Rónán Mullen (Independent)
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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.

Frank Feighan (Sligo-Leitrim, Fine Gael)
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I thank Senator Mullen for raising this matter. I would love to see the churches open again. Indeed, I, my wife and my family are looking forward to returning to mass, and I am proud to say that as a politician.

The Government's strategy, in line with the public health advice, is disease suppression. Covid-19 spreads when individuals and groups come into close contact with each other, enabling the virus to move from one person to another. The framework for restrictive measures is framed to account for periods when there is low incidence of the disease, with isolated clusters and low community transmission, through to situations where there is high or rapidly increasing incidence and widespread community transmission. It recognises the need for society and business to be allowed to continue as normally as possible. The framework takes account of the societal and economic impacts of the response to Covid-19. Nuanced and sectoral responses are in place to ensure the number of people impacted will be kept to the minimum necessary to control the disease, given the psychosocial impacts of the disease on the population.

With the recent epidemiological situation of high incidence of disease, widespread community transmission and increasing hospitalisations and deaths, it was necessary to put in place significant restrictions at level 5 to arrest the current trajectory of the disease and break transmission chains. This means asking people to stay at home and eliminating as much activity and contacts as possible to ensure that opportunities for the virus to transmit are minimised. Unfortunately, this includes moving religious services online, with places of worship remaining open for private prayer only and exceptions continuing for funerals and weddings, where 25 may attend. It is important to note that at all framework levels, ministers of religion are permitted to travel to perform a service online, to minister to the sick, and to conduct a funeral or wedding ceremony.

These restrictions have posed major challenges for the religious community and they are to be commended on how they have responded. By adopting new ways of connecting through social media and various communication channels, the church has continued to bring comfort and assistance to those in need, in particular those who are grieving. It is acknowledged that these restrictions impact on the spiritual well-being of faith communities, but the measures in place to suppress the disease transmission are intended to minimise the risks to public health while striking the right balance in prioritising and protecting some activities over others.

Regular ongoing contact is maintained with the faith groups and non-confessional organisations by the protocol and civic policy division of the Department of the Taoiseach, especially with regard to specific queries on interpretation of the Covid-19 guidelines and regulations. In this regard, the Taoiseach had a number of Covid-19 related meetings with faith groups. On 8 April 2020, the Taoiseach held a meeting with leaders of the main faiths and non-confessional organisations to discuss the effects Covid-19 is having on their communities. On 14 May 2020, the Taoiseach met with representatives of the Catholic Church, Archbishops E. Martin, D. Martin and K. O'Reilly, to share thoughts on the reopening of places of worship over the course of the summer. The church shared information on the work that is being done at all levels to develop a national church plan for safe reopening and emphasised it would play its part in applying public health measures to ensure the health and safety of its congregation.

A further meeting with the Catholic archbishops was held last month. Discussion at that meeting focused mainly on the effect which the current Covid-19 restrictions are having on the health and well-being of the faith community and the great desire to return to worship as soon as possible. The archbishops emphasised that they are fully supportive of the public health messages, but highlighted that coming together in prayer and worship, especially for mass and the sacraments, is fundamental to Christian tradition and a source of nourishment for the life and well-being of communities. The importance of gathering for worship as a source of consolation and hope at Christmas time was stressed. The need for a shared understanding of the effects of the pandemic as it evolves and to align our response accordingly was recognised. All agreed on the importance of solidarity in facing and overcoming the challenges of Covid-19 together. Pastoral work continues as we enter the traditional time of remembrance in this month of November.

Rónán Mullen (Independent)
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I thank the Minister of State for his response. His personal expression of the importance of public worship for him and many other people will be appreciated by people of faith. However, he is in the unfortunate position of not being the Minister with Cabinet responsibility and having to come to this House to give a reply that does not address the core point I raised. There appears to be no constitutional justification for creating restrictions with penalties and not excluding public worship. In the Dáil, in response to Deputy Nolan, the Minister said that it could be noted that holding a religious gathering is not a penal offence. How does this make sense if there are provisions for a fine and potential prison for holding gatherings but no exclusion made for religious gatherings?

This is extremely problematic. As I and Members of the Dáil have pointed out, faith communities have been extremely compliant and have led by example. There appears to be no evidence that there has been a spread of the virus associated with religious gatherings. In that context, if we return to level 3, it would be intolerable if the Government were to continue to pretend, implicitly or explicitly, that it is somehow against the law to hold religious gatherings. Let it propose what it wishes, but it should not suggest that this is against the law. In light of what we know, it would also be intolerable if there would not be the possibility of public worship, as technically would be the case if we only return to level 3. It is clear that we need a modified level 3. That message must be conveyed, loudly and clearly. The Government has not done its work properly here by proposing to legislate to penalise those who organise religious gatherings when, in fact, it has no legal or constitutional basis for being able to do so.

Frank Feighan (Sligo-Leitrim, Fine Gael)
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I thank Senator Mullen for being so diplomatic in his response to my reply. The Government recognises the immense sacrifices that are being made by the country in this difficult time. As I mentioned, there has been significant engagement and solidarity from the Catholic Church and other faith communities at all stages through the pandemic to ensure the protection of individuals and communities from Covid-19. I agree with the Senator. As a politician and Minister of State and as a citizen, I believe the churches have done extremely well. They have gone out of their way to put all the necessary protections in place. I have highlighted to the Government that this should be taken on board. I hope that when we go down to level 3, it will be a modified level 3, as the Senator said. I look forward to a time when people who are responsible, and the churches and faith leaders are responsible with their congregations, will get the answer we all want.