A bid by the Restaurants Association of Ireland and three restaurants, including Boxty House in Dublin’s Temple Bar, to challenge “irrational” regulations permitting indoor dining within hotels while preventing indoor dining in non-hotel commercial restaurants has been adjourned by the High Court to next month.
Mr Justice Charles Meenan today having noted the government intends the regulations will be lifted on July 5th if the Covid-19 situation permits, directed the application for leave to bring the judicial review challenge over the regulations should be made on notice to the Minster for Health.
Returning the matter to July 8th, he said all will be aware by then of developments on July 5th, which would dictate how the judicial review matter would proceed.
He also directed the Minister to serve an affidavit by July 2nd outlining the nature of his side’s opposition to the proceedings.
The applicants are the RAI, a representative body for the restaurants of Ireland; Boxty House Ltd, a restaurant operator of Temple Bar, Dublin 2; Esquires Coffee Houses Ltd, which operates cafes and has registered offices at Ballybrit, Galway; and Sarsfield Taverns Ltd, which operates a pub/restaurant and has registered offices at Mallow Street, Limerick.
The challenge arises from certain regulations made via Statutory Instruments under the Health Act, as amended, which the government intends, under its plan for opening up the country as the Covid-19 situation permits, to lift on July 5th.
In an affidavit, RAI chief executive Adrian Cummins said its members have been “greatly disadvantaged and are incurring major economic loss by reason of the irrational regulations”. He believed, and was advised, the Minister had acted outside his powers in making regulations which, as they apply to restaurant and dining services since June 2nd, are “irrational, discriminatory, disproportionate, impossible to implement, lacing in certainty and lacking in substantive fairness”,
Michael McDowell SC, instructed by solicitor Georgina Robinson, for the applicants, told the judge he was not pressing for the case to be heard and decided by July 5th. The judge said it would not be possible to have the case decided by July 5th.
'No legal basis'
Mr McDowell said his side maintains, whether the regulations are lifted or not, there is no legal basis for them. Even if lifted on July 5th, there are issues about the legality of what is going on now and what is to happen if the situation worsens in the future and such discriminatory regulations are reintroduced, he said. The applicants wanted an opportunity to make their case the regulations “are unlawful and should not be repeated”.
The applicants, he stressed, fully accept the need for restrictions to stop the spread of Covid-19 but argue the restrictions on them, compared with those on hotels and B&Bs, are irrational and disproportionate, amount to unjustified interference with their economic interests and in excess of the Minister’s powers.
Regulations preventing members of the public entering restaurants except to order and collect food, are irrational, disproportionate and unjustifiable, he said. The same went for regulations which prevent customers, when dining outdoors in line with the regulations, using sanitary facilities and toilets of the relevant restaurant.
The regulations effectively confer on hotels the right to operate sanitary faculties for their patrons but prevent restaurants allow their customers to access their sanitary facilities, he said. This seriously inhibits restaurants carrying on their trade.
The regulations permit certain premises to be open to the public for purposes including non-essential retail, such as gyms and cinemas, and the use of outdoor sections of bars and other premises for consumption of alcohol without time constraints, while prohibiting all indoor dining in non-hotel commercial restaurants, he said.
Permitting indoor dining for 25 attendees at a wedding reception while not permitting an indoor dining post-funeral event for a similar number is irrational and unjustifiable, he said.
Other concerns include the regulations fail to have any regard to the nature, size or ventilation of indoor restaurant facilities, whether in hotels or elsewhere, he outlined. It is irrational that smaller and less ventilated hotel dining rooms can operate while more spacious and better ventilated restaurants cannot, it is claimed.
Another complaint is the regulations permit hotel guests to freely mingle among themselves while using indoor restaurant facilities when families and households cannot dine together in non-hotel restaurants.