Does the lockdown breach the right to freedom of religion?

30 November 2020 by Dominic Ruck Keene

The opinions expressed in this article are the personal opinions of its author. Legal scrutiny of the provisions discussed in this piece is warranted but should not be taken to question the requirement to obey the regulations.

Article 9 ECHR provides as follows:

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.

This protects the right to public and communal worship where that is part of the belief held by an individual or group, and accordingly Article 9 is clearly engaged.

Nevertheless, when considering the legality of the lockdown it is relevant that the neither latest iteration of the Coronavirus Regulations, nor the previous version that imposed the earlier lockdown, in any way restrict the Article 9(1) right to hold a belief, or choices made regarding personal behaviour outside the context of places of worship.

Further, the European Court of Human Rights (ECtHR) held in Pavlides v Turkey [2013] (Application 9130/09) at [29] that Article 9, taken alone or in conjunction with Article 11, does

not bestow a right at large for applicants to gather to manifest their religious beliefs wherever they wish.

The issue is therefore whether any interference with Article 9 rights was or is both necessary to meet the pressing social need of protecting the health of infected and potentially infected people (the specified exemption from Article 9) and also proportionate.

During the first lockdown, on 21 May Mr Justice Swift refused an application for an interim injunction to enable a mosque to open for Friday prayers for the last day of Ramadan (R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin)).

But interestingly, in the major lockdown challenge which I discuss here, Mr Justice Lewis indicated that he would be prepared to grant permission to challenge the legality of the original lockdown regulations on the basis of interference with Article 9.

What has changed in this respect since the previous lockdown is (1) the degree of general scientific knowledge about Covid-19 transmission has increased significantly, which makes assessing and mitigating risk within religious services potentially much more effective, and (2) the extent of work done by religious organisations to reduce the risk of Covid-19 transmissions.

Conversely, on an examination of the publicly available information from SAGE, little specific consideration appears to have been given to the risk posed by religious services.

Earlier in the period of this pandemic, the issue was examined on 11 February 2020 by SAGE in the context of preventing public gatherings, where it was noted that “religious services with a high level of physical contact would be higher risk”. This analysis was repeated on 11 March 2020 in the SPI-M-O consensus statement on public gatherings.

On 9 March 2020, an analysis of the potential impact of behavioural and social interventions assessed that stopping large events would reduce contact rates outside the home by only 5% (with closing places of worship being the 4^th most significant intervention out of the five types of large events).

In due course, a paper on 4 June 2020 discussing mitigation measures against the spread of Covid-19 stated that “Evidence from modelling and experience in the current pandemic that environments which enable a high degree of social contact (bars, restaurants, religious settings etc) are associated with clusters of cases”, but the only specific evidence cited was several clusters had been associated with religious settings, parties, bars, restaurants, and nightclubs.

Moreover, the 21 September ‘Non Pharmaceutical Interventions’ Pivot Table discusses the effects of a stay at home order (or lockdown) including the closure of places of worship, but makes no specific reference to the effects of that closure, stating only generally that there is a large impact on health, social isolation and wellbeing from lockdown. There is no reference at all to places of worship within the analysis of the effects of a planned, 2-3 week, stay at home order (or ‘circuit breaker’). In this regard, it is not entirely clear whether we are currently in a lockdown or a circuit breaker as defined by SAGE.

The most recent paper on Transmission routes (dated 22 October 2020) states that there is evidence that

increased frequency of exposure to public spaces including shops, cinemas, places of worship and public transport is associated with increased risk of acquiring acute respiratory infections, suggesting a possible important role of casual contact in these settings.

When Chris Whitty and Patrick Vallance gave evidence to the Parliamentary Science and Technology Committee, they were asked the specific question about what advice did SAGE give in making decisions where the evidence was weak, with the specific example of closing places of worship.

In response, Sir Patrick Vallance responded that SAGE did not have good evidence as to the exact value of each intervention on reducing the R-Rate. When asked what transmission there had been since places of worship had been re-opened, he responded that they did not good data to answer that question with any degree of certainty. Chris Whitty stated that

there is some very weak data to imply that, even if the place of worship has been incredibly good about being Covid secure, by bringing people together, people can congregate outside and do things that lead to transmissions, but this is very variable. A lot of this is anecdotal, so we should be a little careful about putting that out as a scientific fact. These are just reported behaviours.

Patrick Vallance added that there had been several reports of outbreaks from churches, particularly in the US

There are environments where you are bringing together people who might not normally come together in internal environments.

Overall, my comment would be that on the basis of the publicly available evidence from SAGE and the evidence given to the Parliamentary Science and Technology Committee by Sir Patrick Vallance and Professor Chris Whitty, it appears that there has been at best very limited tailored analysis of the specific risk of transmission of Covid-19 in the context of religious services. Such analysis as has been done does not necessarily take into account either the effectiveness of any mitigation measures that have been implemented by religious organisations, or the increased understanding of the Covid-19 since the previous lockdown.

Ultimately, the right to practice religion is specifically protected by the ECHR in a way that e.g. attending a football match is not. But overall the impression is given that worship and religious services have been considered together with other public gatherings or activities. That potentially poses a real problem for the Government in arguing that specific consideration has been given to the proportionality of any interference with Article 9, and that therefore the degree of interference is in fact necessary and justified.

Dominic Ruck Keene is a barrister at 1 Crown Office Row.