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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.
So Fr PJ Hughes is right in his assumption that he is not breaking any laws by saying Mass.
@Dermot McL: he might not be breaking any laws, but it’s still criminal!
@Ann Neylan: what’s criminal is the hysteria around things like people going to church, I’m not religious but I see elderly people in my area who literally feel cut off from the world since covid and their only comfort is their faith….we basically locked the elderly away for a year like animals in nursing and their own homes, and now when we have actually got them all as good as vaccinated, someone telling me we can’t let them do social distancing church service??…the grey vote is an incredibly powerful thing in this country, and believe me they won’t forget this in a hurry especially in rural Ireland, the parties who stood behind this decision will ultimately pay for it whether they believe they were doing good or not
@Ann Neylan: https://www.noca.ie/documents/irish-national-icu-audit-annual-report-2018
With respect Ann, this too can then he seen as criminal. The state has failed it’s people with a sub standard health care system. The EU also pressed the Irish government to improve this. They refused. The people suffer. Close to criminal
Excellent work lads.
Doing what academics and experts should be doing.
See a fault in State response and challenge it.
A lot happy to sit back, not rock the boat and keep collecting pay cheques.
@Corby Trouser Press: eh… They are academics.
Hi Oran and David. Any idea the rationale as to why only 10 allowed in a church but a maximum 21 in a courtroom?
@David Hanly: Typically at religious services, everyone is singing, reciting hymns or saying prayers, this spreads the virus massively compared to a court room where only a couple of people are talking and most remain quite.
There’s many examples of superspreading events at choir practice and in churches (e.g. Korea). The following case, one infected singer infected 53 out of 61 singers, there were 3 deaths.
It is also easier to contact trace attendees at a court case compared to church goers, courts i imagine usually keep a reliable list of names and addresses of people in court.
Miller, S.L., et al., 2021. Transmission of SARS‐CoV‐2 by inhalation of respiratory aerosol in the Skagit Valley Chorale superspreading event. Indoor air, 31(2), pp.314-323.
Korea:
Thank you Professors Doyle and Kenny for this. The intentional blurring of the law and advise has been a dangerous precedent to set.
A section of the community have come to this conclusion ages ago.
I’m not any way religious but the whole fiasco around people going to mass was death appallingly by those in charge, the sight of gardai in a church fining people really showed how messed up things have gotten, then the mixed messaging of no its not illegal and suddenly coming up to Easter it was illegal to gather for mass was just another pathetic episode from those in charge…..the government need to be careful here cos the last time they went rattling the grey vote it stirred a hornet’s nest, and taking away the ability of elderly who still believe in the church or anyone to to attend services, will come back to haunt certain parties….they need to get a grip cos the covid hysteria is going beyond logic now, between banning people going to mass or playing sports outside
In the midst of a worldwide pandemic that’s taking lives daily, should they really have to be told something so basic?
@Arch Angel: Is there anything to be said for another mass?
@Arch Angel:
What’s “basic” has been the Irish authorities approach.
Closing access pretty much hasn’t happened to such an extent as in Ireland.
Zero risk of transmission with mitigations in place.
Follow the science.
@Arch Angel: I find this argument funny but ill ask the question so, what’s the difference in say maybe 10 people going to a socially distanced mass where they will not be even within 2m of the other person and giving them some comfort, and a person going into a large factory with 200 people 5 days a week where you will be interacting with others for 8 hrs a day???…..while i understand we all have to use a bit of logic during covid, I find it funny how people just dismiss how sending large amounts of people into factories under the banner of it being essential work is anyway safer than 10 people or so being allowed into a church once a week
@Tarraing Mo Liathróidí: clearly it is safer in the mass situation, however, you said it yourself, essential work beats communal gatherings. I happen to agree with you in terms of distancing, etc. However, it all depends on how the state officially views mass and religion. Does religion hold a special legal definition or is it classed as a mass gathering, (no pun intended). If the state is serious about separating state and religion, then legally a mass is a gathering and falls under covid-19 restrictions. Ireland has never fully went one way or the other, but have side lined the issue again and again. I believe that there should be a legal separation of church and state, but until we have clearly defined laws and rules on the subject, it will always be up for debate.
@Arch Angel: You are right! The government should not have to be told to allow churches to open freely and without undo restrictions! If souls are leaving this world daily then they need to be spiritually prepared and comforted!
@David Stapleton:
There is no country with a more seperate relationship between Church and State then France.
And they will continue to allow attendance at services even now they are planning to close schools again for 3 weeks.
@Corby Trouser Press: yes, but they allow mass in the same way they allow other gatherings. Religion has no special place in the law, which is my point.
There is the law to tell us what we can and cannot do, legally. There is our intellect to steer us towards the sensible thing to do and then there are morals to steer us towards the ‘right’ thing to do. A society where we live by the whims of an interpretation of the legal system should be approached with caution.
Now, must go and put my hand in the fire of eternal damnation. There’s no law that says I can’t!!
@Bob Murray:
If anything it is immoral for the State to steer Mass goers away from an activity that has been proven to have almost zero risk in terms of Covid transmission.
Parishes have done all the heavy lifting ensuring that the services were Covid safe.
The thanks they have got has been for the State to put them on a par with a hobby or recreational activity.
Very few other authorities in Europe view religious worship as a hobby.
Closure of access to Church services has been very rare across Europe since reopening in Summer 2020.
It is immoral for people’s right to practice their faith to be taken away from them, in practical if not legal terms.
Ireland has been an outlier in this “closure”, as with a lot of other things.
@Corby Trouser Press:
I take the contrary view – this virus is particularly devastating to older people – it kills them – the age profile of mass goers is predominantly old – it would b foolish and risky to be encouraging them to congregate for mass during this pandemic – much much safer to encourage them to practice prayer at home and improv online masses – if they can get out for a walk to do so safely – but splitting hairs about legality is missing the point – th country is not trying to criminalise older people they are trying to protect them. Prayer should be a personal thing during these times – not something that you need to add risk to and put on display for others to see – the advice to older people is sensible in this context in my opinion
Gods law over rules man,s law, at all times.
@Laz Mahon: if you believe in the power of God or gods, then even Jesus himself said, “Render under Ceasar the things that are Ceasar’s and under God the things that are God’s”. To me that means a clear distinction between your God’s law and human law. The issue is the vague way in which the state has treated religion in regards to the state. If Ireland really has a separation of the two, then religious services can be considered communal gatherings, and therefore fall under the remit of current covid-19 laws. If religion is afforded a special status, i. e. there is no separation, then it doesn’t.
@Laz Mahon: The Pope is Christ’s vicar on earth, and he says act with your brain and don’t endanger your health or others.
I believe in beer, and wish to exercise my right to worship. I’m quite devout, so we’re talking 3 or 4 times a week here. Anyone know of any regular services in the North County Dublin area?
@Col de Gal: i have it good authority the main man is self isolating for 40 days at the mo and is zooming a last supper this week , drinks are off for good friday but he is expected to make a re appearance sometime after this weekend and i have invited him to a wedding we are planning in Cana – there will be plenty of wine sorted if you would like to come along to that .
So we have pick and choose enforcement, large ethnic gatherings
Somehow I should not have thought it necessary that legislation would be required for intending mass-goers to do what is right by their neighbours, if not themselves. But, since the arguments offered in so many places appear to be based on social, cultural, and even entertainment reasons (for which combination ‘religious’ is a shorthand) the legislation in fact does appear to apply.
Irrespective of the lack of *legal* clarity surrounding opening Catholic churches. The head of the Catholic Church, Pope Francis, has said all Catholics must adhere to public health guidelines, are we about to see another split in the RCC?
It’s amazing really, the parallels between Covid 19 control mechanisms and the penal laws ot the 16 & 17th centuries. When might is right and diabolical laws can be enacted and implemented and enforced in the name of the “common good”, r
Rest assured, democracy is and always will be the big loser.
We are most definitely on a slippery slope which needs to be stopped with utmost haste.
Whatever happened to St John More’s words¦ Your servant my lord, but God’s servant first!
Can I sum up the matter of attending religious services? :
+ It is not unlawful to attend
+ It is not criminal
+ It is not allowed.
It could be argued that Religious Services are both Cultural and Community events and thus are in breach of Section 31a of the 1947 Health Act.
That would be an ecumenical matter…….
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