THE SUPREME COURT has reserved its decision in an appeal brought by Gemma O’Doherty and John Waters against the dismissal of their challenge of the constitutionality of laws introduced in response to the Covid-19 pandemic.

Their appeal is against a decision by the High Court, later upheld by the Court of Appeal (COA), not to grant them permission to bring their action against the measures on the basis it was “misconceived and entirely without merit”.

Following the conclusion of submissions from the two applicants and the state today, Chief Justice Donal O’Donnell said the court was reserving its decision and would give judgement at a later date.

The hearing was before a seven-judge Supreme Court comprised of the Chief Justice, the High Court President Justice Mary Irvine, Justice John MacMenamin, Justice Iseult O’Malley, Justice Marie Baker, Justice Gerard Hogan and Justice Brian Murray.

The Supreme Court agreed to hear the limited appeal on issues concerning the limitations on rights and the proportionality of the measures challenged.

The court will now decide if leave to apply for judicial review should have been granted in circumstances where the applicants had failed to lay any evidential foundation in the form of reports on the proportionality of the measures introduced and their impact on constitutional rights.

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

The appeal was opposed by the State, represented in the proceedings by Michael Collins SC and Patrick McCann SC.

In his submissions to the court, Collins said that the lower court’s decisions should remain undisturbed and that the appeal should be dismissed.

‘Akin to martial law’

Opening the appeal Waters said that the High Court was wrong not to grant him and O’Doherty leave on the first day they came into the courts two years ago.

Sufficient evidence had been put before the High court to show that their claims were arguable and allow it to grant them leave.

He said that the measures, such as the lockdown, brought in over a pandemic he did not believe existed had fundamentally and ​impermissibly breached fundamental constitutional rights that he and other citizens enjoy.

In his submissions, he said there was no due diligence carried out by the state in relation to “the draconian” and unconstitutional measures that were introduced.

He added that there was also a lack of debate among Irish politicians and a failure by the “complicit and subsidised” Irish mainstream media to properly assess and scrutinise the measures introduced.

In her submissions, O’Doherty told the court that the measures, over a virus which she said was no different to the common cold were part of efforts to establish a ‘new world order’ where citizens will live under a regime like ‘Communist China.’

She was also critical of the fact that leave had been given in other cases concerning measures introduced due to Covid-19 including ones brought by non-Irish nationals, but not in her and Waters’ case.

O’Doherty and Waters claim the measures create a regime “akin to martial law”, are disproportionate and that there are other steps that are less onerous and less limiting of personal freedoms that could have met the public health concerns.

They also say that the introduction of the legislation at a time when there was a small number of Covid-19 cases in the State was disproportionate and these unlawfully and unjustifiably restricted constitutional and ECHR rights.

O’Doherty and Waters 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.

In May 2020, Justice Charles Meenan refused to grant them leave, saying their claims were not arguable.

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

Last year, the COA dismissed all grounds of their appeal.

Justice Birmingham said the court was “quite satisfied” that the approach taken by the High Court in relation to their case was correct.

The “controversial and tendentious” case presented no serious legal issue that would justify the granting of permission, the CoA also found.

The Supreme Court gave no indication as to when it would give its decision.
Waters and O’Doherty, who represented themselves, were accompanied to the hearing by a number of supporters.