The High Court has dismissed Tracey O’Mahony’s challenge to a law that gave the Minister for Health power to make Covid-related regulations, ruling that the case was moot because the provision had expired and no live dispute remained.
In a judgment delivered on 31 January 2025, Ms Justice Nessa Cahill said section 31A of the Health Act 1947 ceased to operate on 31 March 2022. The regulations made under it had also ended. O’Mahony was not facing a prosecution under the measures and was not seeking damages, the court noted.
The case had originally challenged both section 31A and regulations made under it. O’Mahony confirmed that she was no longer pursuing the challenge to the regulations, leaving five declarations sought concerning the constitutionality of the enabling provision. Her case was that it improperly delegated law-making powers to the Minister, including powers concerning primary legislation, criminal offences and constitutional rights.
The defendants sought dismissal on mootness grounds. O’Mahony argued that the challenge should continue because the issues were of exceptional public importance and similar powers might be used during a future pandemic. The judge accepted that the Covid-era powers and restrictions were exceptional and that the constitutional questions were matters of public interest. She said, however, that this alone did not justify hearing a case without a live factual dispute or a material interest for either party.
The judgment also noted that a substantially similar constitutional challenge had already been decided in Ring v Minister for Health, where the High Court upheld section 31A. Justice Cahill said deciding O’Mahony’s case would serve no practical purpose and would risk producing an advisory opinion.
The court rejected the argument that section 31A was capable of repetition yet likely to evade review. It found insufficient evidence that the provision, or a similar regime, would be reintroduced. It also noted that the constitutional challenge had been heard in Ring and that O’Mahony’s case could potentially have been determined while section 31A remained in force had it been pursued more quickly.
The court dismissed the proceedings without deciding the constitutionality of section 31A. It made no final costs order in this judgment: Justice Cahill said she was provisionally minded to award costs to the defendants and set a timetable for written submissions, with an oral hearing listed for 11 March 2025.