The Court of Appeal has dismissed Gemma O’Doherty and John Waters’s appeal against the High Court’s refusal to grant them leave to seek judicial review of three Covid-19 laws and regulations.
The measures challenged were the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020, the Emergency Measures in the Public Interest (Covid-19) Act 2020 and regulations made under section 31A of the Health Act 1947. The appellants sought orders declaring them null and void.
In a judgment delivered on 2 March 2021, President of the Court of Appeal Birmingham said the appellants had not established an arguable basis to challenge the measures. Edwards and Costello JJ agreed. The court dismissed the appeal; it did not conduct a full judicial review hearing or determine a challenge to the measures after leave had been granted.
The High Court had found the appellants lacked standing to challenge amendments to the Mental Health Act 2001 and Residential Tenancies Act 2004. The Court of Appeal agreed, noting there was no indication that either appellant was among the people affected by those amendments. For the remaining challenges, the High Court had found that the appellants had standing but had not shown an arguable constitutional case. The Court of Appeal upheld that conclusion.
The judgment said the appellants’ claims relied on assertions about the pandemic and the effects of government measures that were presented as established fact despite being disputed. It said the appellants had not provided evidence capable of supporting their claims that the measures were disproportionate or outside the range of responses available to government and the Oireachtas. The court also rejected the argument that Covid-19 legislation engaged the Constitution’s provision concerning laws enacted during war or armed rebellion.
The court rejected complaints about restricted public attendance at High Court hearings during social distancing, noting that media access had been facilitated and that the appellants had not identified a person who had been refused entry. It also held that the legislation had been passed by both Houses of the Oireachtas, and that the Ceann Comhairle’s arrangements for reduced Dáil attendance were not a matter for the courts to review.
The judgment rejected a late claim of objective bias based on past professional links between the High Court judge and counsel for the State respondents. It also upheld the High Court’s view that the European Convention on Human Rights could not itself be used to invalidate the legislation and that the EU Charter did not apply in this case.
The court said the ordinary rule was that costs follow the event, meaning the unsuccessful appellants would pay the successful respondents’ and notice parties’ costs unless a party sought a departure within seven days. The judgment set out a process for written submissions if such a request was made.