Tuesday, March 9, 2021

Religious Services and the Rule of Law: Authority and Coercion

Oran Doyle, Trinity College Dublin

 

Introduction

There have been further media reports of the gardaí threatening prosecution of those who organise or attend religious services. This is one of the principal rule of law issues identified in the recent report by the Irish Human Rights and Equality Commission, which I co-authored with Conor Casey, David Kenny and Donna Lyons. In this blog post, I review the two grounds on which it could be argued that a criminal offence is committed in this context, rejecting each. I shall contrast the current law to the position that applied during the first lockdown, in which religious services were unlawful. I shall then review several official statements on this issue before concluding with some observations about the rule of law.

 

Events

Section 31A(1)(d) of the Public Health Act 1947, as inserted by the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (the 2020 Act), gives the Minister for Health the power to make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19, including the prohibition of events or classes of events. Section 31A(16) 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. Section 19 of the Interpretation Act 2005 provides that a word or expression used in a statutory instrument has the same meaning in the statutory instrument as it has in the enactment under which the instrument is made.

 

Regulation 8 of the lockdown regulations – currently SI 701/2020 as amended – makes it a criminal offence for a person to organise a relevant event. (The Observatory maintains a consolidation of all the regulations here.) Regulation 2 defines ‘relevant event’ as an event held, or to be held, for social, recreational, exercise, cultural, entertainment or community reasons. It is beyond argument that ‘relevant event’ does not include events held for religious reasons; religious events are therefore not prohibited by Regulation 8. This interpretation is reinforced by a comparison with regulation 5, which simply prohibits events in dwellings—without any qualification.

 

Regulation 8 makes it a criminal offence to organise a funeral where the number of people attending exceeds 10. Regulation 9 makes it a criminal offence to organise a wedding reception – but not a wedding – unless the person takes reasonable steps to ensure the number of persons attending is no more than six.

 

Leaving one’s home

Regulation 4(1) makes it a criminal offence to leave one’s place of residence without a reasonable excuse. Regulation 4(2) provides a non-exhaustive list of reasonable excuses. The only relevant listed excuses are: 

 

(l) attend a funeral or a wedding; …

(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 or wedding services,

 

Could it be argued that these listed excuses imply that the general category of ‘reasonable excuse’ does not include leaving one’s house to organise or attend other types of religious service?

 

Such an argument is unconvincing. The Regulations take great care to define the class of prohibited events in a way that does not include religious events. This implies that it must be permissible to leave one’s home to organise and/or attend those events. By the same token, leaving one’s home to attend a wedding reception is not a stipulated reasonable excuse under regulation 4(2). But what would be served by regulation 8 explicitly allowing six people attend wedding receptions if it is not a reasonable excuse—through regulation 4(1)—to leave one’s home to attend a wedding reception? In other words, any vagueness of the general ‘reasonable excuse’ in regulation 4(1) should be resolved in a way that coheres with what is permitted by the other regulations. Any doubt on this point is resolved by the general legal requirement to give a strict construction to provisions that impose penal sanctions.

 

The original lockdown regulations

It is instructive to compare the current law with that which applied during the first lockdown, previously analysed here.

 

SI 121/2020 had a similar general prohibition on leaving one’s residence without a reasonable excuse in regulation 4(1), with a non-exhaustive list of reasonable excuses in regulation 4(2). Regulation 5 prohibited organising or attending an event unless it was a ‘relevant event’, defined as any event ‘held for the purposes of any matter which falls within any sub-paragraph of Regulation 4(2)’. In other words, the non-exhaustive reasonable excuses for leaving one’s home exhaustively set the scope of permissible events.

 

This legislative framework would support the argument canvassed at the end of the last section, i.e. relying on the defined reasonable excuses to determine what events one can leave one’s home in order to attend or organise. The fact that the current regulations have rejected this framework, however, is relevant legislative history that undermines the argument canvassed above.

 

Prosecutorial confusion

On Friday 6 March, RTE reported that the Archdiocese of Dublin had advised priests not to give communion to parishioners after Mass, either inside or outside churches. The Archdiocese is entitled to give such advice, as indeed would be the Government. But the advice appears to have followed pressure from the gardaí. The Archdiocese stated:


Drive-in masses are not permitted as no gatherings of people outdoors or indoors are permitted.


If this is intended to be a statement of the legal position—and it is difficult to read it any other way—it is categorically incorrect, for the reasons stated above.

 

This echoes a previous controversy from last November—when the relevant law was the same—in which the gardaí threatened to prosecute a priest in Cavan for saying Mass. The Irish Times reported:

 

Fr Hughes confirmed that the gardaí had told him this was his last warning and if he was caught celebrating Mass again with people in the church, a file would be sent to the Director of Public Prosecutions and he would be prosecuted. He said gardaí had told him the penalty was a fine of up to €2,500 or six months in jail.

 

Again, this statement of the legal position was categorically incorrect.

 

Government statements

In the Dáil debate on the extension of the 2020 Act, Michael MacNamara TD stated that priests would be committing a criminal offence if they opened the doors of their churches for Mass. The Minister for Health assured the house that religious services were non-penal and there was no penalty attached to them. Deputy MacNamara responded that this was untrue. The Minister responded that he had signed the regulations the previous night and could assure the House that it was a non-penal provision and would remain thus.

 

Both Deputy MacNamara and the Minister were incorrect. Conducting religious services was not a criminal offence, but this was simply because it was not covered by the Regulations at all, whether as a penal or non-penal provision.

 

There followed some public controversy and two weeks later, the Department of Health issued a statement to thejournal.ie. It is instructive to set out this statement in full:

 

There is no penalty attached to religious events because they are not included in the definition of “relevant event” for the purposes of Regulation 8.

 

Regulation 8 provides for restrictions on the organisation of a ‘relevant event’. A ‘relevant event’ is defined at Regulation 4 as ‘…. an event held, or to be held, for social, recreational, exercise, cultural, entertainment or community reasons…’. A relevant event does not include an event held for religious reasons.

 

One of the reasonable excuse for leaving one’s home listed in Regulation 5 is (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. This list of reasonable excuses is non-exhaustive.

 

The Government’s strategy Resilience and Recovery 2020 – 2021: Plan for Living with Covid contains a five-level Framework of Public Health Measures which sets out the types of activities can continue and those that will be curtailed at different points in time, depending on the level of virus transmission. At all times, the overarching priorities continue to be the protection of the most vulnerable and the protection of essential public services of education and health and social care.

 

In particular, the Framework provides for restrictions on gatherings of people indoors given the higher risk associated with these types of activities. Under the Framework, religious services can take place on site (with appropriate protective measures) during Levels 1 and 2 and they are required to move online in Levels 3, 4 and 5.

 

Weddings and funerals are exceptions and can continue at every level with limited numbers.

 

Churches and other places of worship can remain open for private prayer. It is also important to note that at all levels, Ministers of Religion are permitted to travel to perform a service on-line, to minister to the sick, and conduct a funeral or wedding ceremony.

 

This statement is a masterpiece of misdirection. In the first three paragraphs, the Department correctly sets out the legal position as I have summarised it above. The statement—issued while the country was in ‘Level 5’—then seamlessly moves to a discussion of the Government’s five-level ‘Framework of Public Health Measures’ and talks about measures that ‘can continue’ and measures that ‘will be curtailed’, ‘restrictions on the gatherings of people indoors’, and that ‘religious services … are required to move online in Levels 3, 4 and 5.’ Emphases added.

 

The statement is only coherent if we interpret the permissions, curtailments, restrictions and requirements of the last five paragraphs as public health advice. Otherwise, they contradict the first three paragraphs. But the language used appears calculated to create the opposite impression, i.e. that they are mandatory and therefore by implication legal requirements—since the state needs a legal basis to restrict people’s freedoms.

 

In these circumstances, it is scarcely surprising that gardaí around the country have formed the mistaken belief that religious services are legally prohibited.

 

The rule of law

The permissibility of restricting religious services is an important issue, which will be addressed on this blog later this month by Dr Eoin Daly. But if we focus exclusively on the permissibility of particular restrictions in the Government’s COVID response, we are in danger of missing the wood for the trees. Once we step back from immediate controversies, we see that at the core of the Government’s response lie not restrictions on activities but rather confusion over the extent to which activities are restricted. Rather than clearly distinguish between what citizens are required to do and what they are requested or advised to do, Government statements frequently encourage people to believe that their legal obligations are more restrictive than is in fact the case.

 

When faced with what Alan Eustace in a podcast about the IHREC report aptly called ‘accountability moments’—whether legal proceedings such as those instituted by Ryanair or questions in the Dáil on religious services—the Government is quite capable of stating the legal position correctly. But otherwise, the strategy often appears to be to set the legal restrictions at a certain level, imply a higher level of restriction through misleading public pronouncements, and then allow legally ungrounded threats of prosecution to bring people in line with that higher level of restriction.

 

This approach may have raised fewer issues in the early stages of the pandemic when the Government made a virtue of ‘policing by consent’. But the last six months have seen a much broader extension of criminal sanctions, buttressed by higher penalties and enhanced enforcement powers including on-the-spot fines.

 

On 26 February 2021, the Irish Times reported that the gardaí had issued almost 10,000 on-the-spot fines for covid breaches. The Health (Amendment) Act 2021 just passed by the Oireachtas raises the maximum penalty for offences under the Regulations from €2,500 to €5,000 and the maximum level for an on-the-spot fine from €500 to €2,000. The ‘relevant event’ offence is currently subject to the maximum on-the-spot fine of €500. While such fines can of course be challenged in court, the power of a garda to issue such a fine significantly increases her authority over a citizen in any given situation. That is precisely why on-the-spot fines were introduced. It is deeply troubling that gardaí appear to have a complete misunderstanding of the scope of criminal liability under some of the provisions in respect of which they are empowered to issue on-the-spot fines.

 

This is not to argue against greater enforcement of the restrictions; such may well be justified. But greater enforceability requires greater clarity about what the law actually prohibits—for citizens and gardaí alike. The saga of religious services is symptomatic of how Ireland has fallen far short in its respect for the rule of law.

 

Oran Doyle is a professor in law at Trinity College Dublin and director of the COVID-19 Law and Human Rights Observatory.

 

Suggested citation: Oran Doyle, ‘Religious Services and the Rule of Law: Authority and Coercion’ (9 March 2021) https://tcdlaw.blogspot.com/2021/03/religious-services-and-rule-of-law.html


* updated 12/03/21 to correct some formatting and typographical errors.

 

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