Hussain, R (on the application of) v Secretary of State for Health & Social Care (Rev 1)

Interim relief suspending coronavirus restrictions will ordinarily require a particularly strong prospect of success where the order would prevent enforcement of regulations made to protect public health. The court must consider the interference with Convention rights, its justification and the public interest, allowing appropriate latitude for complex scientific, social and economic assessments. Temporary, generally applicable restrictions may strike a fair balance even where they substantially interfere with religious observance. Bright-line restrictions and the absence of case-by-case exceptions are not inherently unlawful. The threshold for interim relief is distinct from the lower threshold for permission to apply for judicial review.

The claimant, chairman of a mosque committee, challenged restrictions preventing communal Friday prayers during the COVID-19 emergency. He relied principally on Article 9 of the European Convention on Human Rights and sought interim relief suspending enforcement of regulations 5, 6 and 7 of the Health Protection (Coronavirus Restrictions) (England) Regulations in relation to the mosque.

The court accepted that the restrictions interfered with the claimant’s manifestation of religious belief. The central issues were whether there was a sufficiently strong prospect that the interference would be held unjustified and, alternatively, whether the balance of convenience favoured interim relief.

1. Interim relief refused. The claimant had to show a real prospect of obtaining permanent injunctive relief. Because the requested order would suspend enforcement of part of the Regulations, the challenge had to be particularly strong. The public interest in effective measures protecting public health was material to both stages of the inquiry: [1978] 1 All ER 411; [2010] EWHC 1425 (Admin); [1991] 1 AC 603.
2. The cumulative restrictions interfered with Article 9 rights, but the interference concerned one aspect of religious observance, was temporary, and applied equally to all religions. Differences of religious opinion concerning the continuing obligation of communal prayer could legitimately inform the fair-balance assessment without the court adjudicating on religious doctrine.
3. The restrictions pursued the legitimate objective of protecting public health and were rationally connected to reducing indoor mixing and transmission. The Secretary of State was entitled to adopt a precautionary approach and to determine, in light of scientific advice and wider policy considerations, the sequence and scope of easing restrictions. The court should not lightly second-guess those assessments.
4. The qualitative difference between prolonged indoor religious gatherings and briefer or more transitory contact supported the distinction drawn by the Regulations. A bright-line scheme without case-by-case exceptions was not impermissible. The interference was therefore unlikely to be found disproportionate, having regard also to section 13 of the Human Rights Act 1998 and the proportionality approach in Bank Mellat v HM Treasury.
5. The German Constitutional Court decision in F was not a template or precedent to follow. The application of the relevant constitutional and Convention principles depended on the domestic regulatory scheme and circumstances. The balance of convenience would independently have favoured refusal because allowing the order would create too great a risk to the regulatory balance.
6. Permission to apply for judicial review was granted because the claim was sufficiently arguable, although it did not meet the higher interim-relief threshold. Expedition was refused. The claimant was ordered to pay the defendant’s costs of the interim-relief application, assessed on the standard basis if not agreed.