LAST UPDATE | 6 May 2020

JOHN WATERS AND Gemma O’Doherty’s High Court challenge against laws introduced by the State due to the Covid-19 pandemic is doomed to failure, lawyers for the State have argued.

The journalists’ challenge was also described by lawyers representing the Houses of the Oireachtais as “a full frontal attack” on articles of the Constitution concerning the separation of powers.

In judicial review proceedings against the State and the Minister for Health they seek to have various pieces of recently enacted legislation, which they say are unconstitutional and flawed, quashed by a judge of the High Court.

They also want the court to make a declaration that the legislation they have challenged is unconstitutional.

The State, and lawyers acting for the Dáil, Seanad and the Ceann Comhairle who are notice parties to the proceedings, oppose the action.

That preliminary application came before Mr Justice Charles Meenan, who following the conclusion of submissions from the parties on  this afternoon, reserved his decision.

The judge, who did not say when the court would be able to deliver its decision, said he would give the matter his “complete priority”.

He said that in line with what has become the normal practice during the pandemic the judgment would be delivered electronically and would be emailed to the parties.

On second day of the hearing Patrick McCann SC, appearing with Gerard Meehan Bl, for the State told the court the application was “doomed” on several grounds.

He said the action was procedurally flawed. It should have been brought by way of plenary hearing, which would involve the hearing of oral evidence before a court and not by way of judicial review, counsel said.

Judicial review he said was something used to ensure lower courts and public administrative bodies have carried out their lawful functions and not a way to challenge a decision of the legislature or the Oireachtas, counsel added.

There was a failure to put expert evidence supporting their challenge before the court, counsel argued.

Counsel added the applications lacked the legal standing to bring the case to a full hearing, as they had not set out how the regulations challenged personally affects them.

Francis Kieran Bl for the notice parties described the challenge as “a full frontal attack” on articles of the constitution associated with the separation of powers.

Counsel said that the courts should not interfere with decisions made by the houses in relation to the laws brought about by Covid-19, and that leave should not be granted as the matters raised cannot be decided on by a court of law.

Counsel said that the caretaker Government was entitled to bring forward the laws, that they were unanimously passed by agreement of the parties and technical groups of the incoming Dail.

The Dáil was perfectly entitled to have a reduced number of TD attend and vote on the laws.

The numbers of TD’s present, which due to Covid-19 was reduced by agreement to over 40, in the Dáil for the vote on the new laws exceeded the required quorum of 20 elected members, counsel said.

There was no issue in relation to the outgoing senate voting on the laws.

Counsel said while the Dáil is dissolved on the calling of an election, the Seanad remains in place until the day before a new one is elected and is entitled to vote on any legislation that comes before it.

They also rejected the State’s claim that they lacked legal standing to bring the action, as like every other citizen they said they are effected by the Covid-19 regulations.

Waters argued that the laws were so draconian that they amounted to an exceptional circumstance which would allow the court interfere with a decision of the legislature.

He added that after considering all the options he and O’Doherty believed the best way to bring such an important action was by way of judicial review.

During the court of her submissions O’Doherty, who said that the action was being brought “on behalf of the people of Ireland,” described the situation as like living under “martial law” and described the actions of the government as something “like a coup”.

During the hearing the judge asked her to cease making what he described as speeches that were not assisting the court in the decision it had to make.

O’Doherty denied making speeches and said she had a right to be heard on what was a very important issue.

In their action, O’Doherty and Waters have challenged legislation including the 2020 Health Preservation and Protection and Other Emergency Measures in the Public Interest Act, the 2020 Emergency Measures in the Public Interest Act Covid-19 Act, The 1947 Health Act (Affected Areas) Order.

Their proceedings are also aimed at striking down temporary restriction regulations brought due to Covid-19 under the 1947 Health Act.

They claim the laws, and the manner in which they were enacted, are repugnant to several articles of the constitution including rights to travel, bodily integrity and the family. The laws they claim amount to a suspension of constitutional rights.

A small crowd of supporters gathered to greet O’Doherty and Waters this morning, with one person waving a tricolour. 

Chancery Place, like yesterday, remained closed to the public and supporters were not allowed into the Four Courts. 

There was also a significant garda presence in the area. 

Comments are closed due to ongoing legal proceedings.