Ganley takes legal challenge to Level 5 ban on attending Mass

Businessman Declan Ganley has initiated a High Court challenge alleging certain regulations aimed at preventing the spread of Covid-19 breach his constitutional right to religious freedom.

The Co Galway based businessman, a practising Roman Catholic, claims that as a result of the Level 5 restrictions, he cannot leave his home and attend Mass. The measures, introduced last month and which may expire on December 1st, do allow certain religious activities to take place, including weddings and funerals but do not allow him or any other person who wishes to attend Mass or a similar religious service in breach of his constitutional right to practise his religion.

He has launched judicial review proceedings against the Minister for Health with Ireland and the Attorney General as notice parties.

When the matter came before Mr Justice Charles Meenan on Friday, the judge said the proposed challenge related to measures included as part of the Government's Level 5 plan to combat the pandemic. Those particular measures may expire on December 1st, which may render Mr Ganley's action moot (pointless), the judge said. There was no likelihood of this complex case, if the State respondents choose to challenge it, being heard by the end of the month, he said.

The judge directed the application for permission to bring the challenge be heard on notice to the State and adjourned the matter to December 8th when he said circumstances can be reassessed. The judge said he presumed the matter would be opposed by the State but it was free to come to court at any time to say it was not doing so.

In reply, Mr Ganley’s lawyers said the matter was urgent and also argued that similar restrictions regarding attending religious services could be re-imposed in the future.

In his action, Mr Ganley represented by Neil Steen SC and Darren Lehane SC, instructed by solicitor Eamonn Cunningham of Gateley Tweed, seeks various orders and declarations, including an order that certain temporary regulations introduced as part of the Government’s efforts to deal with the pandemic – Regulation 5(1) and (3) of the 1947 Health Act – are quashed. He also seeks declarations the regulations at issue are incompatible with various articles of the Constitution, including article 44 where the State acknowledges the right of persons to freely practise their religion.

In the alternative, he wants a declaration the regulations do not prevent him from leaving his residence for the purpose of practising his religion, including participation in public worship. Mr Steen said the issue was extremely important for his client. It was accepted the vast majority of religious services, including Catholic Masses, have been cancelled by church leaders due to the pandemic. The regulations did not appear to prevent services like Masses but Catholic priests cannot leave their homes to perform a Mass nor can persons like Mr Ganley attend such services.

Counsel said the Constitution has express provisions protecting the freedom of religious practice. His client’s case was that the disputed regulations, which were introduced by the Minister for Health, cannot interfere with those rights. While it was accepted the restrictions might well be lifted by December 1st, there was a concern they could be re-imposed by the Government, he said. The case ultimately raised a net point and was very different to other challenges brought against Government measures in response to the Covid19 pandemic.