Declan J. Ganley v Minister for Health

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 20 December 2021
• Neutral Citation: [2021] IEHC 822
• Court: High Court
• Docket Number: [2020 No. 825 JR]

Between

Declan J. Ganley

Applicant

and

Minister for Health

Respondent

and

Ireland and The Attorney General

Notice Parties

[2021] IEHC 822

[2020 No. 825 JR]

THE HIGH COURT

JUDICIAL REVIEW

Mootness – Judicial review – Regulations – Applicant seeking to strike down regulations – Whether the applicant’s application was moot

Facts: The applicant, Mr Ganley, was a practising Roman Catholic. Under level 5 regulations brought in by the respondent, the Minister for Health, and the notice parties, Ireland and the Attorney General, to halt the spread of COVID-19, the applicant was not lawfully allowed to attend Mass. The applicant maintained that such restrictions are ultra vires the empowering legislation, the Health Act 1947 (as amended), and contrary to Articles 15.2, 15.4, 44.1 and 44.2 of the 1937 Constitution. On 6 November 2020, the applicant made an application, ex parte, to seek certain reliefs by way of judicial review to strike down the said regulations. At the time it was the stated intention of the Government to remove the restrictions imposed by the regulations as and from 1 December 2020. In light of this, the High Court (Meenan J) directed that the leave application be on notice to the respondent and notice parties and adjourned the matter to 8 December 2020. The applicant appealed that decision to the Court of Appeal. The appeal did not proceed, but the parties agreed to a “telescoped” hearing and the respondent and the notice party agreed not to raise the issue of “mootness”, notwithstanding that the impugned regulations had expired on 1 December 2020. The respondent and notice party abided by their agreement and the applicant sought to proceed with his application. Meenan J directed that the parties address the issue of mootness, as it was a central issue. The parties exchanged written legal submissions and a hearing was held as to whether or not the application was moot.

Held by Meenan J that the constitutional rights of freedom of conscience and the free profession and practice of religion are not absolute: Article 44.2.1°. Meenan J held that any restrictions on such rights must be “proportionate”. It seemed to Meenan J that the gravamen of the applicant’s case was that the restrictions on the attendance at Mass were disproportionate, rather than that there should be no restrictions at all. Meenan J held that the applicant’s reliance on Condon v Minister for Labour [1981] I.R.62 was misplaced. Meenan J noted that in Condon, the anticipated future legislation was directed towards a specific issue, namely: whether it was constitutionally permissible to enact legislation to prohibit pay agreements outside national pay agreements. Meenan J noted that in the case of O’Brien v Personal Injuries Assessment Board (No. 2) [2007] 1 I.R. 328, the statutory provisions in question were ones that were going to be used time and time again into the future. Meenan J held that the legality, or otherwise, of any future regulations is going to depend on whether the restrictions imposed are proportionate to the danger being faced. Meenan J held that finding that the rescinded restrictions were disproportionate would be of little value in considering the legality of similar restrictions that could be introduced in the future to deal with a different threat. Meenan J held that the provisions of Article 13 of the European Convention on Human Rights were not of assistance to the applicant: firstly, the impugned regulations were rescinded so the applicant, in fact, did not require a remedy; secondly, Meenan J did not believe the provisions of Article 13 should be read literally as, otherwise, statutes, such as the Statutes of Limitation, would be contrary to the Convention.

Meenan J held that the applicant’s application was moot and should be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Meenan delivered on the 20 ^th day of December 2021 .

Introduction

1 . The restrictions brought in to halt the spread of COVID-19 have affected almost every aspect of the lives of persons living within the State. This application concerns restrictions imposed on the practice of religion under regulations brought in by the respondent and notice parties.

2 . The applicant is a practising Roman Catholic. Under level 5 regulations, which I will detail later, the applicant was not lawfully allowed to attend Mass. He states in his amended Statement of Grounds:-

“The Mass is the pre-eminent form of public worship of Almighty God in the Roman Catholic religion.”

3 . In broad terms, the applicant maintains that such restrictions are ultra vires the empowering legislation, the Health Act, 1947 (as amended), and contrary to Articles 15.2, 15.4, 44.1 and 44.2 of the 1937 Constitution.

Application for Judicial Review

4 . On 6 November 2020, the applicant made an application, ex parte, to seek certain reliefs by way of Judicial Review to strike down the said regulations. At the time it was the stated intention of the Government to remove these restrictions imposed by the regulations as and from 1 December 2020. In light of this, I directed that the leave application be on notice to the respondent and notice parties and adjourned the matter to 8 December 2020. The applicant appealed this decision to the Court of Appeal.

5 . The appeal did not proceed, but the parties agreed to a “telescoped” hearing and the respondent and the notice party agreed not to raise the issue of “mootness”, notwithstanding that the impugned regulations had expired on 1 December 2020. The respondent and notice party abided by their agreement and the applicant sought to proceed with his application. I directed that the parties address the issue of mootness, as it was clearly now a central issue. The parties exchanged written legal submissions and a hearing was held as to whether or not the application was now moot. This is my judgment in respect of this issue.

Impugned regulations

6 . Section 31A of the Health Act, 1947 (as amended) authorises the respondent to make regulations for the purpose of preventing, limiting, minimising or slowing the spread of COVID-19. Such regulations may provide for the following:-

• (i) Restrictions to be imposed upon travel to, from or within geographical locations to which an affected areas order applies (s. 31A (1) (b));

• (ii) The prohibition of events, or classes of events (s. 31A (1) (d)).

7 . Section 31A (6) provides that a person who contravenes a provision of a regulation made under s. 31A (1) that is stated to be a penal provision shall be guilty of an offence. These regulations give effect to what was termed as “level 5” restrictions.

8 . Regulation 5 (1) of the said regulations provided that an applicable person shall not leave his or her place of residence without reasonable excuse. An “applicable person” is a person whose place of residence is located anywhere in the State. The applicant was an “applicable person”.

9 . Regulation 5 (2) provides, without prejudice to the generality of what constitutes a reasonable excuse for the purposes of Regulation 5 (1), that a reasonable excuse for travel includes travelling or moving for certain specified purposes. These purposes include:-

—-

“(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, …”

10 . The effect of these regulations was that it was an offence for the applicant to leave his residence for the purposes of attending Mass.

“Mootness”

11 . The impugned regulations expired on 1 December 2020. There was no disagreement between the parties as to what the mootness doctrine is. Reliance was placed on the following passage from the judgment of O'Donnell J. (as he then was) in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, where he stated:-

“… It is difficult to improve on the observation of Murray CJ in Irwin v Deasy [2010] IESC 35:

‘The mootness doctrine is applied by the courts 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’.”

As with many other doctrines, the mootness doctrine is subject to exceptions. The applicant submitted that he fell into an exception identified by a number of legal authorities.

12 . The applicant relied to a considerable extent on the decision of the Supreme Court in Condon v. Minister for Labour [1981] I.R. 62. In this case the plaintiffs were members of an association of bank officials who refused to be bound by the terms of national wage agreements. The association had concluded a separate agreement with a committee (representing the Irish banks) on the remuneration and conditions of service of the employees of the Irish banks during the period from 1 June 1975. On 15 December 1975, by order of the first named defendant, the Regulation of Banks (Remuneration and Conditions of Employment) (Temporary Provisions) Act, 1975 was brought into operation. Under this Act an order was made prohibiting payment by the banks of the increase in remuneration that was specified in the separate agreement....