The Supreme Court has upheld the refusal to let Gemma O’Doherty and John Waters bring judicial review proceedings challenging early Covid-19 restrictions, concluding that their case did not meet the threshold for leave.
The applicants had sought to invalidate the Health Act 2020, the Emergency Measures in the Public Interest (COVID-19) Act 2020 and related regulations. The High Court refused leave, and the Court of Appeal dismissed their appeal. The Supreme Court appeal was limited to whether leave should have been granted despite the applicants’ lack of scientific or medical expert evidence on the measures’ proportionality.
In a judgment delivered on 5 July 2022, Chief Justice Donal O’Donnell said expert evidence is not a general prerequisite to challenging the constitutional validity of legislation, including on proportionality grounds. A claim may sometimes be advanced through legal analysis alone. Nor, the Court said, does the burden of justifying legislation automatically shift to the State once an interference with constitutional rights is established; legislation is presumed constitutional, and the challenger bears the burden of showing otherwise.
The Chief Justice said the result depended on the case the applicants had actually brought. Their challenge disputed the public health assessment underpinning the measures, despite detailed legislative recitals and evidence submitted by the State. To make that challenge arguable, they needed some plausible evidence capable of calling the assessment into question. None was provided. The Court therefore concluded that the High Court was right to refuse leave.
The judgment also rejected a proposed narrower route to leave based on restrictions on protest, religious practice and movement. The Chief Justice said the applicants’ references to protest and religious practice were general and did not identify a specific occasion when they had tried, or intended, to exercise those rights and were prevented or deterred by the regulations. The Court would not reshape the case into a different challenge unsupported by evidence.
The appeal concerned leave to seek judicial review, not a full trial of the constitutional challenge. The Supreme Court’s decision left in place the lower courts’ refusal to allow the proceedings to advance.