O'Doherty v The Minister for Health

JudgeMr. Justice O'Donnell,Mr. Justice Gerard Hogan
Judgment Date05 July 2022
Neutral Citation[2022] IESC 32
CourtSupreme Court
Docket NumberS:AP:IE:2021:000111
Gemma O'Doherty and John Waters
Minister for Health, Ireland and The Attorney General


Dáil Éireann, Seanad Éireann and An Ceann Comhairle
Notice Parties

[2022] IESC 32

O'Donnell CJ

Irvine P

MacMenamin J

O'Malley J

Baker J

Hogan J

Murray J




Judicial review – Proportionality of legislation – Expert evidence – Applicants seeking leave to seek judicial review – Whether expert evidence is necessary in judicial review challenges to the proportionality of legislation

Facts: The applicants, Ms O’Doherty and Mr Waters, sought leave to bring judicial review, seeking an order of certiorari nullifying the Health Act 2020, the Emergency Act 2020, and Statutory Instruments 121/2020 and 128/2020. The High Court (Meenan J) refused leave to bring judicial review ([2020] IEHC 209) and the Court of Appeal subsequently dismissed an appeal against that decision ([2021] IECA 59). The applicants were granted leave to appeal to the Supreme Court on one specific ground on 23 November, 2021 ([2021] IESCDET 129): “Should leave to apply for judicial review have been granted in circumstances where the applicants had failed to lay any evidential foundation by way of reports or affidavits from scientific or medical experts regarding the proportionality of the Measures (other than those amending the Residential Tenancies Act 2004 and the Mental Health Act 2001 and those alleged to impact the livelihood of the applicants) so far as they concern in particular the constitutional rights to liberty, free movement and travel (Article 40.3.1 and Article 40.4.1); the inviolability of the dwelling (Article 40.5) and freedom of association (Article 40.6)? In particular, are the Measures on their face of such clear and significant impact upon the constitutional rights of every citizen that if their validity is challenged in judicial review proceedings leave to seek judicial review should be granted? If so, does the evidential burden shift to the parties denying invalidity to demonstrate the necessity and proportionality of the Measures even if the applicants have not advanced any evidence (scientific, medical or technical) of direct impact upon any person?”

Held by O'Donnell CJ that expert evidence is not essential in order to challenge the constitutional validity of any legislative provision; nor is such evidence essential when a challenge is based on a claim of lack of proportionality. He held that there is no principle in Irish law that the onus of justifying any legislative measure lies upon a state respondent or shifts to that respondent on proof of interference with or impact upon rights. He held that where a substantial explanation for measures affecting rights is available on the face of the legislation, and in evidence adduced, the question of whether it is necessary to establish an arguable case in validity will depend on the nature of the challenge. He held that it may be possible to advance a claim that while accepting the objective identified in the legislation and the assessment of the circumstances giving rise to the legislation, that nevertheless the measures adopted are excessive and lack proportionality; such a claim may be advanced by argument and analysis alone without necessarily advancing evidence. He held that if the claim made involves a challenge to the objective identified on the assessment contained in the legislation and/or supporting evidence, then some plausible evidence would be required to establish that there was an arguable case that this was so. He held that in this case, by the time the High Court came to make its decision there was in the legislation, and in the evidence submitted, substantial support for the measures. He held that the claim made did not accept that evidence and argue for its less restrictive means of achieving the objective; rather it sought to challenge and deny the assessment of the situation and the necessity for the measures. He held that such a claim required some plausible evidence to be considered sufficiently arguable to satisfy the threshold for the grant of leave to seek judicial review.

O'Donnell CJ held that no such evidence was adduced, and accordingly the High Court was correct to refuse leave to seek judicial review.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 5th day of July 2022


. While I have the misfortune to disagree with the conclusions of the majority of the Court, I gratefully adopt the statement of facts and the outline of the principal legal issues set out in the judgment of the Chief Justice. As we shall see, the applicants in the present case originally sought leave to apply for judicial review in the High Court. They were directed by order of Murphy J. dated 21st April 2020 to make that application for leave on notice to the respondents in accordance with Ord. 84, r. 24(1) RSC. The respondents duly filed an affidavit in opposition and were heard in opposition to the grant of leave. Leave was ultimately refused by the High Court and the Court of Appeal. By a Determination dated 23rd November 2021 the applicants were permitted to appeal to this Court against that refusal of leave in respect of three grounds in particular: see [2021] IESCDET 129. I propose presently to examine these grounds in more detail. But first it is necessary to say something more by way of introduction to this appeal.


. The emergence of a novel coronavirus (known as SARS-CoV2) in the city of Wuhan, Hubei Province in the central region of the People's Republic of China at some stage in late December 2019 – or possibly even earlier – was to present this State (together with virtually every other country in the world) with one of the greatest public health challenges in a century. This was a highly infectious virus for which at the time there was no known medical therapy or vaccination. It produced a new pneumonia style illness known as Covid-19 which was sometimes lethal, especially in the elderly and the immuno-compromised.


. By February 2020 the thoughts of public health agencies and Governments were directed to the extent of the threat posed by this new emerging pathogen. As Meenan J. noted in his judgment in the High Court, in late February 2020 the Lombardy region of northern Italy endured a form of medical catastrophe when its admittedly world-class medical system was nonetheless effectively overrun by the uncontrolled spread of this new infection. The medical and public health communities in this country (and elsewhere) must have shuddered at these developments and dreaded the prospect which the imminent arrival of the virus presented. And the virus came.


. By mid-March 2020 this State faced a full blown public health and medical emergency. There was a real risk that our own hospital and public health system would be overrun. In the event this, fortunately, did not quite happen. The Government and the Oireachtas responded to this incipient crisis with a series of legislative measures, the details of which I will shortly describe. The effect of these measures was to ensure that the majority of the population remained at home for long periods, with many features of ordinary life suspended. These restrictions continued – with different degrees of intensity – over a period of two years until the end of January 2022.


. The nature and extent of the response of the elected and democratically elected members of the Oireachtas and Government to this crisis can be – and is – a matter of legitimate comment and debate. Some may, for example, consider that these measures were not necessary or had counter-productive effects. Others may think that the response of countries such as Sweden – which in large measure avoided large scale mandatory stay at home measures – was more appropriate. Yet others again may counter by saying that the experience of a country such as Sweden with its broadly dispersed population in a vast swathe of territory and which enjoys an advanced public health care system could not easily be replicated here. There are, of course, many others who contend that the legislative and administrative response to the crisis was, if anything, too permissive and that such was the extent and scale of the medical emergency that an even more rigorous response was required.


. One thing is clear: this Court has neither the competence or expertise nor (just as importantly) the democratic mandate to choose between the range of possible responses to this crisis: these were matters exclusively for the Government and the Oireachtas to consider and determine. While the appropriate nature of the response to a crisis of this kind will doubtless be the subject of much political, scientific, medical and epidemiological debate over the coming years, appropriate and due weight must be given to the judgment of those who are politically accountable to the People. Especially in the early days of the pandemic, both the Oireachtas and the Government were confronted with a novel public health emergency which was attended by much medical and scientific uncertainties.


. Given that Article 40.3.2 of the Constitution obliges the State by its laws to protect and to vindicate “as best it may” the life and person of every citizen, the Government and the Oireachtas were under a clear constitutional duty to seek to protect the population from a potentially lethal new pathogen. The very existence of this duty was itself recognised in the Long Titles of both the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 (“the Health Act 2020”) and the Emergency Measures in the Public Interest ( COVID-19) Act 2020 (“the Emergency Measures Act 2020”).


. Accordingly, so far from choosing or electing as between the range of...

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