O'Doherty v The Minister for Health

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 13 May 2020
• Neutral Citation: [2020] IEHC 209
• Docket Number: [2020 271 JR]
• Court: High Court
• Date: 13 May 2020

BETWEEN

GEMMA O'DOHERTY

AND

JOHN WATERS

APPLICANTS

AND

THE MINISTER FOR HEALTH, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

DÁIL ÉIREANN, SEANAD ÉIREANN

AND

AN CEANN COMHAIRLE

NOTICE PARTIES

[2020] IEHC 209

Meenan J.

[2020 271 JR]

THE HIGH COURT

JUDICIAL REVIEW

Administrative & constitutional law – Public health – Legislation dealing with COVID-19 pandemic – Application to seek judicial review – Whether legislation constitutional – Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act, 2020 – Emergency Measures in the Public Interest (COVID-19) Act, 2020

Facts: As part of the State’s response to the worldwide COVID-19 outbreak, the first respondent had introduced primary and secondary legislation to halt the spread of COVID-19 and to mitigate the economic and social effect. The applicants considered that the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and Emergency Measures in the Public Interest (COVID-19) Act 2020 were unconstitutional and sought leave to seek judicial review claiming it was in the public interest.

Held by the Court, that the application would be dismissed. The Court considered that the application should have been brought as plenary proceedings but proceeded to consider the application on its merits. Having done so, the Court was satisfied that the applicants had failed to depose any relevant facts, points of law or expert opinions to sustain their assertion of unconstitutionality. The parties were invited to make submissions on costs.

JUDGMENT of Mr. Justice Meenan delivered on the 13th day of May, 2020

Introduction

1 The applicants, who appeared in person, seek the leave of the Court to bring judicial review proceedings challenging the constitutionality of legislation and regulations enacted to arrest the spread of a virus, COVID-19, within the State. The applicants are further challenging the steps taken and the procedures followed by the Oireachtas in enacting the legislation.

2 On 4 January 2020, the World Health Organisation (“ WHO“) reported on a cluster of pneumonia cases in Wuhan, Hubei Province of the People's Republic of China. Less than three weeks later, 22 January 2020, the WHO issued a statement stating that there was evidence of human to human transmission in Wuhan of such pneumonia disease, and that more investigation was needed to understand the full extent of transmission.

3 On 30 January 2020, the WHO reconvened its Emergency Committee. This Committee reached a consensus and advised that the outbreak constituted a Public Health Emergency of International Concern. On 11 February 2020, the WHO advised that this coronavirus disease would be officially named COVID-19. With international travel it was inevitable that COVID-19 would spread well beyond the borders of China.

4 The first country in Europe to experience a significant outbreak of COVID-19 was Italy. The effects on the health service, society and the economy were devastating. It was only a matter of time before COVID-19 spread to Ireland. This happened on 29 February 2020. The first death related to COVID-19 was reported on 11 March 2020, when there were 43 confirmed cases. At the time this application heard before the Court on 5/6 May, in Ireland there were some 22,248 confirmed cases of COVID-19 and 1,375 deaths. COVID-19 was declared a pandemic by the WHO on 11 March 2020.

5 The first named respondent took a number of measures to halt the spread of COVID-19 and to address the economic and social effects of the virus. Two pieces of legislation were enacted: -

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

II. Emergency Measures in the Public Interest (COVID-19) Act, 2020.

In addition, a number of statutory instruments were made: S.I. No. 121/2020 –Health Act, 1947 (Section 31A¬. – Temporary Restrictions) (COVID-19) Regulations, 2020 and S.I. 128/2020 – Health Act, 1947 (Section 31a – Temporary Restrictions) (Covid-19) (Amendment) Regulations, 2020.

6 There was a further S.I.: S.I. No. 153/2020 – Health Act, 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Amendment) (No. 2) Regulations, 2020, which extended the regulations to 18 May 2020.

7 Following the general election of February 8, 2020 the newly elected Dáil, on 20 February 2020, failed to elect a new Taoiseach. Under the provisions of Article 28.11.1°, the Taoiseach having resigned, the members of the Government were deemed also to have resigned; but the Taoiseach and other members of the Government continue to carry on their duties until their successors are appointed.

Application for judicial review

8 On 15 April 2020, the applicants made an application, ex parte, seeking the leave of the court to bring judicial review proceedings. This application was grounded upon a “ statement required to ground application for judicial review“ together with a short verifying affidavit. The original Statement of Grounds did not state with any clarity what reliefs the applicants were seeking, this was clarified in a further affidavit from the applicants sworn on 5 May 2020.

9 The applicants are seeking, inter alia, reliefs including: -

“The relief sought is an order of certiorari of the above legislation and/or such further or other order to declare and render the legislation null and void on the grounds of its repugnancy to the various provisions of Bunreacht na hÉireann 1937.”

The legislation is that referred to at para. 5 above.

10 Further, the applicants maintain that the said legislation: -

“has not been validly enacted in accordance with the provisions of Bunreacht na hÉireann, Dáil Standing Orders of business 2020, the Interpretation Act, 1937 and the Statutory Instruments Act, 1947.”

11 Given that the applicants have raised issues concerning the legislative process, the notice parties (whom I shall collectively refer to as “ the Oireachtas“) were joined to the proceedings.

12 The ex parte application for leave to bring judicial review proceedings was made before Sanfey J. who directed, pursuant to 0. 84, r. 24 RSC, that the application be made on notice to the respondents.

13 13. The matter was mentioned before Murphy J. on 21 April 2020 and before myself a week later for the purposes of setting out a timetable for the delivery of affidavits and legal submissions. On both occasions the applicants were invited to deliver legal submissions in support of their application. They chose not to do so. The matter was then fixed for hearing commencing 5 May 2020.

14 At the hearings, both before Murphy J. and myself, the applicants submitted that, by reason of limited access to the court for the public who wished to attend, the hearings were contrary to the provisions of Article 34.1 of the Constitution. Both Murphy J. and myself ruled on this matter in similar terms. I will refer to this ruling later in the judgment.

The legislation/regulations

15 I will set out in summary form the provisions of the legislation which the applicants seek to have declared unconstitutional, I will also refer to the regulations made thereunder: -

(1) Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act, 2020.

The long title of this Act states: -

“An Act, to make exceptional provision, in the public interest and having regard to the manifest and grave risk to human life and public health posed by the spread of the disease known as COVID-19 and in order to mitigate, where practicable, the effect of the spread of the disease known as COVID-19, to amend the Health Act 1947 to confer a power on the Minister for Health to make regulations prohibiting or restricting the holding of certain events or access to certain premises and to provide for enforcement measures; to provide for powers for certain medical officers of health to order, in certain circumstances, the detention of persons who are suspected to be potential sources of infection …“

16 Section 10 of the Act amends the Health Act, 1947 (the Act of 1947) by the addition of a s. 31A which has the title “Regulations for preventing, limiting, minimising or slowing the spread of COVID-19”.

“31A.(1) The Minister [the first named respondent] may, having regard to the immediate, exceptional and manifest risk posed to human life and public health by the spread of COVID-19 … make regulations for the purpose of preventing, limiting, minimising or slowing the spread of COVID-19 … to deal with public health risks arising … and, … such regulations may, in particular, provide for all or any of the following:

(a) restrictions to be imposed upon travel to or from the State;

(b) restrictions to be imposed upon travel to, from or within geographical locations to which an affected areas order applies;

(c) without prejudice to the generality of paragraph (b), restrictions to be imposed upon persons or classes of persons resident in, working in or visiting locations referred to in paragraph (b) including (but not limited to)—

(i) requiring persons to remain in their homes, or

(ii) without prejudice to any other provisions of this Act or regulations made thereunder requiring persons to remain in such other places, as may be specified by the Minister;

(d) the prohibition of events, or classes of events, …

—

(f) the safeguards required to be put in place by owners or occupiers of a premises or a class of premises … in order to prevent, limit, minimise or slow the risk of persons attending such premises of being infected with COVID-19;

(g) the safeguards required to be put in place by owners or occupiers of any other place or class of place, (including the temporary closure of such place or class of place) in order to prevent, limit, minimise or slow the risk of persons attending at such place or class of place of being infected with COVID-19;

—

(k) such...