The High Court refused Gemma O’Doherty and John Waters leave to bring judicial review proceedings challenging Ireland’s Covid-19 legislation and the process by which it was enacted. The court said the applicants had not established an arguable case and dismissed their application. It invited written submissions on consequential orders, including costs; the judgment did not determine costs.
The applicants sought to challenge legislation and regulations restricting movement and gatherings, allowing detention and isolation in specified circumstances, and making other emergency measures. They argued, among other things, that the restrictions were unconstitutional and disproportionate, and that the Oireachtas had not validly enacted the legislation.
Justice Meenan held that the applicants had standing to challenge provisions of the Health Act concerning restrictions and detention, and the regulations made under them. But an arguable case that rights restrictions were disproportionate required affidavit evidence that could support that claim. The applicants provided no such evidence, the judge said. Their account of Covid-19’s effects ended on 16 March 2020 and was not updated in their later affidavit. The court contrasted that with figures stated for 5 and 6 May: 22,248 confirmed cases and 1,375 deaths. The applicants’ challenges to amendments concerning mental health tribunals and residential tenancies were rejected for lack of standing: they had not shown they belonged to the affected categories or were personally affected.
The judge also rejected the applicants’ claims about the legislative process. Complaints about the Ceann Comhairle’s actions and the Dáil and Seanad’s internal procedures were non-justiciable, he held, because of the separation of powers. The court found no case that either House was improperly constituted. It also ruled that the Government continued in office under the Constitution until successors were appointed.
The proceedings had been brought by judicial review, which the judge said was not the proper procedure for a standalone challenge to legislation’s constitutionality. He said that if an arguable case had been made, the court could have directed that the matter continue as if begun by plenary summons. As no arguable case was established where the applicants had standing, leave was refused.
The judgment also held that limits on physical attendance due to social distancing did not mean the hearings were not held in public. Media attendance was facilitated, and the applicants received hearing transcripts without charge.