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First, if you are a new reader, a declaration of interest and potential bias: Declan Ganley, the plaintiff in this case, has been my close friend for well over a decade. On a personal level, I am openly biased in his favour. That said, we have not spoken since the ruling discussed in this piece was handed down, and what follows is an attempt at objective analysis.
The first thing to say here is that Declan Ganley himself was not really the issue or the question in the High Court challenge he took against the State’s ban on attendance at Mass, and other religious services, in 2020.
The court case was not about him. The court was asked to give no view on him, either way.
Instead, it was asked to answer a simple constitutional and legal question: Did the Government actually have the right to do what it did, in terms of banning attendance at religious services, even in a pandemic, under the constitution?
It doesn’t really matter who asks that question. It is either an important question, or it is not.
Yesterday, more than a year after the case asking the question was taken, the court gave its answer. And that answer was basically “well, the regulations are gone now, so the answer to the question does not really matter”.
Or, in legal speak, that the case is “moot”. The Irish Independent has a good and detailed run down of the specific legal arguments the Judge used to arrive at that conclusion, but it’s worth summarising them here.
In essence, the Judge, Charles Meenan, argues in his ruling that the particular justification for banning attendance at mass offered by the Government would be of vital importance in deciding whether the measures were constitutional. And that in effect, any ruling he might make would be limited only to the question of whether the ban on attending services was justified in the context of the arguments the Government made last year. He argues, in essence, that if he devoted the court’s time to finding that last year’s ban was, in fact, unconstitutional, then his ruling might still open the door to a future ban on slightly different grounds. In other words, the whole thing would be a waste of time.
This has the feel of a three-card trick.
First, it is worth noting, this case was taken at a time when the restrictions in question were, in fact, in place.
Second, one reason, indeed, the major reason, it was not heard for so long was that lawyers on behalf of the state kept seeking (some might say “stalling for”) additional time to respond to the arguments made by Ganley’s legal team.
Third, that extra time was agreed to by Ganley’s team in return for an explicit concession from the State that it would not argue that the case was moot. Judge Meenan was aware of this.
So, it is convenient, then, for the State, that the Judge himself, having been aware of one side’s concerns about mootness and allowed delay anyway, should then be the one to declare the whole thing moot.
It is also a horrible legal precedent. Perhaps a worse precedent than that which would have been set if the Judge had simply found the regulations perfectly constitutional.
After all, the precedent is this: A person challenging something the Government is doing as unconstitutional has to, effectively, hope that the Government keeps doing that potentially unconstitutional thing long enough for the courts to decide it is worth hearing the case. If the Government wishes to do potentially unconstitutional things, it now has reason to believe that it can do them for a lengthy period, delay any cases on them for as long as possible, and then stop doing them before the case is actually heard. Hey presto, the issue is moot, and there are no consequences.
It is worth noting here that the cards are already stacked against the citizen when it comes to challenging laws as unconstitutional. The Government enjoys a legal “presumption of constitutionality” in the courts, in much the same way a criminal defendant enjoys the presumption of innocence. That is to say, any act the Government takes is presumed to be constitutional until the courts find, as a matter of fact, that it is not. A citizen taking a case (which is prohibitively expensive, by the way) has to prove that the Government is acting unconstitutionally.
Setting the precedent that the Government can simply stop doing a thing, and in that way avoid a case on it altogether, is deeply unhealthy.
We are now in the strange position where it is entirely possible that the Government acted unconstitutionally for eight or nine months, and got clean away with it.
The function of courts, in a constitutional republic, is that they are the one body with the power to say what the constitution actually means, and to compel the Government to abide by the constitution. Voters cannot do that. The opposition can not do it. The media can not do it. The only people who can, legally, are the Judges and the courts. In this case, they have walked away from that job. Why?
Mr. Ganley, and all those who supported him in taking the case, have every right to feel aggrieved. In this time of hyper-partisanship, there are those who will cheer the ruling, but they, too, are cheering against their own interests. If they wanted to see the regulations upheld, then they should have been rooting for a decision that the regulations were constitutional. This outcome is not a defeat for Mr. Ganley: It is a defeat for everybody who wanted to see the question he asked answered, either way.
It is, of course, true, as Judge Meenan says, that a ruling on the particular circumstances of last year might not apply in future. But that statement is true in a very weaselly way: Is it likely that a ban on mass attendance is likely to be introduced again, soon, for reasons other than the pandemic and public safety? Not really, is the obvious answer. We are now seeing many other restrictions – mandatory quarantine, for example – being reintroduced after they were abolished, on exactly the same grounds. It is not particularly credible to say that the religious restrictions might be reintroduced on entirely different grounds.
What is notable, though, is that even as the Government closes pubs, and so on, the ban on mass and other religious services is one restriction that they have not reintroduced. Perhaps Mr. Ganley did, in fact, win, as much as it might kill some sections of establishment Ireland to admit that. Judge Meenan seems to have been unwilling to do his job, in this instance. But the case Mr. Ganley took may well have done the job in spite of him.
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