Supreme Court to hear appeal on constitutionality of Kovid-19 restrictions

The Supreme Court has agreed to hear an appeal brought by Gemma O’Doherty and John Waters against the dismissal of their challenge to the constitutionality of laws introduced in response to the COVID-19 pandemic.



In March the Court of Appeal dismissed his appeal against the High Court’s decision that he was not discharged to conduct his action on the grounds of “wrong and wholly without merit”. He was ordered to pay the legal costs.

In their judicial review proceedings against the Minister of State and Health, with Dale, Seanad and Sean Comair as notice parties, the applicants sought to declare various legislative measures unconstitutional and flawed.



In a written determination, Chief Justice Donal O’Donnell, Ms. Justice Mary Baker and Mr. Justice Gerard Hogan allowed an appeal by the Supreme Court to be heard on a limited basis. The application for leave to appeal was opposed.

The Supreme Court will hear Ms. O’Doherty’s and Mr. Water’s appeals only on the basis of determining whether an application for judicial review should be allowed in circumstances where the applicant fails to lay any evidence base in the form of a report or affidavit. have failed. Scientific or medical expert on the proportionality of the measures introduced and their impact on constitutional rights.



Specifically, judges will consider whether the measures are of “so clear and significant effect” on the constitutional rights of every citizen that a judge should discharge them to challenge them through judicial review. If so, they would ask whether the burden of evidence on the State parties denying invalidity was necessary and proportionate to demonstrate the measures, even if the applicants did not provide any scientific, medical or technical evidence or direct effect on any individual. Have given

The Supreme Court accepted at the level of principle that the matters to be taken up with respect to the limitations of rights and the proportionality of measures are “of general legal importance”.



However, the judges noted that the applicants had failed to secure leave for their application due to failure to satisfy the High Court and that the Court of Appeal appealed that they had given “even the minimum evidence to support their application”. was added. Another difficulty, he noted, was that the language and reasoning employed in the application are “often impolite, polemical and biased”.

Despite the concerns, the Court considers that the appeal raises questions of importance to the general public as regards the application of the burden of proof in granting leave to challenge the proportionality of measures relating to constitutional rights to freedom, free movement and travel. are in. He said violence of housing and freedom of association.

While seeking a priority hearing, the judges said, Ms O’Doherty and Mr Waters say that the cases to be appealed meet the threshold of general public importance as the law affects everyone in Ireland, the judges said.

They argue that the measures create a regime “similar to martial law”, are disproportionate and that there are other steps that are less difficult and less limit individual liberties that could have met public health concerns.

They also say that the introduction of the law at a time when the state had a small number of Covid-19 cases was disproportionate and that these were illegal and unreasonably restricted constitutional and ECHR rights, the judges noted.

Last year, Ms. O’Doherty and Mr. Waters sought to challenge legislation including the 2020 Health Protection and Protection in Public Interest Act and other emergency measures; Emergency Measures of 2020 in Public Interest Act COVID-19 Act and 1947 Health Act (Affected Areas) Order.

In May 2020, Mr Justice Charles Meenan refused to discharge him, saying his claims were not debatable. He said he had not provided any expert evidence or facts to support his view that the laws were inconsistent or unconstitutional.

Earlier this year, a three-judge Court of Appeals, which included the Chair of the Court of Appeals, Justice George Birmingham, Justice John Edwards and Justice Carolyn Costello, dismissed all grounds for his appeal.

Mr Justice Birmingham said the court was “quite satisfied” that the view taken by the High Court with regard to his case was correct. The “controversial and trending” case did not present any serious legal issue that would justify granting permission, the Court of Appeals found.

No date has been fixed for appeal.

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