Catholics stand outside Sts Anne and Mary Cathedral in Cork on April 4. Photo: Cillian Kelly. Government’s actions suggest a preference for vaguely articulating a desired standard of behaviour and then tricking citizens into compliance, writes Prof. Oran Doyle
Legal prohibitions on religious services have been much in the news lately. In this unavoidably lengthy post, I will show how these prohibitions have evolved over time in order to identify precisely what changes have been recently introduced. I break the past year down into four broad time periods. I then explore some public commentary and the legal prohibitions on other types of event, in order to make more sense of rationale for the recent changes and the manner in which they were introduced. This analysis will illustrate broader concerns about the Government’s response to the pandemic.
The spring 2020 lockdown
The original regulations (SI 121/2020) applied from April 8, 2020 to June 8, 2020, being amended on several occasions during that period. Regulation 4(1) provided that it was a criminal offence to leave one’s home without a reasonable excuse. Regulation 4(2) provided a list of reasonable excuses that was without prejudice to the generality of ‘reasonable excuse’ in regulation 4(1). Among the listed reasonable excuses in regulation 4(2) were the following:
(o) in the case of a minister of religion or priest (or any equivalent thereof in any religion) –
(i) lead worship or services remotely through the use of information and communications technology,
(ii) minister to the sick, or
(iii) conduct funeral services,
Regulation 5(1) made it a criminal offence for anyone to attend an event unless it was a ‘relevant event’. Relevant event was defined as ‘an event held for the purposes of any matter which falls within any subparagraph of Regulation 4(2)’. In other words, the listed reasonable excuses in regulation 4(2) exhaustively determined the events which it was permissible to attend. Therefore, the only permissible religious events were leading services remotely, ministering to the sick, and conducting funeral services.
Summer 2020 easing
On June 8, 2020, major changes were made to the scheme of restrictions. Rather than a general prohibition on leaving your home that also determined what events could be lawfully attended, the new approach prohibited (a) certain types of movement, (b) the holding of certain types of event, and (c) public access into certain types of premises where businesses were conducted or services provided. There were no restrictions on moving for religious purposes.
Regulation 6(1) prohibited the organisation of events for cultural, entertainment, recreational, sporting, social, community or educational reasons, unless the maximum numbers of people did not exceed 15. Events of other types were not prohibited. Section 31A(16) of the Health Act 1947 defines event as ‘a gathering of persons, whether the gathering is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, religious or other reasons…’ It followed, given section 19 of the Interpretation Act 2005, that events for religious reasons were not prohibited by the regulations and could lawfully be held indoors without any restriction on numbers.
During this period, stricter regulations applied for a time to Laois, Offaly and Kildare”
A third set of regulations was introduced on June 30, which applied in most counties until September. These regulations removed all movement restrictions but continued the same approach in relation to events. Regulation 5 provided that a person could not organise, or cause to be organised, an event for cultural, entertainment, recreational, sporting, social, community or educational reasons. Again, it was clear that there was no prohibition or numbers-restrictions on religious events.
During this period, stricter regulations applied for a time to Laois, Offaly and Kildare. This involved prohibitions on leaving one’s county without a reasonable excuse. Again listed among the specified reasonable excuses was:
(k) in the case of a minister of religion or priest (or any equivalent thereof in any religion) –
(i) lead worship or services remotely through the use of information and communications technology,
(ii) minister to the sick, or
(iii) conduct funeral services,
But importantly this could not have implied any limitation on the holding of religious events as there was no general prohibition on leaving one’s home, only leaving one’s county.
Again, events for religious reasons were clearly not included within the definition of relevant events and therefore not prohibited”
As with the countrywide regulations, the regulations for Laois, Kildare and Offaly prohibited the organisation of events for cultural, entertainment, sporting or community reasons, while allowing indoor and outdoor versions of these events subject to much stricter criteria. Again, there was no prohibition on religious events.
Autumn 2020 tightening
From September to October, restrictions were gradually tightened across the whole country, with more restrictive regimes at times for Dublin and Donegal. These regulations again prohibited the holding of ‘relevant events’, unless certain number limits were observed – with lower number limits for certain specified counties. A ‘relevant event’ was defined as ‘an event held … for social, recreational, exercise, cultural, entertainment or community reasons.’ Again, events for religious reasons were clearly not included within the definition of relevant events and therefore not prohibited. Stricter restrictions were applied to particular counties, including at some points again a prohibition on leaving one’s county without reasonable excuse, with the same listed excuses for ministers of religion or priests. In mid-October, this ban on movement was applied to all counties. But for the same reasons as above, this could not have implied any prohibition on religious events as there was no prohibition on leaving one’s home provided one remained within one’s county.
Winter 2020-2021 lockdown
On October 22, 2020, the state went into a renewed lockdown. This was eased during December, with disastrous consequences, and returned at the end of December lasting until mid-April 2021, when there was a very slight easing. Apart from the December period, the same prohibition on ‘relevant events’ applied, which did not include events for religious reasons. And there was again a criminal prohibition on leaving one’s home without reasonable excuse. One of the listed reasonable excuses for leaving one’s home was as follows:
in the case of a minister of religion or priest (or any equivalent thereof in any religion) –
(i) lead worship or services remotely through the use of information and communications technology,
(ii) minister to the sick, or
(iii) conduct funeral or wedding services,
Between mid-October 2020 and mid-April 2021, with the exception of the December period, there were two possible grounds on which it could be argued that religious services were prohibited: first, as a relevant event; second, as an aspect of the ban on leaving one’s home without a reasonable excuse. I have already explained in detail in an earlier post why the first is untenable and the second unconvincing, particularly in light of the interpretative principle that criminal liability must be clearly imposed. Given the minister’s very clear decision to permit events for religious purposes, it is difficult to argue that it cannot be a reasonable excuse to leave one’s home to attend such an event. This is reinforced by a comparison between the Spring 2020 lockdown and the Winter 2020-21 lockdown. In the former, the class of prohibited events was directly linked to the specified reasonable excuses for leaving one’s home. In the latter, the decision was taken to break the link between prescribed reasonable excuses and permitted events, undermining any interpretation that you cannot leave your home to attend an event that is otherwise permitted, unless it is listed as a prescribed ‘reasonable excuse’.
During the December period, matters were more relaxed. The ban on relevant events continued but with some exceptions. The restriction on leaving one’s home without a reasonable excuse was replaced with a restriction on leaving one’s county without a reasonable excuse, which was itself suspended for a period. It was a reasonable excuse for priests and ministers to leave their home to lead worship or services, without the qualification of ‘remotely through the use of information and communications technology’, although this was tightened again as of December 25, 2020. These changes in wording were not made in the context of a prohibition on people leaving their homes but rather in the context of a prohibition on people leaving their counties. They therefore do not shed much light on what should count as reasonable excuses for leaving one’s home.
Public perceptions
On 9 June 2020, the observatory [the Covid-19 Law and Human Rights Observatory] published a blogpost pointing out that religious services were no longer prohibited. Nevertheless, public debate seemed to proceed on the basis that they were prohibited. Personally, I found it quite difficult to disentangle whether the people involved (primarily government and NPHET officials, religious representatives and media commentators) either (a) realised that there was no legal prohibition and were involved in a discussion about what the public health advice should be or (b) were operating under a misapprehension about the legal position. Of course, it is possible that some participants realised there was no legal prohibition while others thought there was a legal prohibition. The observatory raised this issue in its submission to the Special Oireachtas Committee on Covid-19 Response, our interpretation at that point being that the removal of legal prohibitions on religious services appeared to be accidental and that NPHET and others had not realised that religious services were no longer legally prohibited.
As we moved into the Winter 2020-21 lockdown, there were two important Government statements about the position on religious services, both of which I analysed in my earlier post: the Minister’s statement to the Dáil that there was no penal prohibition on attending religious services and the Department of Health’s statement to thejournal.ie [a similar statement was also given to The Irish Catholic] that there was no penalty attached to religious events because they were not included in the definition of ‘relevant event’.
Other classes of prohibited events
To complete the picture, it is important to note that the regulations have prohibited or restricted other types of events: household events, sporting events, training events, weddings/wedding receptions, funerals.
Funerals have been restricted to limited numbers”
The regulations have been quite confused in their terminology around ‘weddings’ and ‘wedding receptions’, making it unclear whether they are to be viewed as a composite category, or whether different restrictions apply to weddings as distinct from wedding receptions.
Funerals have been restricted to limited numbers. It might be thought that this explicit allowance of funerals with limited numbers implies that other religious services are prohibited entirely. But an equally plausible interpretation is that, given cultural norms around funerals, a criminally enforceable restriction was thought necessary whereas no criminal measure was thought necessary for religious services.
The most recent changes
On Saturday April 10, the Minister for Health made SI 168/2021, which came into force on Monday April 12. This removed the prohibition on leaving one’s home without a reasonable excuse, replacing it with a prohibition on leaving one’s county or a 20km radius from one’s home without a reasonable excuse. This deleted the only arguable – although far from convincing – basis on which it could be contended that religious services were prohibited. The prohibition on relevant events continued, although now with an exception for members of two households meeting outdoors. Without doubt, this did not cover religious events.
In the case of a minister of religion or priest (or any equivalent thereof in any religion”
On Monday April 12, the Minister made SI 171/2021 which inserted Regulation 10A. This needs to be set out in full:
10A. (1) A person shall not attend a specified event in a relevant geographical location (regardless of whether or not, in the case of an applicable person, the event is held or to be held in his or her relevant travel area) other than in accordance with paragraph (2).
(2) A person may attend a specified event in a relevant geographical location where the person attends the event in order to –
(a) work, comply with a contract of employment or contract for services, or otherwise engage in work or employment, including work related to –
(i) the provision of services to, or the performance of the functions of, an office holder appointed under any enactment or under the Constitution, or a member of either House of the Oireachtas, the European Parliament or a local authority,
(ii) the provision of services essential to the functioning of diplomatic missions and consular posts in the State, and
(iii) farming or agricultural activities,
(b) participate in education, including education at a primary school, a secondary school, a university, a higher education institution or other education and training facility, crèche or other childcare facilities,
(c) go to an essential retail outlet for the purpose of obtaining items (including food, beverages, fuel, medicinal products, medical devices or appliances, other medical or health supplies or products, essential items for the health and welfare of animals, or supplies for the essential upkeep and functioning of the person’s place of residence), or accessing services provided in the outlet, for the applicable person or any other person residing in the person’s place of residence,
(d) access an essential service,
(e) fulfil a legal obligation (including attending court, satisfying bail conditions, or participating in ongoing legal proceedings), attend a court office where required, initiate emergency legal proceedings or execute essential legal documents,
(f) in the case of a minister of religion or 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
(g) attend to vital family matters (including providing care to vulnerable persons).
(3) This Regulation shall not apply to an event that is organised in accordance with Regulation 6(2), 6(3) or 10(1).
(4) In this Regulation, “specified event” means an event other than –
(a) a wedding reception,
(b) a sporting event,
(c) a training event, or
(d) a funeral.
(5) Paragraph (1) is a penal provision for the purposes of section 31A of the Act of 1947.
Disentangling what events this provision applies to is far from straightforward. We must first go back to the definition of ‘event’ in the primary statute:
‘a gathering of persons, whether the gathering is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, religious or other reasons…’
From this, we must subtract dwelling events (covered by regulations 6(1) and 6(2)), events for social, recreational, exercise, cultural, entertainment or community reasons (the ‘relevant events’ covered by regulation 10(1)), and wedding receptions, sporting events, training events and funerals).
What is left is commercial, work, educational, religious and other events. However, Regulation 10A(2) allows one to attend a specified event in one’s county or 20km limit in order to work or participate in education. So this leaves commercial, religious and other events.
It is also difficult to square with the Government’s earlier statements that no penalty attached to religious events”
But there are already significant restrictions on commercial activities, in that the owners, occupiers and managers of premises are prohibited, subject to criminal sanction, from permitting members of the public to access those premises unless they are an essential retail outlet or provide an essential service, defined in the schedule to the regulations. The only thing left is religious and other events, but it is entirely unclear what ‘other events’ might be.
In short, it is difficult to see that Regulation 10A accomplishes anything other than impose a criminal prohibition on religious services. Almost the same end could have been achieved by amending the definition of ‘relevant event’ to include ‘religious reasons’ and deal with them through Regulation 10, but this would have made the change clear in two words, compared to the 200 words it has taken me here.
I say ‘almost the same end’, because prohibiting religious events through regulation 10A rather than regulation 10 has resulted in the important difference that religious events are prohibited outdoors, while relevant events are now permitted outdoors so long as they only involve people from no more than two different households. This has the result that if a priest were to meet a parishioner for outdoor confession, they would both be committing a criminal offence; whereas, if two people were to meet for a chat or to exercise, they would not be committing a criminal offence. The differential criminalisation of facially similar religious and non-religious activities probably makes regulation 10A more vulnerable to legal challenge.
Regulation 10A appears designed with the sole purpose of criminalising religious services, while concealing that sole purpose through a bizarrely and unnecessarily convoluted scheme of legislative cross-references.
Why the new law now?
It seems to me that there are two possible explanations for the introduction of Regulation 10A. The first is that the Government believed (mistakenly, in my view) that the prohibition on leaving one’s home without reasonable excuse implied a prohibition on attending in-person religious services. The Government was sufficiently confident in this position to communicate it in a letter to Mr Declan Ganley at the end of March [revealed by The Irish Catholic] and yet accidentally removed the criminal prohibition a few days before the position articulated in that letter would be presented to the High Court. Realising its mistake, the Government then hurriedly introduced Regulation 10A to re-impose a criminal prohibition on religious services. This is implausible. It is also difficult to square with the Government’s earlier statements that no penalty attached to religious events.
While we must be cautious about attributing motivations, the more likely explanation is that the Government has known all along that religious services are not criminally prohibited. The Ganley litigation caused an accountability moment where the Government either had to create a legal basis for maintaining in court that religious services were criminally prohibited, or accept that religious services had not been criminally prohibited. The Government chose the former option. The new-found clarity is welcome from a rule of law perspective and allows an informed debate on whether the law is a proportionate and coherent response to the pandemic. But the obfuscation up to this point and the continued obfuscation about the reason for introducing the new restrictions is a damning indictment of the Government’s willingness to lead citizens through the pandemic in a way that respects citizens’ autonomy and capacity for reasoned choice. It suggests instead a preference for vaguely articulating a desired standard of behaviour and then tricking citizens into compliance through calculated ambiguity about the dividing line between legal obligations and public health advice.
Oran Doyle is a professor in law at Trinity College Dublin and director of the Covid-19 Law and Human Rights Observatory. This blogpost was first published on the Covid-19 Law and Human Rights Observatory Blog at Trinity College Dublin.