ONE OF THE biggest problems with Ireland’s Covid-19 response has been clarity.
We at the Trinity College Dublin Covid-19 Law and Human Rights Observatory have, on several occasions, raised concerns with the blurring of the line between law and advice, with a lack of clarity on what you legally can’t do and what you are advised not to do.
With the ongoing controversy around religious services, this has reached a new low, and the State’s actions now violate fundamental principles of the rule of law.
Criminal prohibition
It seems to be widely believed that there is a criminal prohibition, under our Covid regulations, on organising religious services. Gardaí apparently urged the Archdiocese of Dublin to advise parishes not to organise any religious events.
One priest has been fined for saying mass. Gardaí have set checkpoints near churches where masses are being said.
There may be legitimate questions as to the constitutionality of this restriction on religious freedom. But the most extraordinary aspect of this is that it is not clear, at present, if there are actually are any legal restrictions on religious services.
Having examined the matter closely, we think there are no legal restrictions, other than for funerals where the maximum number attending is limited to 10.
There are two arguments that Covid-19 regulations currently in force prohibit religious services. First, under the law that empowers the Minister for Health to impose Covid-19 restrictions, these restrictions can prohibit events, including cultural, recreational, sporting, and religious events.
However, the current Covid regulations prohibit the organising of events, but only those for social, recreational, exercise, cultural, entertainment or community reasons. Religious events are clearly not included in this. An argument that these rules prohibit the holding of religious services cannot be correct.
Secondly, there is currently a general prohibition on leaving one’s home without a reasonable excuse. The regulations list a number of reasonable excuses, but these are examples and not exhaustive: you can have other reasonable excuses too.
In our view, given the clear legislative choice by the Minister to permit religious events, it cannot be credibly argued that leaving your home to attend or organise a religious event is not a reasonable excuse. If there is any doubt on this, however, that doubt must be resolved in favour of there being no criminal offence. The law requires criminal sanctions to have a clear legal basis.
If our analysis is correct, then—contrary to the widespread belief—there is no prohibition on either attending or organising religious services.
Government statements
The government has also suggested that there is no such prohibition. On 22 October 2020, in the Dáil, Minister for Health Stephen Donnelly assured TDs that the Covid regulations do not make religious services a criminal offence. (The relevant regulations are worded the same way now as then.)
In November, the Department of Health stated that holding religious services was not a criminal offence, but noted that religious services are “required to move online” in the higher levels of the government’s Covid response framework. Nothing relevant in the Regulations has changed since this time that would alter these positions.
What is going on here? It appears that the attitude of the government has been that religious services should not be criminally prohibited, but they should be discouraged from taking place. This public health advice is of course not a rule, and no penalty could attach for not following it. But saying that religious are “required” to move online is misleading, suggesting a legal requirement that does not exist.
It appears that some state bodies—including the Gardaí—began to enforce a legal prohibition that, according to the government, does not exist.
This was complicated again by the State’s response to Declan Ganley’s constitutional challenge to the restriction on religious services. On Sunday, the Irish Catholic reported Mr Ganley saying that the State’s formal position in his case is now that there is a criminal prohibition on religious services.
We must await the next court hearing to learn more about this argument, but we cannot see an obvious legal basis for the State’s stance. It is, of course, a direct contradiction of the State’s earlier denials that there was any criminal prohibition. We are not aware of the Minister correcting the Dáil record.
Rule of law failures
As well as being very serious for those who wish to hold and attend religious services, this incident serves as a stark illustration of a more general problem with the State’s Covid-19 restrictions: the government has repeatedly—perhaps deliberately—blurred the distinction between what is legally prohibited and what is merely advised against.
In a report we prepared for the Irish Human Rights and Equality Commission, we gave several examples of this problem. Advice to over 70s to “cocoon” in the early months of the pandemic was often presented as law. It was not.
Advice not to travel outside the State—and to restrict movements upon entering the State from abroad—was often presented as a legal requirement, but until early this year there were no legal rules requiring this.
While confusion was understandable in the early stages of the pandemic, the number of instances spread over time, and contrary to the recommendations of the report of the Oireachtas Special Committee on the Covid-19 response, suggests the possibility of a deliberate strategy.
Avoid any political and legal difficulties of enacting legal restrictions, while encouraging people to believe that those legal restrictions nevertheless exist.
Earlier instances were problematic, but the situation with religious services brings this problem to a new level. People have been issued with fixed penalty notices for committing a criminal offence that may not exist.
They may contest criminal liability in court, but the fixed penalty notice procedure is inappropriate where the very existence of the offence (as distinct from whether an individual has committed the offence) is in doubt.
Whatever a court ultimately concludes about the existence of restrictions, this situation is an affront to basic rule of law principles, with which all legal systems should comply. The rule of law demands that legal obligations be clear and understandable to the population at large and that no one is prosecuted for a crime that was not set down clearly in law at the time they committed it.
The State actions around religious services breach these most basic and fundamental principles of a liberal democratic state. They may also risk undermining the efficacy of the State’s Covid response, making people unsure of the rules or generating resentment or frustration at the lack of clarity in what is expected of them.
For principled and practical reasons, this behaviour needs to stop, and a clear, unambiguous line between legal obligations and advice must be drawn.
Oran Doyle is Professor in Law at Trinity College Dublin. David Kenny is Associate Professor of Law at Trinity College Dublin. They are both members of the Trinity College Covid-19 Law and Human Rights Observatory.
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