Gemma O’Doherty and John Waters' appeal against the dismissal of their challenge of the constitutionality of laws introduced in response to the Covid-19 pandemic has opened before the Supreme Court.
Their appeal is against a decision by the High Court, later upheld by the Court of Appeal (CoA), not to grant them permission to bring their action against the measures on the basis it was “misconceived and entirely without merit”. The two were also ordered to pay the legal costs of their failed action.
However, the Supreme Court agreed to hear certain aspects of their appeal which it is accepted raise questions of public importance.
The hearing opened on Tuesday before a seven judge Supreme Court comprised of the Chief Justice Mr Justice Donal O'Donnell, the President of the High Court Mary Irvine, Mr Justice John MacMenamin, Ms Justice Iseult O'Malley, Ms Justice Marie Baker, Mr Justice Gerard Hogan and Mr Justice Brian Murray.
The Supreme Court agreed to hear the limited appeal on issues concerning the limitations on rights and the proportionality of the measures which are “of general legal importance”.
The limited appeal will consider 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.
Judicial review
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 seek to have various legislative measures declared unconstitutional and flawed.
The appeal is opposed.
Opening the appeal, Mr Waters said the High Court was wrong not to grant him and Ms O'Doherty leave on the first day they came to court two years ago.
He said there was, at that stage, sufficient evidence to allow the court to grant leave.
In his submissions, he said there was no due diligence carried out by the State in relation to the Draconian measures which were introduced. He added there was also a lack of debate among Irish politicians and a failure by the Irish mainstream media to properly assess and scrutinise the measures introduced.
'New world order'
In her submissions, Ms O'Doherty told the court the measures, over a virus which she said was no different to the common cold, were part of efforts to establish a "new world order", where citizens will live under a regime similar to "Communist China".
Ms O’Doherty and Mr Waters claim the measures create a regime “akin to martial law”, are disproportionate and that there are other steps that are less onerous and less limiting of personal freedoms which could have met 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 and these unlawfully and unjustifiably restricted constitutional rights and those contained in the European Convention on Human Rights.
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, and last year, the CoA 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.
The hearing continues on Tuesday afternoon when the court will consider submissions from the State respondents.
