Ryanair loses High Court action over Ireland’s travel advice

Ryanair has lost its High Court challenge against travel measures introduced by the Government in the wake of the coronavirus pandemic. The airline had claimed the measures amounted to a legal restriction on travel in and out of the country. The State disputed those claims, arguing the measures are merely advisory and not binding in nature. Mr Justice Garrett Simons ruled on Friday that the Government had not exceeded its executive powers and trespassed upon the legislative power in relation to the measures. Ryanair's action was against An Taoiseach Ireland and the Attorney General, seeking various orders and declarations, including one setting aside the measures announced in late July. This included the advice not to travel outside of Ireland save for essential purposes.

Ryanair also challenged the requirement for those returning to the State from countries not on the designated “green list” to restrict their movements and self-isolate for 14 days. The company claimed the restrictions were unconstitutional and breached various Health Acts, the European Convention of Human Rights and the European Charter of Fundamental Rights. It said the Government’s travel measures were outrageous, confusing and a detriment to both the public and its business.

The State had argued Ryanair had no legal basis to bring its challenge against the measures, that the courts could not intervene with this advice and that the airline’s proceedings were moot or pointless.

Aer Lingus was a notice party to the proceedings and supported Ryanair's action. In his judgment on Friday, Mr Justice Simons said the Government acted lawfully in providing travel advice and public health advice during the coronavirus pandemic on a non-statutory basis.

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The Government was entitled, in the exercise of the executive power, to provide such advice to the public, he said. Its entitlement had not been ousted by the enactment of legislation, such as the Health Acts 1947 and 1970. As of August 2020, the information published on the Government’s websites provided an “accurate portrayal” of the legal status of the travel advice and public health advice, the judgment continued.

“The advice to avoid non-essential travel and to restrict movements on entry to the State is just that: advice,” Mr Justice Simons said. “The Government merely requests that persons entering the State from a country not on the “green list” restrict their movements for 14 days. As of August 2020, there had been no legal requirement to do so.”

Where a failure to observe the advice might result in financial disadvantage for some, for example those on jobseeker’s benefit, there was a “specific legal basis for same under the social welfare legislation, which has not been challenged,” he said. The Government’s websites “do not portray the travel advice or health advice as having a legal status which it does not actually enjoy.” Mr Justice Simons said the publication of the travel and public health advice was consistent with EU law and in particular did not breach the right to freedom of movement under the Treaty on the Functioning of the EU. Ryanair had “sensibly” conceded that EU member states were entitled to derogate from EU law rights on public health grounds.

“Ryanair’s principal complaint is that, as a matter of domestic and constitutional law, the Government in publishing the impugned travel advice exceeded its executive powers and trespassed upon the legislative power,” Mr Justice Simons said. These arguments were rejected. He emphasised that Ryanair had disavowed any attempt to challenge the “underlying merits” of the travel advice, and “this judgment has nothing to say in respect of the wisdom or otherwise of the travel advice”.

“In particular, it has nothing to say on the methodology or criteria by which the ‘green list’ of countries had been prepared,” the judge concluded. He also found that the existence of a statutory requirement to complete a passenger locator form “does not have the legal effect of translating the travel advice into mandatory form.” Because it applied irrespective of whether a passenger had arrived from “green list” countries, it could not be characterised as intended to enforce compliance with the “green list”.

Among Ryanair’s other points was an argument that the travel advice was “imprecise” but the judge concluded it was clear. The evidence did not demonstrate there had been “any interference with Ryanair’s freedom to conduct its business in accordance with EU law and national laws and practices,” Mr Justice Simons said. He acknowledged that the proceedings raised “important issues as to the separation of powers” and that the terms of the travel advice were a matter of “ongoing controversy, even in their revised form”. The judge found that as Ryanair had raised arguable legal issues he was formally granted leave to bring the application, but dismissed “the substantive application in its entirety.” He proposed a costs order against Ryanair subject to submissions.