Supreme Court Justice Gerard Hogan would have allowed Gemma O’Doherty and John Waters to proceed with parts of their challenge to Covid-19 restrictions, but his view was in a dissenting judgment delivered as part of the Court’s 2022 decision.
The applicants had sought leave to bring judicial review proceedings against measures made under the Health Act 2020 and Emergency Measures Act 2020. The High Court and Court of Appeal refused leave. The Supreme Court permitted an appeal on three grounds, but Hogan J’s account of which claims should proceed was not the Court’s overall ruling.
Hogan J said the applicants had not provided medical, scientific or epidemiological evidence to support their contention that there was no real public health threat. He agreed with the Chief Justice that leave should not be granted on that basis. His dissent focused on whether restrictions adopted in response to the emergency could nevertheless be unconstitutional.
On peaceful protest, Hogan J said the wording of regulations in force from April to June 2020 appeared to make participation in a protest a criminal offence. He considered it unclear whether a later instrument, SI No. 206 of 2020, allowed protests. He said the applicants had raised important constitutional issues and would have granted leave to seek declarations that the provisions were beyond the Minister’s powers and unconstitutional insofar as they imposed a complete ban on public protest.
On movement, Hogan J considered short-term restrictions defensible in the circumstances, given exceptions for essential activities. But he said the applicants had arguable grounds to challenge restrictions on outdoor movement from 1 July 2020 onwards, when the restrictions had continued beyond the short term and the legal framework had been extended and later made permanent.
He also would have allowed a challenge to restrictions on home visits from 1 July 2020. Hogan J said short-term limits could be justified by the State’s public health interests, including the risk of infection indoors, but that longer-term restrictions raised different constitutional concerns relating to the home and association.
Hogan J concluded that he would allow the appeal only to the extent set out in his judgment. His proposed leave would have allowed the claims to proceed for judicial review; it would not have decided that the restrictions were unconstitutional.