The High Court dismissed Declan J. Ganley’s challenge to Covid-19 rules that prevented him from attending Mass, finding the application moot because the rules had expired. The court did not decide whether the restrictions were lawful or constitutional.
The case concerned “level 5” regulations made under the Health Act 1947. They required people to stay at their residence unless they had a reasonable excuse to leave. Permitted reasons included certain religious work by ministers and priests, but not attending Mass. Breaching a specified provision was an offence.
Ganley, described in the judgment as a practising Roman Catholic, argued that the restrictions exceeded the powers granted by the Act and conflicted with constitutional provisions. He sought judicial review in November 2020. The regulations expired on 1 December 2020, before the challenge was heard.
The parties agreed to a “telescoped” hearing and the Minister for Health and notice parties initially agreed not to raise mootness. The judge nevertheless directed them to address it, since the expiry of the rules had become central to whether the case could proceed.
Ganley argued that the case fell within exceptions to the mootness rule, including because similar restrictions might be imposed again during the continuing pandemic. The respondents submitted that any future restrictions would have to be assessed in light of the circumstances at the time, and that a full hearing would take at least eight days.
Mr Justice Meenan said the central complaint was that the restrictions on attending Mass were disproportionate. Whether restrictions were proportionate would depend on the disease and the danger it posed at the relevant time. A ruling on the expired measures would therefore be of little value in assessing different restrictions introduced against a different threat, he said.
The judge also rejected Ganley’s reliance on Article 13 of the European Convention on Human Rights, observing that the regulations had been rescinded and he no longer required a remedy. He said he found it difficult to accept the submission that justifying the regulations would require at least eight days of hearings.
The application was dismissed as moot. The court made no determination on the substantive legality of the regulations. The Minister and notice parties had succeeded on the mootness issue, but the judge invited written submissions on costs by 14 January 2022 and listed the matter for 21 January 2022 to deal with costs.