A JUDGE has been asked Health Minister Stephen Donnelly to explain why hotel restaurants have been allowed to serve customers indoors while other restaurants have been restricted to outdoor dining only.
r Justice Charles Meenan directed the filing of an affidavit by the minister explaining why “what effectively seem, on the face of it, to be similar services are treated differently”.
He made the direction after the Restaurants Association of Ireland (RAI) sought leave for judicial review proceedings against the minister, challenging regulations which prohibit its members from serving customers indoors.
The High Court action will not speed up the reopening of indoor dining as the court won’t be able to hear the case prior to the proposed resumption of indoor service on July 5.
However, the RAI looks set to proceed with the case anyway as it doesn’t want other “discriminatory” decisions made in the future.
As part of the unwinding of Covid-19 restrictions, hotel restaurants have been able to serve food indoors to residents since June 2, while restaurants, pubs and coffee shops have been able to serve outdoors only since June 7.
Michael McDowell SC, appearing with Robinson Solicitors for the RAI and three businesses, said the statutory instrument had created a situation which was “ultra vires”, outside the powers of the minister.
He said this was because it lacked proportionality, the rationale for it was poor, and it was an unjustified interference with the property and economic rights of non-hotel restaurateurs.
The plaintiffs are seeking a declaration that the regulations, insofar as they allow indoor hotel restaurant dining but do not allow non-hotel indoor dining, are null and void.
Asked by the judge if he was asking for the court to determine the matter before July 5, Mr McDowell said he was not.
The barrister said “the whole case may evaporate at that point” and his clients “hoped sincerely” the Government would remedy the situation by July 5.
However, he said that even if it did, there would still be two issues for the court to determine.
The first of these, he said, was the legality of the current situation. The second related to what may happen in future.
“If the [Covid-19] situation worsened, or if the chief medical officer reported further grounds which caused the Government to hesitate, like the United Kingdom government has just done, then we want it made clear that this particular discrimination against our clients is unlawful,” Mr McDowell said.
Mr Justice Meenan directed that the application for leave be made on notice to the minister and adjourned the matter until July 8. The judge also directed the minister file a replying affidavit by July 2.
During the brief hearing Mr McDowell also said non-hotel restaurants providing outdoor dining were being prohibited from providing indoor toilet facilities for customers.
“If you go to an outdoor restaurant and order a meal, all the patrons are prohibited from entering into the restaurant and using the sanitary facilities. This is a serious and completely irrational prohibition,” he said.
The other plaintiffs in the case are Boxty House Limited, which operates a restaurant in Temple Bar, coffee shop operators Esquires Coffee Houses Ireland Limited, and Sarsfield Taverns Limited, a pub and restaurant business in Limerick.
In legal papers filed as part of the application, the plaintiffs point to comments made by Tánaiste Leo Varadkar on May 28, when he said the decision in relation to allowing indoor hotel dining was “a practical one rather than a scientific one”.
In an affidavit, RAI chief executive Adrian Cummins said the regulations were “irrational, discriminatory, disproportionate, impossible to implement, lacking in certainty and lacking in substantive fairness”.
In a statement of grounds, the plaintiffs argued the irrationality of the regulations was further highlighted by the fact Fáilte Ireland guidelines for reopening of food premises were identical for dining indoors in both hotels and restaurants.