Constitutional Rights and Covid-19: O'Doherty & Anor v Minister for Health & Ors [2020] IEHC 209

• Author: Gearóid Smiddy
• Position: Second Year BCL Student, University College Cork
• Pages: 112-118

(2021) 20 COLR 112

112

CONSTITUTIONAL RIGHTS AND COVID-19: O’DOHERTY & ANOR v MINISTER

FOR HEALTH & ORS [2020] IEHC 209

Gearóid Smiddy*

A INTRODUCTION

This matter involved two former journalists seeking leave of the Court to bring judicial review

proceedings challenging the constitutionality of legislation designed to halt the spread of

COVID-19. The relief sought was an order of certiorari rendering the COVID-19 legislation

null and void on grounds of repugnancy to the Constitution.1

The framework of legislation was introduced following the World Health Organisation’s

(WHO) declaration of a pandemic in March 2020. The legislation at issue included the Health

Act 2020, Emergency Measures in the Public Interest (Covid-19) Act 2020, and a number of

statutory instruments issued by the first named respondent.2 This resulted in restrictions on

travel, the prohibition of events and allowed for the possible detention of persons suspected of

being potential sources of infection. Moreover, persons were prohibited from leaving their

place of residence without reasonable excuse.

B ARGUMENTS OF THE APPLICANTS

The applicants, who proceeded as lay litigants, contended that the measures adopted were

disproportionate and that the Minister for Health had acted on ‘fraudulent science’.3 It was

asserted that that no evidence was presented to the public that such measures had ever

succeeded in any comparable situation.4 The applicants alleged the arrival of a ‘police state’

and referred to criticisms of government-imposed lockdowns made by a former UK Supreme

Court judge.5

The application mostly consisted of complaints of unconstitutionality. It was maintained that

the COVID-19 pandemic did not amount to an emergency as per Article 28.3.3° which the

* Second Year BCL Student, University College Cork. I would like to thank the Editorial Board for helpful

comments on an earlier version. Further thanks to members of the faculty of UCC School of Law who continue

to inspire me.

1 O’Doherty & Anor v Minister for Health & Ors [2020] IEHC 209, [2020] 5 JIC 1303 [9].

2 Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020;

Emergency Measures in the Public Interest (Covid-19) Act 2020.

3 O’Doherty (n 1) [39].

4 ibid [36].

5 ibid [39].