. Many points to which I will make reference in this judgment are in the Court of Appeal's judgment (1.12.20) in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 [2021] 1 WLR 2326 (“ Dolan”).
Some relevant legal principles
I am going to start by going back to basics. 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, which provides:
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance .
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others .
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.
Three of the procedural principles of judicial review are particularly relevant to what I have to decide in this case. (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 (see Dolan §§39–42, 99). (2) The Court has the power to strike-out a judicial review claim (see R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990 [2007] 1 WLR 536 at §65), 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” (see R (Suleiman) v Secretary of State for the Home Department [2017] EWHC 3308 (Admin) at §3). (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 (“JRG”) (see Dolan §§118, 29).
The Court's strike-out power (§3(2) above), as is invoked by the Defendant in this case, is an important residual safeguard in judicial review procedure. As with the other procedural principles, its basic purpose is to promote the interests of justice and the public interest. But the strike-out power is to be invoked sparingly (“in exceptional cases”). When a ‘satellite’ application of this nature is ‘interposed’ into judicial review proceedings, the Court will expect to be given a very clear-cut reason as to why a substantive hearing has now become inappropriate. Otherwise, a claim, which has been granted PJR and which is maintained by a claimant, will run its course to a substantive hearing. In that situation, a defendant or interested party who maintains that a claim is groundless or should not have been maintained, must take their protection from being able to demonstrate this at the substantive hearing, where the claim can be dismissed, and appropriate costs orders can be made. I note that an application for summary judgment may be used in a similar way in judicial review (see eg. R (All About Rights Law Practice) v Lord Chancellor [2021] EWHC 3048 (Admin)) but that does not, in my judgment, affect the approach which I should adopt to the present strike-out application.
The PCW
The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 were made by the Defendant on 26 March 2020 (see Dolan §8). They took immediate effect. They were in response to the Covid-19 pandemic, in conjunction with the “lockdown” which had been announced on 23 March 2020 ( Dolan §8). Regulation 5(5) provided that any place of worship had to close during the emergency period, except for limited purposes such as funerals ( Dolan §18). That provision, in conjunction with others ( Hussain §§3–5), constituted a PCW, with the prospect of criminal law consequences for a person responsible for a place of worship at which collective worship took place, and anyone attending collective worship, in breach of the PCW. When the regulations were amended on 13 May 2020 ( Dolan §9) some restrictions were relaxed, but the PCW was maintained. The picture from 13 May 2020 was different from that which had applied in March 2020, but the PCW remained in force. The PCW was subsequently withdrawn and ceased to have effect from 4 July 2020 ( Dolan §25).
The claim
This judicial review claim was issued on 19 May 2020. The JRG were settled by Kirsty Brimelow QC and Jude Bunting, instructed by Blacks Solicitors. The claim included a request for expedition, by means of an urgent ‘rolled-up’ hearing, to secure a ruling on the substantive legal merits before the final Friday of Ramadan on 22 May 2020. In the event, Swift J conducted a one-day hearing on 21 May 2020 the culmination of which was his refusal of interim relief but his grant of PJR. The claim as pleaded had – and at the time of the hearing still had – these, among its essential components. (1) The “decision”, which was identified in the claim form as being judicially reviewed, was the “ongoing prohibition of collective worship at Barkerend Road Mosque, Bradford”. (2) The ground of challenge was a single ground, encapsulated in this way: “The ongoing failure of the Defendant to permit the limited opening of a Mosque in Bradford for communal Friday prayers is … unlawful and in breach of Article 9 of Schedule 1 [to] the Human Rights Act 1998”. (3) The remedies (relief) sought were identified as follows: “(a) A declaration that [the] ongoing failure is unlawful. (b) An order requiring the Defendant to permit the Claimant to open the Mosque in the limited way set out [by the Claimant]. (c) Such further or other relief as the Court considers appropriate. (d) Costs”.
The opening paragraphs of the JRG said this:
This is a challenge to the ongoing failure of the Defendant to...
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