Gemma O’Doherty and John Waters’ appeal over constitutionality of Covid laws dismissed

In a six to one decision, the court's ruling brings to an end the pair’s legal action commenced shortly after the state introduced various regulations and measures in response to the pandemic over two years ago.

Ms O'Doherty and Mr Waters' appeal was 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”.

Giving the Supreme Court's lead judgement the Chief Justice Donal O'Donnell said that the High Court was correct to refuse to grant leave in this case.

The Chief Justice along with High Court President Ms Justice Mary Irvine, Mr Justice John MacMenamin, Ms Justice Iseult O'Malley, Ms Justice Marie Baker, and Mr Justice Brian Murray all upheld the lower courts' findings.

In a separate decision Mr Justice Gerard Hogan said he would have allowed the appeal on certain grounds only.

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 sought 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.

The State argued that the lower court's decisions should remain undisturbed and the appeal should be dismissed.

The High Court and the COA's findings that the applicants had not produced sufficient evidence to support their arguments and that their claims were at least arguable were correct, the State argued.

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Mr Waters had argued that the High Court was wrong not to grant him and Ms O'Doherty leave. Sufficient evidence had been put before the High court to show that their claims were arguable.

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.

He said that no due diligence was carried out by the state in relation to "the draconian" and unconstitutional measures that were introduced.

He said there was a lack of debate among Irish politicians and a failure by the Irish mainstream media to properly assess and scrutinise the measures introduced.

Ms O'Doherty had argued that the measures were taken over a virus that was "no different to the common cold."

They also claimed the measures create a regime “akin to martial law”, are disproportionate and that there were 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.

In their action Ms O'Doherty and Mr Waters had 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, Mr 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.

Mr 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.

Mr Waters and Ms O'Doherty had throughout the proceedings represented themselves in the hearings.