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Why the High Court refused Gemma O’Doherty and John Waters application for judicial review of Covid-19 measures introduced by the State

The High Court, in May 2020, refused the application of Gemma O’Doherty and John Waters to challenge the constitutionality of measures taken by Ireland to contain the spread of the coronavirus in Ireland. Why did they fail at the first hurdle? What did they need to show? Was there bias?

Let’s take a look and see what we can learn.

Judicial review proceedings

The first step in their application was to obtain leave from the High Court to bring judicial review proceedings. The reliefs that they were seeking were eventually clarified  and included an order of certiorari and a declaration that the legislation and regulations which were introduced by Ireland were null and void by reason of repugnancy of various provisions of Bunreacht na hÉireann, the Constitution of Ireland.

These were the laws brought in by the State to try to prevent the spread of Covid-19 be preventing people from moving around freely, prohibiting certain events, and other extraordinary measures.

O’Doherty and Waters wanted various provisions of legislation, such as the Emergency Measures in the Public Interest (Covid-19) Act, 2020 and related regulations introduced by the Oireachtais declared unconstitutional. They wanted the High Court to make such an order and they proceeded by way of judicial review proceedings.

What principles are to apply to such an application? The applicant must satisfy the court in a prima facie manner:

  1. That he has sufficient interest in the matter
  2. That the facts sworn in his affidavit would be sufficient to support a stateable ground for the relief sought
  3. That the facts show an arguable case can be made for an entitlement to the relief sought.

The High Court referred to the Supreme Court case of Esme v Minister for Justice and Law Reform [2015] IESC 26 in which Justice Charleton stated:

“Any issue in law can be argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not empty. There would be no filtering process were mere arguability to be the test without, at the same time, taking into account that trivial or unstatable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated. It is still required to be shown that a prima facie legal argument has been established. … In terms of law, the test is no different: it is a point of law which if not balanced or outweighed by other principles will suffice to establish the contention. This is the filter, which the leave application is designed to be, in order to ensure that there is sufficient reason to disrupt administrative decisions and to litigate them.”

Mr Justice Meenan also cited Agrama v Minister for Justice and Equality [2016] IECA 72 where Mr Justice Birmingham stated that a point cannot be arguable if it is contrary to existing case law or if it is “based on a fundamental misconception”.

Therefore the applicants would have to depose to such facts in their grounding affidavits that they could make an arguable case in law that has a prospect of success. Thus the threshold for the application for leave to bring a judicial review is a low one, but a threshold nevertheless.

Secondly the applicants must satisfy the court that they have “a sufficient interest in the matter to which the application relates”. 

This means, essentially, that the applicant must show he is personally affected by the provision he seeks to challenge-that is, he has been deprived of a particular constitutional right.

The Supreme Court, in Mohan v Ireland [2019] IESC held

“the step of permitting a challenge to the constitutional validity of a piece of legislation should not, therefore, be taken lightly, simply because someone wishes, however genuinely, to have the questions determined, but rather should only be taken when a person can show they they are adversely affected in reality. Courts do not exist to operate as a committee of wise citizens providing a generalised review of the validity of legislation as it is enacted, nor should courts become a forum for those who have simply lost the political argument  in the legislature to seek a replay of the argument in the courses, repackaged in constitutional terms.”

The application

The applicants grounded their application in a 34 page affidavit which set out a narrative to 16th March 2020 but was sworn on 5th May 2020. No new facts were added from 16th March to 5th May.

In their affidavit the applicants questioned the accuracy of the number of persons affected by the coronavirus. 

They also referred to “fraudulent science” and referred to a statement of a former UK Supreme Cuort judge about the arrival of a “police state” and a parallel made with Nazi Germany. That judge was not commenting on the legislation that was being challenged by Waters and O’Doherty, by the way.

The applicants identified a number of constitutional provisions which they claimed were being breached-for example, “no citizen shall be deprived of his personal liberty save in accordance with law” and “the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”.

Consideration of the issues

Justice Meenan determined that as the legislation provided for the detention of people in certain circumstances, the closure of premises and prohibition of certain events, to prevent the spread of the virus, every person residing in the State was affected, and this clearly included the applicants. Thus, they had the standing to bring the application.

The Judge then had to address the question of whether the applicants had established an arguable case.

He determined that no case had been made out by Waters and O’Doherty that the constitutional rights were breached by the legislation and regulations-personal rights of the citizen, the inviolability of every dwelling, the right to assemble peaceably and the practice of religion are not absolute rights and may be restricted. This is clear from the wording of the various articles in the constitution.

O’Doherty and Waters argued that the restrictions and limitations were “disproportionate” but to make an arguable case they needed to put on affidavit some facts which, if proven, could support such a view. Justice Meenan held there was a complete failure by the applicants to do so.

The narrative in the applicants’ affidavit ended on 16th March 2020 when there had been 268 cases of covid 19 and 2 deaths reported.

By the time of the grounding affidavit, sworn on 5th May 2020, there had been 22,248 cases and 1375 deaths from covid 19 but the applicants had made no reference to this in their affidavit which sought to ground their application for a judicial review.

The applicants questioned the accuracy of the figures of persons infected with covid 19 and deaths reported, and claimed the science involved was “fraudulent”. However, they offered no supported expert opinion either in their statement of grounds or grounding affidavit.

The judge noted that the applicants have no medical or scientifice qualifications or expertise and relied on unsubstantiated views, speeches, empty rhetoric and sought to draw an absurd and offensive parallel with Nazi Germany.

Justice Meenan found that the European Convention on Human Rights is not directly effective and the measures taken by the State as to Covid 19 cannot be invalidated on the basis that they are repugnant to the constitution. He also confirmed that the Charter of Fundamental rights and/or other EU law does not apply to domestic law.

The court determined that whilst the applicants had standing to bring the case they had not made any arguable case in support of their claim that the legislation was unconstitutional.

Furthermore the arguments that the passage of the legislation through the Dail and the legal standing of the Government was held to be non justiciable-that is, not a matter for the courts. 

Justice Meenan held that not only did they fail to establish that they had an arguable case he went so far as to say that the case which they wished to make was unstateable.

Summary of decision

  1. the applicants had standing to bring the case to challenge the legislation and regulations
  2. constitutional rights are not absolute and the argument that the measures were disproportionate meant that the applicants must depose such facts on affidavit which would show the restrictions were disproportionate; no such facts were deposed
  3. the applicants, wiht no medical or scientific qualifications, maintained the covid 19 figures were inaccurate and the science fraudulent but gave no factual basis or supportive expert opinion to support this; instead they engaged in unsubstantiated opinions, speeches, rhetoric and a bogus historical parallel with Nazi Germany
  4. the applicants are not entitled to rely on the European Convention on Human Rights or the Charter of Fundamental Rights or EU law
  5. the case they made against the Oireachtais was unstateable
  6. leave to bring judicial review proceedings was refused

Read the full decision  in this blog post which explains why costs were awarded against O’Doherty and Waters.