Of Mass and Masquerade

On May 10, the Irish government lifted its ban on public worship. Attendance is now limited to 50 people, regardless of the size of the church building, and irrespective of vaccination levels. 

Something bizarre has been happening in Ireland. On the one hand, the ban on public religious observance throughout the pandemic has seemed draconian. Whereas public worship has continued up the road in Northern Ireland, the Republic of Ireland has been almost alone among European countries to persist with such a ban, leading to comparisons with the Cromwellian bloodbaths of the mid-seventeenth century and the Penal Laws imposed after the Reformation by the Protestant parliament. But there is also a doubt whether this ban actually existed throughout the pandemic in the first place, and herein lies the true story of Ireland now. 

On April 12, 2021, in the wake of the second Easter Sunday running without church ceremonies, the government introduced Statutory Instrument 171, which contained an explicit prohibition of public worship. After a year of declining to open churches, denying the sacraments to its own faithful, and in many instances leaving Catholics to die without a priest, the church leadership suddenly seemed to be awakening to the smell of coffee. The archbishop of Armagh and primate of All Ireland, Eamon Martin, said that this statutory instrument was introduced “in a clandestine manner and without notice or consultation,” and described the decree as “provocative,” “draconian,” “confusing,” and “unnecessary.”

But there are a number of nagging questions about all this, not least concerning whether or when an actual ban on religious observance was introduced in Ireland. This is not as straightforward as it has appeared. It is at least highly arguable that religious events indoors were not legally restricted after June 2020, even though most churches remained closed. Although there was some shifting and shuffling of regulations as things developed over the winter, it is likely that this situation obtained until April 12, with the introduction of Statutory Instrument 171. At this point the legal position altered more or less to fit the practices and behaviors of the previous ten months, expressly banning religious events.

In the first place there is the strange denial last October from Minister for Health Stephen Donnelly that any penal provision was or would be in existence concerning attendance at public religious gatherings. This assertion was made in the course of a parliamentary debate in Dáil Éireann (the lower House of the Irish parliament) on October 22, 2020. Donnelly said he was able to assure the House that “with regard to penalties, religious services are non-penal.” When challenged further on this he said: “I signed the regulations last night and I assure Deputies that it is a non-penal provision and it will remain thus.”

In fact, a set of regulations published that very day, and signed by Donnelly, prohibited various “events,” and it was widely assumed that this included religious services, with an exception for funerals. The penalties included a fine, imprisonment for up to six months, or both. But whereas other kinds of  “events”—weddings, funerals, etc.—were expressly listed or mentioned in the regulations, religious gatherings were not. The issue remained somewhat vague. In November, the Department of Health issued this clarifying statement: “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.” However, in subsequent passages, the small print sought to snatch back what the large print had extended, by emphasizing that the regulations only allowed religious services to take place online.

This might be seen as either confusing or strategic, or both. It is certainly in harmony with the overall approach of the Irish authorities in their handling of lockdown measures. The strategy of the authorities has been to intimate that the COVID regulations are much wider in scope than they actually are. By a series of sleights-of-hand, it has been insinuated that An Garda Siochána (the police force) has been extended far more comprehensive power than is actually, or could be, the case.

Perhaps mindful that in reality Ireland's Constitution—which guarantees that “freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen”—remains one of the strongest in the world, the tactic appeared to be to give the impression that the regulations went further than they actually did, leaving the public hypothesizing the worst so that it would, in effect, police itself. For as long as the courts could avoid actually examining the laws, this strategy could continue.

For several months now—since early July 2020, if not indeed since March of last year—the authorities have been falsely asserting that various laws are in existence that entitle the police to stop, interrogate, and restrict the movement of (and in some instances, arrest) citizens who are simply going about their business, seeking to use public transport, or, in one instance, saying prayers at a shrine to St. Brigid on her feast day. In effect, this has amounted to a form of policing-by-bluff, with “the guards” affecting to have powers that most likely would not survive a robust test before a responsible and reasonable court (an entity that has thus far proved difficult to locate). There is considerable doubt as to whether much of the soft tyranny that has characterized Irish life over the past year has been supported by actual laws.

The significance of the May 10 lifting of S.I. 171, which was introduced on April 12, is ambiguous and difficult to read. The move may have been forced by escalating public pressure, or it may have been an attempt to forestall legal scrutiny of the authorities’ masquerade-and-bluff approach to lockdown enforcement. One theory is that the state was mending its hand with a view to thwarting a court challenge from businessman Declan Ganley, who has been pursuing legal action against the government’s seeming ban on public worship since November. Some weeks ago, these legal proceedings were hurriedly adjourned to allow the state’s lawyers to consult with their clients, because they suddenly seemed to be uncertain whether the law they were defending existed or did not. It is interesting that S.I. 171 was signed not by Donnelly himself but by an “authorised person,” the hitherto unheard-of functionary “Colm Desmond.”

Three factors appear to be central to the idea that there was a ban on public religious observance before April 12. One was the intermittent activity of gardaí (police officers), who appeared to be targeting religious events, at times malevolently. A secondary factor was that many bishops and priests made no move to open up their churches, or even to discuss the situation publicly. And these two factors solidified the public understanding that all such events continued to be prohibited.

Ireland is now, in effect, in a post-democratic situation, and not least because its judiciary appears intent upon punishing anyone who tries to compel it to take action, as it has sought to do with me and Gemma O’Doherty after we issued a constitutional challenge in April 2020 (still pending an appeal to the Supreme Court) to the totality of lockdown measures. It is as if the judges—at least at the highest levels—are aware that ultimately the Constitution of Ireland must either be upheld by them or be ostentatiously bulldozed in a manner that will need to pass muster not just now but into the unpredictable future. Since either option at present appears to present them with an appalling vista, they just kick for touch and hope it all blows over.  

It is doubtful that, if you could find an honest judge, any of the laws or Statutory Instruments could stand up for five minutes. But the judges, almost en bloc, appear simply to be rubber-stamping the illegality of the government's actions, and no one has yet found a way to unpick this tight knot of collusion.

So far, there have been no prosecutions for organizing or attending a religious event. Some on-the-spot fines have been issued by An Garda Siochána, including a €500 penalty imposed on a County Cavan priest, Fr. P. J. Hughes, for saying Mass at his parish church. Fr. Hughes has declared he will not pay the fine and will go to prison if necessary, but it remains to be seen whether these fines have any legal basis whatsoever. Fr. Hughes got no support from the Catholic hierarchy in bravely standing up to the Garda goons. (Incidentally, the laws/regulations, to the extent that they exist or are being enforced, don't appear to apply to Muslims, who come and go to their mosques without state interference.)

Ganley recently intimated that it might be time for civil disobedience. He tweeted, “In my personal opinion, the Irish Catholic Bishops should order their parishes to reopen.” What he suggests has never been tried, at least not at the scale required to make it unsustainable for the authorities to prosecute or persecute everyone determined to defend their constitutional rights. Indeed there are abundant indications that, if priests or bishops wished to confront the authorities, the authorities would have to back down.

Had S.I. 171 remained in place, the next hearing in the Ganley case may have involved a review of the various circumstances outlined above, including the possibility that no formal ban existed between June 2020 and April 12, 2021, when S.I. 171 was necessitated by state fears of being caught out in a serious subterfuge. On Tuesday of last week, when Ganley's case came up for mention in the High Court, the judge said he could see no point in fixing a hearing date because he regarded the case as moot (pointless) because the disputed restrictions had lapsed. He asked the sides to make submissions on this point, and adjourned for a further month. Ganley appears to have been the victim of a double-cross by the state’s legal team, which had previously intended not to venture down the moot avenue. Essentially, the state has pursued a strategy of tiring both Ganley and his argument, while playing ducks and drakes with the law and the idea of law.

It may emerge, then, that Ganley was on the point of calling the government’s bluff. In an attempt to thwart him in court, the state had been engaging in a double subterfuge, which has now become a triptych of unconstitutionality: first pretending that a law existed when it did not; then introducing a potentially unconstitutional regulation in order to cover itself from legitimate challenge; then slyly seeking to have the whole thing declared moot by simply scrapping the entire mishmash of pseudo-law in this connection.  

The likelihood now is that the High Court will kick out the Ganley challenge on the basis that it has become irrelevant, probably while refusing to get into whether this was built into the state’s strategy from the outset. Should Ganley pursue the matter to the higher courts, this string of state gamesmanship might eventually force the judiciary to blow the whistle on official chicanery, though nobody is advised to hold breath on anticipation of such. 

With a fair wind and a brave heart, Ganley may yet find himself in a position to win a case that was most likely baseless to begin with. If that sounds like a contradiction, it is; but as more of the truth about the lockdowns starts to spill out, it might take a brave judge to resort to technicalities on such a grave matter.

John Waters is an Irish writer and commentator, the author of ten books, and a playwright.

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