Businessman Declan Ganley has urged the High Court to hear his challenge to the legality of the ban on attending public religious worship which operated at stages during the Covid-19 emergency.
Neil Steen SC, for Mr Ganley, argued on Friday that, although the disputed regulations had lapsed, the case raised important legal issues about the balance between the right to public worship and public health.
The case was about the “outright criminalisation” of the act of leaving one’s home to attend public Mass, he said. Mr Ganley was not arguing for an “absolute” right of public worship but maintains any such infringement must be justified.
It was “absurd” for the State to deny any infringement at all and its real defence was on public health grounds, based on expert evidence mostly not before the Minister for Health when the regulations were made, he said. Based on the State’s own data, there was no evidence of any outbreak of Covid-19 associated with any Roman Catholic Mass or other public religious service, he said.
There was “substance” to this case, underlined by decisions from the Scottish and US courts which struck down similar regulations, he said. It would be of benefit to Mr Ganley, all those to whom religious belief was important and for whom the ban was an “open wound”, and the State itself, to decide it, he urged.
If the case was not heard, the State would have “outmanoeuvred any effort at judicial supervision” and the administration of justice could also be held in disrepute, he said.
In submissions for the State, Catherine Donnelly SC said, on the facts of this case and applicable law, it appeared the proceedings should be held to be moot (pointless).
It was for the court to decide if Mr Ganley’s side had met the burden of proof to show it was not moot, she said.
Mr Justice Charles Meenan will rule on a later date whether the case is moot or should proceed to hearing.
Practice of religion
Mr Ganley, a practising Roman Catholic, claims the regulations meant he could not leave his home to attend Mass in breach of the State's guarantee of the free practice of religion in Article 44 of the Constitution. He also alleges breach of Article 9 of the European Convention on Human Rights, which provides for the right to freedom of thought, conscience and religion.
His case is against the Minister, with Ireland and the Attorney General as notice parties.
When it was initiated last November, the judge directed Mr Ganley’s application for leave to bring it should be on notice to the State and put it back to December.
Although the regulations had lapsed by then, the State agreed in the interim it would not raise the issue of mootness and the case proceeded on that basis.
The State then took some four months to put forward extensive affidavits, mostly from public health experts, by which time the regulations which replaced the ones initially challenged had also lapsed.
Last month, when Mr Steen sought a date for hearing, Mr Justice Meenan said, as the restrictions had lapsed, he saw no point in fixing a hearing date.
He asked both sides to prepare submissions concerning the mootness issue, saying the fact the State previously agreed with Mr Ganley’s side not to raise mootness was not binding on the court.