During the COVID-19 lockdown the initial British Government mantra of ‘Stay home. Protect the NHS. Save lives’, the ritualistic weekly public clapping for the National Health Service (NHS) and the overall tone of the media coverage led several commentators to raise the question of whether the NHS had become a religion. This question is legally significant. The question of whether the lockdown breached Article 9 has already been the subject of litigation. R (on the application of Hussain) v Secretary of State for Health [2020] EWHC 1392 (Admin) concerned the then prohibition on private prayer in places of worship. Swift J refused an application for interim relief to allow Friday prayers at Barkerend Road Mosque. Lockdown did infringe the claimant's Article 9 rights but this interference was only with one aspect of religious observance and the interference had a finite duration. The legitimate difference of opinion between the claimant and the British Board of Scholars and Imams was relevant to the question of justification. There was no real prospect that the claimant would succeed at obtaining a permanent injunction at trial because the pandemic presented ‘truly exceptional circumstances’ that meant that the interference would be justified on grounds of public health. Swift J was satisfied that there was a sufficiently arguable case to grant permission to apply for judicial review but he did not order that the claim be expedited. In Dolan, Monks and AB v Secretary of State for Health [2020] EWHC 1786 (Admin), an application of a judicial review of the lockdown regulations and schools closure was refused. However, in relation to Article 9, Lewis J adjourned consideration of this discrete issue because regulations had just been made that allowed communal worship which may have made the argument academic. English law provides the right to manifest religion or belief under the Human Rights Act 1998 and the right not to be discriminated against on grounds of religion or belief in relation to employment and the provision of goods and services under the Equality Act 2010. This raises the point: during the lifting of lockdown, when authorities require people to go back to their workplace or send their children to school, could individuals who refuse say they were legally entitled to decline on the basis that such a requirement breached their belief in protecting the NHS?
