JOHN WATERS AND Gemma O’Doherty’s appeal against a refusal to permit them to challenge the constitutionality of laws introduced in response to the Covid-19 pandemic has been dismissed.

They had appealed the High Court’s refusal to permit the two to bring their challenge and its award of costs of that hearing against them.

In their judicial review proceedings against the State and the Minister for Health, with the Dail, Seanad and Ceann Comhairle as notice parties, the appellants had sought to have various legislative measures declared unconstitutional and flawed.

In its decision today the three-judge Court of Appeal, comprised of the President of the Court of Appeal Justice George Birmingham, Justice John Edwards and Justice Caroline Costello dismissed all grounds of their appeal. 

Justice Birmingham said that the approach taken by the High Court “was the correct one”. He added that while the case was “controversial and tendentious” no serious legal issue that would justify the granting of permission had been raise.

The applicants he said claimed “to know better than the government and the Oireachtas.” and they dismissed internal and international advice concerning the pandemic available to the government.

Their proceedings the judge said failed to raise issues of substance.  They had “chosen rhetoric over substance and fiction and distortion over fact” and failed to meet the threshold of establishing an arguable case, the judge concluded.

The decision was delivered electronically and none of the parties were present in the Four Courts complex when the judgement was handed down. 

The appeal was opposed by the respondents and the notice parties.

Last year O’Doherty and Waters sought to challenge 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.

They claimed the laws, and the manner in which they were enacted, are repugnant to several articles of the Constitution including concerning the rights to travel, bodily integrity and the family, and amounted to an “unprecedented suspension” of constitutional rights.

Last May Justice Charles Meenan refused to grant them leave and said their claims were not arguable.

They had not provided any expert evidence or facts to support their view the laws were disproportionate or unconstitutional.

The manner in which the Houses of the Oireachtas dealt with the laws, introduced by a caretaker government and voted on by an incoming Dail and outgoing Seanad, was not something a court could interfere with, he said.

The laws are constitutionally permissible, he held.  

The proceedings should have been brought via plenary hearing, involving hearing oral evidence, and not judicial review, he held.

In their submissions to the appeal court O’Doherty, and Waters argued the High Court’s decision refusing them permission to bring their challenge against the laws was wrong and that they didn’t get a fair hearing before the lower courts.

Waters argued that the CoA should set aside a High Court judgement that was “deeply tainted.” He said that the challenge was brought against laws that were “made off the hoof.”

Michael Collins SC, with Patrick McCann SC for the Minister and the State said the applicants’ appeal should be dismissed.

While this was an appeal against a refusal to grant leave their issue was against decision made by the government, based on medical and scientific advice, against the threat to public health and lives caused by the international pandemic.

Some of their submissions to their appalling and offensive, counsel said. Counsel said they have made many wild and general assertions, which he said were not supported by any reports or evidence. Francis Kieran Bl for the notice parties said the appeal should be dismissed as their claim was non judiciable, and nothing had been put before the court that would allow them “climb the high legal walls” required for their arguments to succeed.

Counsel adding that some of the applicant’s submissions was “Bermuda Triangle stuff.”

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