In our roundup on 26 December, we made a brief reference to a recent case in which the Irish High Court had dismissed a challenge to Regulations – by then revoked – that had banned attendance at public religious worship during various stages of the COVID-19 pandemic. Now that the judgment is available, following is the full story.

In Declan J Ganley v Minister for Health [2021] IEHC 822, Mr Ganley, a practising Roman Catholic, was forbidden under level 5 Regulations lawfully to attend Mass, which he described in his amended Statement of Grounds as “the pre-eminent form of public worship of Almighty God in the Roman Catholic religion” [2]. He maintained that such restrictions were ultra vires the Health Act 1947, as amended, and contrary to Articles 15.2, 15.4, 44.1 and 44.2 of the 1937 Constitution of Ireland [3].

The procedural background

On 6 November 2020, he made an ex parte application by way of judicial review to strike down the impugned Regulations. Because it had been the stated intention of the Government to lift the restrictions imposed by the Regulations as and from 1 December 2020, Meehan J directed that the leave application be on notice to the Minister and the notice parties and adjourned the matter to 8 December 2020. The applicant appealed that decision to the Court of Appeal [4] but the appeal did not proceed; instead, the parties agreed to a “telescoped” hearing as to whether or not the application was now moot, given that the impugned Regulations had expired on 1 December 2020 [5].

The impugned Regulations

Regulation 5(2) of the spent Regulation provided, without prejudice to the generality of what constituted a reasonable excuse for the purposes of Regulation 5(1), that a reasonable excuse for travel included travelling or moving for certain specified purposes. Those purposes included:

“(o) in the case of a minister of religion or a priest (or any equivalent thereof in any religion):

(i) lead worship or services remotely through the use of information and communications technology, or

(ii) minister to the sick, or

(iii) conduct funeral or wedding services, …” [9].

Their effect was to make it an offence for Mr Ganley to leave home to attend Mass [10].

The issue of mootness

The purpose of the mootness doctrine was described by Murray CJ in Irwin v Deasy [2010] IESC 35 as “to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable”. Mr Ganley argued, however, that the doctrine was subject to exceptions – and that his application was one of them [11]. He relied on several domestic judgments that provided exceptions [12&13] and on Article 13 ECHR (right to an effective remedy) [14]. He argued that, since the pandemic was ongoing, the impugned Regulations might be re-imposed in future, therefore bringing himself within those exceptions [15]. The Minister, and the Government and Attorney General as notice parties, argued that the lawfulness of the Regulations could not be determined definitively, or at an abstract level of principle, because the justification for them would always turn on the particular situation at the time. Further, a hearing on their lawfulness would not be an efficient use of court resources [16].

The judgment

Meenan J pointed out that the constitutional rights of freedom of conscience and the free profession and practice of religion were not absolute: they were “subject to public order and morality”. It necessarily followed that any restrictions had to be “proportionate” and proportionality in a pandemic would depend on the extent and effects of the particular disease: “Were the disease to have a high mortality rate (or high morbidity), significant restrictions may be more proportionate than would be the case of a disease with lesser effects” [17].

The nub of Mr Ganley’s complaint was that “the restrictions on the attendance at Mass are disproportionate, rather than that there should be no restrictions at all” [18]; however, the cases on which he relied were of no assistance [19]; further, because the impugned Regulations had been rescinded, there was no longer any remedy that could be required under Article 13 ECHR [20]. However, he rejected the submission of the respondent and notice parties that it would not be an “efficient management of judicial resources” for the application to proceed to a hearing [21].

He was satisfied that the application was moot and should be dismissed [22].