Date set for O’Doherty and Waters appeal over refused Covid-19 law challenge

An appeal by activists Gemma O’Doherty and John Waters against a refusal to allow them to challenge the constitutionality of laws introduced in response to the Covid-19 pandemic will be heard in January.

The appeal is against the High Court’s refusal to permit the two to bring their challenge and its award of costs of that hearing against them.

Ms Justice Caroline Costello, of the Court of Appeal, dealt on Friday, via remote video conference hearing, with a directions hearing in relation to the appeal. Having consulted with the sides, she fixed January 20th for the appeal, which is expected to last a day.

Ms O’Doherty, who appeared with Mr Waters via video link, said the matter is urgent and affects every citizen living in the State who, she said, are threatened with arrest if they leave their counties, along with fines and Garda checkpoints.

The World Health Organisation had “effectively said” in the last two days this virus “has not yet been proven to exist” and is “less serious than the average seasonal flu” but the country’s economy is being destroyed, she said.

‘Prejudiced’

She added that she and Mr Waters objected to the directions hearing being held via video conference, saying that did not meet the constitutional requirement for justice to be heard in public. The courts “have prejudiced themselves unwittingly”, she said.

To meet the constitutional requirement, the appeal must be heard in a public courtroom with members of the public being permitted enter without Garda interference, she said.

Ms Justice Costello said she was not dealing now with the issue of the form of the appeal hearing and noted 46 people had linked into the remote hearing.

Ms O’Doherty said that did not amount to a public hearing and remarked there were no media present. The court registrar, Padraig MacCriostail, said an Irish Times journalist was in the courtroom to report on the remote hearing, on behalf of the pool of court reporters.

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

Ms O’Doherty and Mr Waters, who represented themselves, 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 those concerning the rights to travel, bodily integrity and the family, and amounted to an “unprecedented suspension” of constitutional rights.

In his judgment last May refusing leave for judicial review, Mr Justice Charles Meenan said their claims were not arguable and they had not provided any expert evidence or facts to support their view the laws were disproportionate or unconstitutional.

‘Empty rhetoric’

The applicants, who had “no medical or scientific qualifications or expertise”, had “relied on their own unsubstantiated views, gave speeches, engaged in empty rhetoric and sought to draw parallels to Nazi Germany which is both absurd and offensive”, he said.

“Unsubstantiated opinions, speeches, empty rhetoric and a bogus historical parallel are not a substitute for facts.”

The manner in which the Houses of the Oireachtas dealt with the laws, introduced by a caretaker government and voted on by an incoming Dáil 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 also held.

Before the remote hearing commenced on Friday, the appellants raised issues with the registrar about live streaming it but were told that could not be done.

A number of supporters of the appellants who attended at the Four Courts objected to Covid-19 restrictions on the numbers who could enter the courtroom where the hearing could be viewed.