Rónán Mullen (Independent) | Oireachtas source

It would be good if we had a debate in this Chamber on that last important and sensitive topic.

Article 44.2.1° of the Constitution states, "Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen." Article 9 of the European Convention on Human Rights binds Ireland to ensure that "Everyone has the right ... either alone or in community with others and in public or private, to manifest his [one might say his or her] religion or belief, in worship, teaching, practice and observance."

Some 1.2 million people, representing 36% of all adults, exercise these rights on at least a weekly basis by attending a religious service. However, under the current Covid regulations, SI 448 of 2020, in force since 21 October, the organiser of any event is liable for a fine of up to €2,500 or up to six months in prison. No exception was made for religious gatherings of any kind or of any denomination.

It is not an exaggeration to say that this is the first time that religious leaders have been threatened with prosecution for holding religious services since the last of the Penal Laws was abolished in the late 1700s. This blanket ban on worship is a flagrant breach of the constitutional guarantee in Article 44.2.1°. In 1972, in the case of Quinn's Supermarket v. Attorney General, the Supreme Court ruled that laws of general applicability which have the effect of preventing the right to practise religion are unconstitutional unless they include a carve-out protection for religious practice and any restrictions of that right must also be proportionate.

The European Court of Human Rights has repeatedly ruled that governments must conduct a detailed scientific analysis showing that a ban is absolutely necessary on public health grounds. However, the Minister for Health, Deputy Stephen Donnelly, has already suggested in the Dáil that no such analysis exists. On 22 October he told Deputy McNamara that he would "challenge NPHET to provide the evidence". On 3 November Deputy Nolan asked a parliamentary question seeking the evidentiary basis for the restrictions on public worship.In a quite remarkable 800-word written reply, the Minister, Deputy Stephen Donnelly, provided no evidence and completely dodged the question he was asked. This suggests that the restrictions were applied arbitrarily, with no study of the available evidence. That is a breach of the Constitution and the convention.

I would be grateful if the Minister of State would state clearly whether the Minister for Health sought advice from the Attorney General on the constitutionality of these regulations, given the failure to make an appropriate exclusion for matters concerning religious worship, and what that advice was. The first part of the question can be given a "Yes" or "No" answer. Was advice sought from the Attorney General? Second, has an evidentiary analysis been compiled by the Department of Health on the need for such a blanket ban, given that such an evidentiary analysis would be required by the European Convention on Human Rights? Third, why was no detail given to the Dáil or the Seanad up to this point?

I would appreciate an answer to those questions. We all understand the need for restrictions for the sake of public health, and why the Government might urge such restrictions on people as a moral matter, as it were, and, if necessary, as a legal matter. However, where the Constitution is so clear on freedom of religious worship issues, it appears to be inadequate and unacceptable that legislation providing for penalties in the context of the breach of such restrictions would not nod, at least, to the constitutional reality and say that the State is not constitutionally permitted to impose penalties in this area. Good lawmaking would require that. That would not stop the Government from urging religious leaders, who have been very anxious to be compliant in all this, and religious communities not to have public gatherings in certain circumstances. However, to legislate for restrictions and penalties, knowing there is a constitutional problem with such penalties, seems at least sloppy and, more seriously, disrespectful to the State, the Constitution and the law.