The State has been given two weeks by a High Court judge to clarify whether there is a legal basis for Covid-19 restrictions on people attending Mass or whether they are merely advisory.
The issue arose during a mention of the challenge brought by businessman Declan Ganley over Level 5 restrictions on religious services.
The Co Galway based businessman, a practising Roman Catholic, claims that as a result of the restrictions, he cannot leave his home to attend Mass, which he argues is in breach of the State’s guarantee of the free practice of religion in Article 44 of the Constitution.
While certain religious activities, including weddings and funerals, are permitted, the restrictions prevent him and others attending Mass or similar religious services, he says.
Last November, he sought leave to bring judicial review proceedings against the Minister for Health, with Ireland and the Attorney General as notice parties.
The sides have since agreed the action can be dealt with via a “telescoped” hearing in which the leave application and full case are heard together.
Extensive opposition papers have been filed by the State, including a series of affidavits addressing the public health basis of the restrictions. Mr Ganley’s side had sought time to address those.
When the matter was again mentioned before Mr Justice Charles Meenan on Tuesday, Neil Steen SC, for Mr Ganley, referred to recent publications by the Irish Human Rights and Equality Commission and by Trinity College Dublin Professor of Law Oran Doyle concerning the State's Covid-19 response.
Counsel said those publications include criticism about the lack of clarity concerning whether certain restrictions have a legal basis or are merely advisory. It appeared it may not actually be an offence to celebrate or attend Mass, he said.
He said the State’s opposition papers have not clarified whether there is a legal ban on leaving your home to attend Mass and clarity is necessary for his side to determine whether it is necessary to proceed with the case.
The State had addressed the matter in a very technical way, effectively saying the issue of whether it is an offence to attend Mass, or it is advisory not to, did not arise because there are no masses to attend, he outlined.
The State has avoided specifically saying whether the regulations prevent you attending Mass or not, he said. If they do not, Mr Ganley’s case may be unnecessary.
Catherine Donnelly SC, for the State, said the matters raised by counsel had not been raised in correspondence with her side and she needed time to take instructions.
Mr Justice Meenan said Mr Steen’s side should write to the State about the matter by Friday, the State had two weeks to respond, and he would adjourn the case to April 13th.
Mr Ganley is challenging certain temporary regulations introduced by the Minster for Health to deal with the pandemic — Regulation 5(1) and (3) of the 1947 Health Act.
He claims the regulations are incompatible with various articles of the Constitution, including Article 44 where the State acknowledges the right to the free practice of religion. Alternatively, he wants a declaration the regulations do not prevent him leaving his residence for the purpose of practising his religion.
