LAST UPDATE | 5 May 2020

JOHN WATERS AND Gemma O’Doherty have told the High Court that laws introduced by the State due to the Covid-19 pandemic are “unprecedented” and amount to an “effective suspension” of every citizen’s constitutional rights.

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

In her submission to the court, O’Doherty said the restrictions are comparable to living in “Nazi Germany”. 

The High Court has directed that their application for permission to bring their challenge be heard in the presence of the respondents.

Both the State and lawyers representing the Dáil, Seanad and the Ceann Comhairle, which are notice parties to the proceedings, claim the court should not allow them bring the challenge and that the case should be dismissed.

The preliminary application to determine if permission should be granted is before Mr Justice Charles Meenan.

In their submissions to the court, Waters and O’Doherty said the laws that have been introduced, and the manner in which they have been enacted, are repugnant to several articles of the constitution including rights to travel, bodily integrity and the family.

Waters said the issues that he and O’Doherty are raising are hugely important for all citizens. He said the laws brought in response to the Covid-19 pandemic amount to a suspension of constitutional rights.

The laws, he said, keep people in their homes, and have resulted in the closure of parks and beeches.

Waters said he agreed with comments by former British Supreme Court judge Lord Sumption who described the restrictions in place in the UK, which Waters said are similar to the ones in Ireland, as being worse that than what was imposed in the UK during World War II.

Referring to the economic impact of the restrictions, he said he feared that the country could find itself back in the place it was in 1929 when the Wall Street Crash sent the would into an economic depression.

Waters also told the court that he and O’Doherty do not accept the accuracy of the number of deaths in the State attributable to Covid-19, due to the manner in which such deaths are being officially recorded.

‘Nazi Germany’

O’Doherty, who told the court she is an award-winning journalist who has done a lot of work covering health issues, said the legislation had given powers allowing the gardaí to harass people when they go out and about and have kept citizens under mass house arrest.

During her submissions to the court, she compared the restrictions to living “in Nazi Germany” where people were required to carry papers with them at all times.

This, she said, was detrimental to people’s health including that by being kept indoors they were not getting enough Vitamin D.

She also told the court that the State basis for introducing the laws are “scientifically fraudulent” and evidence to that effect would be submitted at the full hearing of their action.

Waters also told the court that the case more than satisfied the legal threshold required by the court to allow the challenge proceed to a full hearing.

Both he and O’Doherty also have the legal standing to bring the case as they have been personally affected by the laws challenged, he submitted.

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, and 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.

The State, represented by Patrick McCann SC, appearing with Gerard Meehan BL, opposes the application for leave, saying the claims are not arguable.

The Dáil, the Seanad and the Ceann Comhairle, which have been added as notice parties to the action because part of the challenge concerns how the laws were enacted, represented by Francis Kieran Bl, are also opposed to leave being granted.

Supporters 

As was the case when the matter was before the court last week, there was tight security and a large garda presence around the Four Courts complex.

A crowd of supporters gathered outside the Four Courts to cheer and applaud O’Doherty and Waters as they arrived and left. Some people held placards protesting the government restrictions, while others waved tricolours.

Only a limited number of people were allowed into the court due to social distancing conditions imposed by the Courts Service.

Last week, a similarly-sized crowd gathered to support the judicial review action. 

Chancery Place was again closed to members of the public and there was a large garda presence in the area.

Supporters of O’Doherty and Waters today once again remained outside the Four Courts building and were not allowed past barriers erected by gardaí.

Gardaí did not seek to disperse the crowd, which waited outside for the duration of the hearing.

Both O’Doherty and Waters addressed the crowd before and after the hearing.

The hearing will continue tomorrow.

With reporting from Dominic McGrath. Comments are closed due to ongoing legal proceedings.