Religious Freedom and Pandemic Restrictions

Eoin Daly, NUI Galway

 

There has been some confusion lately about the application of pandemic restrictions to religious worship. Oran Doyle has argued that while police have apparently threatened ‘at least one priest’ with prosecution, religious services are in fact not prohibited by the current regulations. This, as he has outlined, contrasts with the position that applied in the spring during the first ‘lockdown’. Meanwhile, the Catholic hierarchy have recently urged a ‘restoration of public worship’. While Oran Doyle has outlined the Rule of Law implications around the confusion of advisory guidelines with law, my  purpose in this post is to consider, at a more abstract level, what the constitutional position is in Ireland regarding legal restrictions (hypothetical or otherwise) on religious worship.

 

While this question would turn to a large extent on general principles of proportionality, my focus here is on the relative peculiarity of religious freedom as a constitutional right, both in Irish case law and more generally.

 

American lessons

In short, most plausible ‘tests’ for violation of religious freedom quickly run into conceptual difficulty and contradiction. This is most vividly illustrated by the history of religious-freedom jurisprudence in the United States. Until the 1990s, the standard test for applying the first-amendment ‘free exercise’ clause focused on the effect state actions had on religious freedom in practice – and particularly the centrality or importance of the religious practices or beliefs they affected. This raised intractable problems involving courts assessing, or somehow weighting the importance of the practices or beliefs affected by general legislative restrictions that were usually not targeted at religion as such. Take, hypothetically, the example of a general prohibition on face coverings, that, let us imagine, was not enacted with religion in mind, and predated any political controversy about religious face coverings. Supposing we were to decide that a violation of religious freedom was based on the effects of a measure, rather than its object or aim. But how is that effect appraised? It is obviously unsustainable to grant an automatic expectation of exemption, for religiously-motivated conduct, from every general prohibition of a specified type of conduct. On the other hand, however, using the effect of a measure, as a threshold or test for violation, raises the difficult prospect of courts making religiously controversial judgments about the relative weight or importance of various religious practices.

 

Partly in response to such conceptual difficulties, the US Supreme Court effected an about-turn in its first-amendment religious freedom jurisprudence in the 1990s. In the landmark case of Employment Division v Smith (1990), it held that no violation of ‘free exercise’ arises from legislative measures that are religiously ‘neutral’ and of ‘general applicability’ – regardless of their effects on religious practice. While this got around some of the conceptual difficulties of the test it had displaced, it caused controversy because of the seemingly precarious position in which it apparently placed minority religious practices in particular. Since it left the question of religious exemptions at the discretion of political authorities, it left open the prospect that minority religious practices, in particular, might be inadvertently or carelessly restricted by generally applicable legislative prohibitions. In any event, Smith shifted the focus of religious-freedom jurisprudence to a broad question of religious neutrality, with the Court often taking a broad approach in practice to considering whether impugned restrictions were ‘neutral’ in the broad sense.

 

Ireland: constitutional ambiguity

Irish constitutional jurisprudence has not escaped these conceptual difficulties, although they have not been confronted as explicitly or as vividly as in the United States. While we have relatively little case law relating to religious freedom, I have suggested in a previous article that our jurisprudence oscillates between two competing ‘grammars’ of religious freedom.  On the one hand, there is no unifying constitutional ‘principle’ to make sense of the religious-freedom provisions. Indeed, the text of the Constitution itself is flexible enough to accommodate quite diverse conceptualisations of the public status of religion. It can be read, on the one hand, as embracing religion – or perhaps a preferred version of it – as an integral aspect of the common good, to be protected and promoted by the State as such (the ‘communitarian’ reading). Alternatively, the Constitution can be read, in a more ‘liberal’ sense, as placing religion in the “private” sphere, as being largely a question of individual choice. A good deal of revisionist scholarship in recent years and decades has emphasised the relatively liberal and pluralist tenor of the constitutional provisions on religion, compared with the public perception of a Catholic or even theocratic Constitution. Still, however, one could hardly say that it straightforwardly embraces a liberal model of state neutrality towards religion. 

 

This conceptual confusion is most clearly expressed in the case law concerning religious education, where despite earlier judicial affirmations as to the centrality of Christianity and of religious identity in the constitutional order, the Supreme Court in more recent decades has reconceptualised state support for religious education as being justified merely in terms of facilitating parental ‘choice’, defined in religiously neutral terms.  And in the wider discourse on religious schooling, religion has often been depicted as something of a parent-consumer ‘choice’ rather than as a constitutive identity warranting specific constitutional recognition. 

 

Yet, as late as 2009, MacMenamin J in McNally v Ireland [2009] IEHC 573 described the Constitution as having “a monotheistic Christian ethos”,  in upholding legislative regulation of the sale of ‘authentic’ Mass cards. He observed that whereas “in United States jurisprudence there is a wall of separation … under the Constitution of Ireland there is a constitutional ‘domain’ of religious recognition”. This reading positions the Irish Constitution close to the spirit of Justice Scalia’s dissent against a judgment prohibiting public-school prayer where he criticised the Court’s (then) liberal majority for understanding religious practice as “some purely personal avocation” (Lee v Weisman 505 US 577, 645 (1992)).

  

Case law

This ambiguity of principle is reflected in the difficult question of whether religious freedom warrants exemption from generally applicable legislative restrictions that affect, but are not targeted at religious practice as such. In Quinn’s Supermarket v Attorney General [1972] IR 1, the Supreme Court held, based on a strict reading of the prohibition on religious “discrimination”, that religious exemptions from legislative prohibitions were unconstitutional as a form of discrimination, whether they are benign or otherwise. However, it also ruled that where religious exemptions are necessary to religious freedom, they are not only constitutionally permissible but constitutionally required, at least to the extent that such exemption is in fact necessary to accommodate the religious practice in question. 

 

The implication of Quinn’s Supermarket was, in theory, to eliminate any political discretion regarding religious exemptions. They are either constitutionally prohibited, or constitutionally required, depending on their necessity. One of the problems thrown up by this approach was the question of defining such necessity, both in terms of appraising the impact of legislative restrictions on religious practice, and the question of weighing this impact against countervailing public policy considerations.

 

Further uncertainty was added by a second landmark case on religious freedom, Murphy v IRTC [1999] 1 IR 12, which concerned the prohibition of a Christian evangelical radio advertisement on private commercial radio. Interestingly, the impugned legislative measure – a prohibition on TV and radio advertisements aimed at ‘religious … ends’ – was not a generally applicable prohibition but one targeted at religious activity specifically. However, what seemed most decisive in the Supreme Court’s upholding of the measure was what it perceived as its marginal impact on religious practice. Although ‘profession’ of religious beliefs is specifically protected by Article 44.2, the Court was swayed by the fact that the applicant would have access to other avenues for expressing his beliefs. The implicit underlying assumption – arguably a problematic one – is that evangelising on the airwaves is not essential to religious practice, and so receives little or no constitutional protection. The justifications which the Court accepted as outweighing the religious claim – in particular, the rather intangible concern for ‘divisiveness’ – seemed quite vague and abstract.

 

Application to pandemic restrictions

In terms of pandemic restrictions on religious practice – hypothetical or otherwise – there are a few tentative conclusions we can glean from the limited case law. In contrast with the U.S. case law, Irish courts have few reservations about appraising the significance of legislative restrictions for religious practice; in fact, this seems more decisive than the neutrality or general applicability of the restrictions themselves. It seems safe to say that a prohibition having the effect of preventing congregation for the purpose of religious service or worship would be accepted as affecting religious practice in a deep and significant way. What this suggests, I think, is that the constitutional question would likely be addressed with reference to generic principles of proportionality, but with a relatively intense or strict standard of review. It seems safe to say that a Court would not accept the relatively intangible justifications proffered in Murphy as satisfying a proportionality standard in relation to a closure of places of worship. Needless to say, more compelling and concrete justifications are available in this unique situation.

 

Finally, the recent case law of the United States Supreme Court is of relatively little use in guiding the equivalent question in Ireland. The Court narrowly upheld restrictions on religious worship early in the pandemic last spring, but narrowly ruled in the opposite direction in the autumn and again, in February, following the successful confirmation of Amy Coney Barrett. However, these cases were decided based primarily on the argument as to whether the relevant restrictions on religious worship were ‘discriminatory’, in the broad sense, when compared with restrictions even on differently positioned secular businesses such as shops, liquor stores, etc. For the reasons I have outlined, the constitutional question in Ireland would likely be decided based on quite different parameters. While a concurrent challenge based on religious ‘discrimination’ in Article 44.2 is possible, it seems unlikely to succeed given the circumstances. Rather, the argument is more likely to be one for particular treatment of ‘exemption’ for religious worship.

 

Eoin Daly is a lecturer in NUI Galway and author of Religion, Law and the Irish State (Clarus, 2012)

 

Suggested citation: Eoin Daly, ‘Religious Freedom and Pandemic Restrictions’ COVID-19 Law and Human Rights Observatory Blog (19 March 2021) https://tcdlaw.blogspot.com/2021/03/religious-freedom-and-pandemic.html

Conspicuous by its Absence: Explaining Ireland’s Minimal State Aid Response to the COVID-19 Pandemic

Christopher McMahon, Trinity College Dublin 

 

It was recently reported that among EU Member States Ireland has spent the least on pandemic-related State aid in the past year in proportion to its GDP. Ireland has spent €0.93 billion in State aid to businesses which amounts to 0.26% of GDP. The contrast with the countries at the other end of the European Commission’s State Aid Scoreboard is stark. France, which spent the most in absolute terms, granted €155.36 billion in aid amounting to 6.4% of GDP. Spain, which spent the most as a proportion of its GDP, granted €90.85 billion or 7.3% of GDP. Further, while there have been only 8 Commission decisions on different measures implemented by Ireland relating to the pandemic, 38 such decisions have been taken for Denmark, 31 for Italy and 22 for France. 

 

While Ireland is not a complete outlier, with 8 other Member States granting less than 1% of GDP, the headline figures give the impression that Ireland is either very fiscally conservative compared to its neighbours or very unwilling to use aid to deal with the pandemic, or both. This invites consideration of the reasons why Ireland sits at the bottom of this table despite the well-publicised and unprecedented income supports that have already been put in place in this jurisdiction.

 

The EU State aid regime 

First, it is worth taking a moment to consider what State aid is and how it is regulated in the EU. Articles 107-109 TFEU are designed to prevent Member States from handing out public money to private businesses. Article 107 TFEU sets out a general prohibition on State aid. State aid is defined loosely in the European Treaties and has been interpreted by the case law of the Court of Justice of the European Union to mean any measure that meets four conditions. The first is that it must be granted by the State or through State resources. Second, it must confer an advantage on an undertaking. Third, it must be selective in that it is targeted towards a relatively narrow group of undertakings rather than being a general measure applying to all undertakings in a comparable legal and factual situation. Fourth, it must have the potential to distort competition in the internal market and affect trade between Member States. All new aid must be notified to the Commission before it is implemented so that it can be reviewed for its compatibility with the internal market. 

 

Pandemic response of the European Commission

While Article 107(3) sets out general grounds on which the aid can be held to be compatible, the Commission has a lot of discretion in this area and frequently adopts guidelines on different types of aid. One such set of guidelines is the Temporary Framework which was adopted in March 2020 to allow Member States to grant more aid to respond to the pandemic. This has been amended on five occasions since then and it has been extended to aid measures granted no later than 31 December 2021. These rules are relatively permissive and allow aid for temporary income supports for businesses, the purchase of equipment to reduce infection risk and research into COVID-19. These rules, combined with the extremely low cost of borrowing for EU Member States throughout the pandemic, would appear to make the prospect of granting aid considerably more attractive. 

 

Ireland’s State aid response to the pandemic 

However, Ireland has not implemented very much aid. At the start of the pandemic, the Irish government notified a scheme of repayable advances to companies to adapt to COVID-19 restrictions. This was followed by various schemes of direct grants to restart businesses in the summer of 2020. Grants were also provided for research into COVID-19 and for investment into upscaling production of medicines and medical equipment to treat the disease. Indeed, the Irish government offered aid to pharmaceutical companies with manufacturing plants in Ireland to produce vaccines in Ireland but this was refused on the basis production facilities in Ireland were at capacity producing other medications. From August 2020 onwards, the aid measures were more targeted and were granted to businesses in the hospitality, entertainment and tourism sectors. 

 

Broad measures are not State aid

Before jumping to conclusions about the reluctance of the Irish government to spend money to support the ailing economy, it is important to note that not every State intervention will count as aid. It will be recalled that the State aid rules only apply to aid measures that are granted to undertakings rather than to citizens. This means that social welfare payments to citizens in the form of the Pandemic Unemployment Payment do not come within these rules. Further, it will be recalled that the prohibition on aid only applies to measures that are targeted towards specific groups of undertakings rather than general economic policy measures. This means that very general schemes, such as the Temporary Wage Subsidy Scheme and the Employment Wage Subsidy Scheme that replaced it, will not come within the general prohibition because they are offered to undertakings in general, subject to criteria relating to the impact of COVID-19 on their businesses. As the restrictions on economic and social activity arising from the pandemic begin to subside, these support measures may become more targeted to specific industries and more aid notifications may be required. 

 

Irish economy and aversion to aid

However, one must look further to find reasons why Ireland differs from other Member States in this respect. One reason might be that calculating aid as a proportion of GDP is problematic for Ireland. There are concerns about the accuracy of this measure for Ireland and its tendency to overestimate the size of the domestic economy due to the large presence of multinational companies in the State. This means that the proportion of the income the Irish government really has available to it may be underestimated by this measure. Another might be that the Irish economy has not been the worst affected by the pandemic, with its reliance on knowledge economy workers as well as pharmaceutical and technology manufacturing industries. Indeed, Ireland was the only EU country to enjoy a positive GDP growth rate in 2020. This may mean that less extensive supports are needed compared with other countries.

 

Despite these mitigating factors, it seems as though Ireland has at least something of an aversion towards State aid. Notwithstanding the continuing dispute over what an allegedly very large grant of aid to Apple through the tax system arising from a Commission decision in 2016 which has since been overturned and remains the subject of a further appeal, the reluctance of the government to resort to such measures in the pandemic is not inconsistent with policy over the last number of years. Excluding aid related to the financial crisis, Ireland has consistently been among the Member States granting the lowest amounts of State aid in the past few years, with the amount of aid in absolute terms granted by the State declining by almost two thirds between 2010 and 2017. This may simply be a policy choice on the part of the Irish government and the model of capitalism it has chosen to adopt. It has been suggested that strict application of the State aid rules has different effects on different models of capitalism, posing particular problems for more coordinated economies such as that of Germany. Ireland organises its economy quite differently. Outside the banking sector, Ireland does not have the same level of public ownership of industry that is seen in other Member States. A clear example of this can be seen in the decisions of other Member States to grant aid to national airlines and the Irish airline Ryanair’s unsuccessful attempt to challenge the approval of such aid from Sweden and France as unlawful. That being said, Ireland has paid lower levels of aid as a proportion of GDP than the UK since 2014, which might also be regarded as diverging from continental norms. It may be that Ireland has a particular aversion to the administration costs and review mechanisms that often come with notifying aid and is more willing to design measures so that they avoid the prohibition altogether. 

 

As a final point, it is interesting that despite this apparent preference for avoiding the State aid rules and the notification process altogether, the Irish government has not frequently cited the State aid rules as a reason for refusing to embark on a particular policy. This contrasts with its apparent willingness to cite the Constitution as obstacles to implementing a range of different policies, a practice which has been criticised in an earlier post on this blog by Rachael Walsh and elsewhere by David Kenny and Conor Casey. Given the potential of the State aid rules to touch on a very wide range of policies, they could easily become an alternative legal scapegoat. This may be particularly likely as more targeted supports replace the general schemes from the pandemic and the government’s need for support from the EU institutions in dealing with Brexit becomes less acute. 

Christopher McMahon is a PhD candidate at Trinity College Dublin. He holds degrees from Trinity College Dublin and the University of Oxford and was called to the Bar of Ireland in 2020.

 

Suggested citation: Christopher McMahon, ‘Conspicuous by its Absence: Explaining Ireland’s Minimal State Aid Response to the COVID-19 Pandemic’ (6 April 2021) https://tcdlaw.blogspot.com/2021/03/conspicuous-by-its-absence-explaining.html 

Facemasks in Prison During a Pandemic – How to Balance Safety, Security and Rights?

Sophie van der Valk, Trinity College Dublin 

Mary Rogan, Trinity College Dublin

 

One of the global responses to Covid-19 has been the call for the wearing of face masks. In Ireland, this has resulted in a requirement for public indoor spaces and public transport with a fine of €80 for non-compliance. It is additionally recommended in busy outdoor spaces and during visits with vulnerable people.  The use of facemasks in the context of prisons raises complex questions. Prisons have been considered high risk environments for the spread of infectious diseases such as Covid-19. To date there have been 51 cases among the prison population in Ireland.  While these numbers are relatively low, prison populations in other countries have been severely affected by Covid-19 outbreaks, most notably the US where 1 in 5 prisoners or at least 275,000 prisoners have tested positive for Covid-19. This is a rate four times highly than in the general population and highlights the specific risks in an overcrowded environment of the rapid spread of Covid-19. The risks of severe disease are also high in prisons, with people in prison disproportionately likely to experience underlying and high-risk conditions.  As such, people in prison may wish to wear masks in an effort to protect their health. On the other hand, prison authorities and prison staff may consider the wearing of masks a security risk, as they may prevent the identification of prisoners. In this blog, we consider some of the issues arising out of the wearing of facemasks in prisons by examining the approach in the Netherlands, comparing it with Ireland and assessing the role of  international human rights law. 

At the start of the pandemic in March 2020, prisoners in the Netherlands were banned from wearing face masks while in prison. This is in contrast to the position for those in the community, where masks are required inside any public space and on public transport, with non-compliance subject to a fine of €95.

 

According to the Dutch prison service, the wearing of face masks impacts on prison officers’ ability to recognise prisoners and the reading of facial expressions. This point has also been debated by other prison services such as Scotland and England and Wales, where the introduction of face masks in prisons for prison staff followed by prisoners took place at a later date than in the wider community. Relationships play a key role in prison environments and officers rely on being able to talk to prisoners and gauge their mood, a key part of ‘dynamic security’ which relies on relationships to maintain order rather than force. The prison service also expressed concern about the need to identify prisoners who may be involved in incidents on CCTV footage. In Heerhugwaard prison, a group of prisoners challenged this position and appealed to the courts for the ban to be lifted. This ban has since been reversed by the former Minister for Legal Protection, Sander Dekker, due to an increase in Covid-19 cases among the prisoner population and prisoners can now wear facemasks where a distance of 1.5 metres cannot be maintained. The Netherlands has had 25 cases of Covid-19 in prisons. In Ireland, prisoners are required to wear facemasks when they leave their cells and when in contact with prison staff. The initial position of the prison authorities in the Netherlands is hard to square with international human rights law on healthcare in prisons and has been criticised by former prison Governor, Madeleine van Toorenburg, for placing the ability to read expressions above the health of prisoners.

The Irish approach would appear to be a more balanced and proportionate way to manage the competing considerations in prisons. Facemasks have become a form of healthcare in the current situation, at least of a preventive nature. International human rights principles on prison rights outline that prisoners are entitled to healthcare equivalent to that available in the community. Article 24(1) of the UN Mandela Rules state that ‘[t]he provision of healthcare is a state responsibility. Prisoners should enjoy the same standards of care that are available in the community, and should have access to necessary healthcare services free of charge without discrimination on the grounds of their legal status’. The European Prison Rules, revised in 2020, state: ‘Prison authorities shall safeguard the health of all prisoners in their care’ and ‘[p]risoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation’. The WHO states that: ‘[t]he provision of health care for people in prisons and other places of detention is a state responsibility’ and additionally note that ‘experience shows that prisons, jails and similar settings where people are gathered in proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons.’ The European Committee for the Prevention of Torture has also indicated that ‘[a] prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community.’ Domestically, this has been interpreted to mean that those in prison are entitled to the care which someone outside of prison in receipt of a medical card would receive, Rule 33 Prison Rules 2007. 

It is also clear from these standards that decisions of healthcare staff about people in prison should not be overridden on operational grounds. Framing facemasks as forms of preventive healthcare, and knowing what we do know about their importance in confined spaces they must be so considered, preventing the wearing of facemasks would be in breach of these principles. Prisoners are unable to take the steps the rest of us can to secure their own health, and have no control over whom they share space with. As such, denying them access to facemasks cannot be considered justified even on security grounds. 

 

Sophie van der Valk is a PhD candidate on the PRILA project at TCD School of Law examining Prisoners’ Perceptions of Accountability in Prisons.

Mary Rogan is an Associate Professor in Law at the School of Law, Trinity College Dublin and PI on the European Research Council-funded PRILA project examining prison oversight. 

 

Suggested citation: Sophie van der Valk and Mary Rogan, Author, ‘Facemasks in Prison – safety versus recognition?’ (18 March 2021) https://tcdlaw.blogspot.com/2021/03/facemasks-in-prison-during-pandemic-how.html

 

 

Executive Power and the Right to Primary Education: The Case of School Closures

 Conor Casey, European University Institute

On 12 March 2020 then Taoiseach Leo Varadkar announced that the Government had taken the momentous decision to order the closure of primary and secondary schools and third-level institutions in response to climbing levels of COVID-19 infection. This closure would last until August 2020 for primary and secondary schools. On 6 January 2021 the Government ordered a further closure of primary and secondary schools, a closure that is currently being phased out.

 

Like many decisions taken by the Government in response to the pandemic, the repercussions of school closures are being felt very keenly by thousands of citizens and families. Teachers, pupils, and parents have tried to adapt to the difficulties of online teaching, struggled to balance work commitments with at-home learning, and striven to ensure children’s educational progress does not regress. 

 

Whether one agrees or disagrees with the merits or wisdom of the Government’s decisions, there is no doubting they are truly weighty ones that directly touch on the State’s constitutional obligation to provide for free primary education. On what legal basis did the Government take such a significant decision dramatically affecting the lives of thousands? Surprisingly, this question has received vanishingly little discussion. The purpose of this post is to outline the most plausible legal basis for the Government’s closure order and offer some critical thoughts.

 

Government power and the Constitution

The Irish Government derives its powers from two sources. One source of legal authority comes from statutes passed by the Oireachtas granting the Government, or a member of Government, statutory authority. Statues like these will typically provide a Government minister power to take X, Y, or Z action in respect of a particular policy area; or set out broad objectives to be achieved while giving a minister discretion on how to go about pursuing them through promulgating secondary regulations. Statutes make up, by far, the bulk of the Government’s legal authority. 

 

The second source of authority comes directly from the Constitution. The Constitution explicitly vests several powers in the Government, including power over the conduct of foreign affairs, the appointment of judges, defence of the State from invasion, and preparation of the budget. Aside from explicit powers vested by constitutional text, there is a fuzzy reservoir of constitutional powers housed within Article 28’s laconic vesting of ‘the executive power’ of the State. Article 28 gives the Government the constitutional power and duty to see the laws are faithfully executed, power to set up non-statutory tribunals of inquiry, plenary powers to regulate immigration for the State including the entry, residence and exit of immigrants, and the power to create non-statutory policy schemes. 

 

Article 28 has been used as the legal basis for many weighty policies: the IBC/05 residency scheme, Direct Provision, the State’s main policy document on family reunification for non-EEA migrants, its division of immigration permission into different ‘stamps’, and for several legal aid schemes. More recently, the High Court has confirmed the Government could rely on its executive power to underpin its widespread promulgation of public health guidelines exhorting citizens to take certain steps to help curb the spread of covid-19. 

 

There are several limits on using executive power to achieve policy goals. The most important is that it cannot be used to frustrate or usurp legislative power by purporting to amend, disapply or suspend a statute. Executive power cannot also be used to impose legal burdens or obligations on citizens – the hallmark of a legislative power reserved exclusively to the Oireachtas. Indeed, Simons J. in the Ryanair case held that any purported attempt to give the impression that executive power derived guidelines were legally enforceable would be an unconstitutional usurpation of legislative power. This means that constitutional rights like liberty, family, security of the dwelling, property, and access to primary education, cannot be restricted without a statutory basis.

 

Decision to close schools

On 12 March 2020 the Government ordered the closure of primary and secondary schools and third-level institutions as precautionary response to climbing levels of infection. This closure would last until August 2020. On 6 January 2021, the Government again decided that all schools – including special schools – were to be closed, in response to the third wave of the pandemic. In this second instance, the Government based its decision to order a blanket closure on guidance from NPHET, which maintained that while there was ‘very little evidence of transmission within schools’ the levels of mobility and linked activity that reopening could generate would bring an increased risk of further community transmission.

 

While statutory instruments have been used to implement the bulk of the Government’s lockdown strategy, it appears that the closure of schools came from a non-statutory source - a Government decision drawing on the executive power of the State to issue non-statutory policies. 

 

The blanket nature of the closure has been sharply criticised for its disproportionate impact on children with special educational needs or with poor access to online facilities. Some have argued the policy of school closure represents, in its current iteration, an unconstitutional infringement of the rights of children to be provided with primary education by the State.  A legal opinion prepared for the Children’s Rights Alliance argued that ‘children with special needs for whom online learning is not practicable are not receiving any educational provision at all’ and that many mainstream primary students lack the ‘IT facilities and adult supervision’ to make use of the online educational provision.

 

Are there any problems with closing schools via executive power?

There is, in my view, nothing inherently problematic with the Government relying on its non-statutory constitutional powers to pursue policy goals. Using executive power unilaterally and without a statutory basis can be a useful way to respond rapidly to a policy problem, and to maintain a high degree of flexibility. The common good, to which the Irish Constitution orients all political life, arguably demands a unified and energetic executive able to act in this manner where necessary.

 

But relying on executive power to pursue policies has its detractions. Policies created through executive power are simply not subject to the same level of deliberation and scrutiny as those stemming from bills passed through the legislative process. One does not need to work from an unrealistic ideal-type image of the parliamentary process to suggest that it offers some level of increased scrutiny and debate more than unilaterally issued executive measures; an increased level of debate and scrutiny which can be useful for bringing perspectives to bear that might have been overlooked or given inadequate consideration by Government or its civil servants. 

 

Such inputs can spark public debate and pressure for policy alterations. In this context, it is worth considering whether the need for statutory authority to issue a closure order would have led to more political debate in the Oireachtas about the disproportionate impact on children with special needs? Would it have led to a more tailored policy suitable to their needs? What can be said at least is that the chances such concerns would have been aired and debated were vastly more likely in a more open and deliberative forum like the Oireachtas. 

 

More problematic, from a strictly legal perspective, is whether the closure of schools can be conceptualised as a restriction of children’s constitutional rights as opposed to merely being a different way of regulating or structuring their exercise. The more charitable interpretation is that the Government has not restricted the right to primary education but regulated it in a manner suitable to the current circumstances of the pandemic. That is to say, the mode of delivery might have changed, but the Government is still allocating the resources to vindicate the right to primary education as before. The less charitable interpretation, one reached by counsel briefed by the Children’s Rights Alliance, is that it is reasonable to conclude there are ‘categories of children for whom no educational provision is currently being made.’ In other words, their constitutional rights are being de facto restricted.

 

I do not profess an opinion either way here save to say that, to the extent one can view the closure of schools as a restriction on the rights of some children to access primary education, then the constitutional propriety of relying on executive power to close schools diminishes rapidly and the need for a legislative basis to lawfully ground such action becomes more pressing. 

 

Conor is a Max Weber Fellow at the European University Institute and incoming Lecturer at the University of Liverpool School of Law & Social Justice. The author would like to thank Hilary Hogan for helpful comments on the post.

 

Suggested citation: Conor Casey, ‘Executive Power and the Right to Primary Education: The Case of School Closures’ (11 March 2021) https://tcdlaw.blogspot.com/2021/03/executive-power-and-right-to-primary.html

 

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.