THE RECENT LIFTING of restrictions has provided some measure of respite from a pandemic that has been raging for the last 18 months.
The government’s regulation of the pandemic has been a combination of powers exercised by statute or statutory instrument and public health guidance.
As was pointed out by a report commissioned by the IHREC, there hasn’t always been a clear distinction made between the two. People may often have the impression that what the government presents is the law, when they are simply presenting public health advice.
A good example of this is the 5km limit, which was a geographic limit only if you were exercising; there was no limit on other activities.
This question has become more vexed this week with the intervention of the Minister for Health urging that Catholic priests should not perform communions or confirmations.
The basis for this is public health advice, rather than a statutory provision. The fact that it is based on public health advice means that the Catholic authorities do not have a legal duty to follow these rules, and this was conceded by the Minister, who nonetheless urged the clergy to ‘stick with them’.
The basis for this is that they can be ‘spreader events’, which could lead to increased transmission of Covid- 19. What went unmentioned by the Minister is that the ‘free profession and practice of religion’ is a right guaranteed under Article 44 of the Constitution.
As noted above, the intervention was made on the basis of public health advice, rather than a statute, so the Minister may have felt that no question of constitutionality arose.
A more fundamental question, however, is what the position of the Constitution is in our civic life? Does it operate solely negatively, used by the courts to strike down legislation or by the Government to refuse to legislate?
Or is there another dimension, where it tries to set a baseline of our communal life, and which means that the State should try to integrate it into their decision-making?
The restrictions imposed by the coronavirus pandemic put this distinction into sharp relief.
The basic structure of the State’s response has been to assume a certain aggregate amount of contact is acceptable, and to vary this depending on the prevalence of the disease, the rate of spread, the risk of transmission, and the desirability of the activity being pursued.
This is why you had the idea of key workers at one point in the pandemic; their jobs might have had the same risk of transmission as a non-key worker, but the desirability of the activity being pursued meant that different restrictions applied.
Economic interest
During the height of the January wave, the government adopted a restrictive approach in order to drive down the number of cases. This lead to a quite restrictive approach to all facets of life, including education, socialisation, and religion.
In Scotland, the legal restrictions on attending church were held to be in violation of the European Convention on Human Rights and Fundamental Freedoms under the UK’s Human Rights Act 1998 because it went further than the Scottish Government were legally allowed to do.
This was in part because when the Scottish Government approached this new wave of coronavirus, it allowed certain indoor activities and could not justify the exclusion of the church activities from those lists. It is not clear how the courts in Ireland would have decided if a case had been brought before it as the restrictions were more heightened in Ireland than in the UK.
Declan Ganley’s attempt to have the case tried was ruled inadmissible as the restrictions had changed before it could be heard by the courts.
The current structure of the rules is to gradually ease the restrictions that do exist. The most contentious of this has been the resumption of indoor dining, with the Chief Medical Officer insisting at a briefing that Nphet was “seeking to ensure economic activity could resume as soon as possible…”
As both indoor dining and confirmation take place indoors, it is difficult to see what exactly the epidemiological basis for the distinction between the two is.
The point about spreader events linked to the activity was also that used to ban attendees at matches in 2020; this is obviously no longer in force.
Moreover, the resumption of baptisms on 5 August is equally perplexing if attempting to understand it as related to issues such as ventilation – it would take place in the same venue, and would presumably give rise to the same risk of social mixing.
There is a clear economic interest in the State allowing the resumption of economically productive indoor activities, and this has fed into the NPHET planning for the easing of restrictions.
What appears to have been overlooked, however, is the need to ensure the enjoyment of constitutional rights can also take place.
It is quite unfortunate, therefore, that the government hasn’t simply indicated a preference for a limited number of communions and confirmations to take place on a daily basis, say one a day.
This would not significantly raise the risk profile, and the public health guidance in relation to church services could simply remain in place.
Dr Donal Coffey is an Assistant Professor in Law at Maynooth University
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