Thursday, November 25, 2021

An appeal brought by Gemma O’Doherty and John Waters against the dismissal of their challenge to the constitutionality of laws introduced in response to the Covid-19 pandemic is to be heard by the Supreme Court.

However, the appeal will be on a limited basis only and no date has yet been fixed for the appeal.

In March, the Court of Appeal (CoA) dismissed their appeal against the High Court’s decision not to grant them leave to bring their action on the basis it was “misconceived and entirely without merit”. They were ordered to pay the legal costs.

In their judicial review proceedings against the State and the Minister for Health, with the Dáil, Seanad and Ceann Comhairle as notice parties, the applicants sought to have various legislative measures declared unconstitutional and flawed.

In a written Supreme Court determination, Chief Justice Donal O’Donnell, Ms Justice Marie Baker and Mr Justice Gerard Hogan granted permission to have the appeal heard on a limited basis by the Supreme Court. The application for leave to appeal was contested.

Evidential foundation

The Supreme Court will hear Ms O’Doherty’s and Mr Water’s appeal only on the basis of determining if leave to apply for judicial review should have been granted in circumstances where the applicants had failed to lay any evidential foundation in the form of reports or affidavits from scientific or medical experts on the proportionality of the measures introduced and their impact on constitutional rights.

In particular, the judges will consider if the measures are of “such clear and significant impact” upon the constitutional rights of every citizen that a judge should grant leave for them to be challenged by way of judicial review.

If so, they will ask if the evidential burden shifts to the State parties denying invalidity to demonstrate the measures were necessary and proportionate, even if the applicants have not advanced any scientific, medical or technical evidence or direct impact upon any person.

The Supreme Court accepted at the level of principle that the matters sought to be raised concerning the limitations on rights and the proportionality of the measures are “of general legal importance”.

However, the judges noted that the applicants had failed to secure leave for their application due to their failure to satisfy the High Court and, on appeal, the Court of Appeal, that they had adduced “even the minimum evidence to support their application”.

“Another difficulty, they noted, was that the language and argumentation employed in the application are “often tendentious, polemical and partisan,” the judges added.

Constitutional rights

Notwithstanding the concerns, the Court considers the appeal does raise questions of general public importance regarding the application of the burden of proof in granting leave to challenge the proportionality of the measures insofar as they concern the constitutional rights to liberty, free movement and travel, the inviolability of the dwelling and freedom of association, they said.

Seeking a priority hearing, Ms O’Doherty and Mr Waters say the matters sought to be appealed meet the threshold for general public importance as the legislation impacts upon everyone in Ireland, the judges noted. They argue the measures create a regime “akin to martial law”, are disproportionate adding that there are other steps that are less onerous and less limiting of personal freedoms that could have met the public health concerns.

They also say the introduction of the legislation at a time when there was a small number of Covid-19 cases in the State was disproportionate, alleging they unlawfully and unjustifiably restricted rights granted by the Constitution and European Convention on Human Rights (ECHR), the judges noted.

Last year, Ms O’Doherty and Mr Waters sought to challenge legislation, including the 2020 Health Preservation and Protection and Other Emergency Measures in the Public Interest Act; the 2020 Emergency Measures in the Public Interest Act Covid-19 Act and the 1947 Health Act (Affected Areas) Order.

In May 2020, Mr Justice Charles Meenan refused to grant them leave, saying their claims were not arguable. He said they had not provided any expert evidence or facts to support their view the laws were disproportionate or unconstitutional.

Earlier this year, the three-judge court, comprising of CoA president Mr Justice George Birmingham, Ms Justice John Edwards and Ms Justice Caroline Costello, dismissed all grounds of their appeal.

Mr Justice Birmingham said the court was “quite satisfied” that the approach taken by the High Court in relation to their case was correct. The “controversial and tendentious” case presented no serious legal issue that would justify the granting of permission, the CoA found.

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