Businessman Declan Ganley has urged the High Court to hear his challenge to the legality of the ban on attending public religious worship, which operated at stages during the Covid-19 emergency.
Neil Steen SC, for Mr Ganley, argued on Friday, although the disputed regulations have lapsed, the case raises important legal issues about the balance between the right to public worship and public health.
The case is about the “outright criminalisation” of the act of leaving one’s home to attend public Mass, he said. Mr Ganley was not arguing for an "absolute" right of public worship but maintains any such infringement must be justified.
It was “absurd” for the State to deny any infringement at all and its real defence is on public health grounds, based on expert evidence mostly not before the Minister for Health when the regulations were made, he said. Based on the State’s own data, there was no evidence of any outbreak of Covid-19 associated with any Roman Catholic Mass or other public religious service, he said.
There is “substance” to this case, underlined by decisions from the Scottish and US courts which struck down similar regulations, he said. It would be of benefit to Mr Ganley, all those to whom religious belief is important and for whom the ban was an "open wound", and the State itself, to decide it, he urged.
If the case is not heard, the State will have “outmanoeuvered any effort at judicial supervision” and the administration of justice could also be held in disrepute, he said.
In submissions for the State, Catherine Donnelly SC said, on the facts of this case and applicable law, it appeared the proceedings should be held to be moot (pointless).
Burden of proof
It was for the court to decide if Mr Ganley’s side had met the burden of proof to show it was not moot, she said.
Mr Justice Charles Meenan will rule on a later date whether the case is moot or should proceed to hearing.
Mr Ganley, a practising Roman Catholic, claims the regulations meant he could not leave his home to attend Mass in breach of the State's guarantee of the free practice of religion in Article 44 of the Constitution. He also alleges breach of Article 9 of the European Convention on Human Rights, which provides for the right to freedom of thought, conscience and religion.
His case is against the Minister, with Ireland and the Attorney General as notice parties.