O'Mahoney v Minister for Health and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Nessa Cahill
• Judgment Date: 31 January 2025
• Neutral Citation: [2025] IEHC 45
• Docket Number: Record no. 2021/1327 P

Between

Tracey O'Mahony

Plaintiff

and

Minister for Health, Ireland and The Attorney General

Defendants

[2025] IEHC 45

Record no. 2021/1327 P

THE HIGH COURT

Mootness – Constitutionality – Health Act 1947 s. 31A – Plaintiff challenging the constitutionality of s. 31A of the Health Act 1947 – Whether the challenge is moot

Facts: The plaintiff, Ms O'Mahoney, challenged the constitutionality of s. 31A of the Health Act 1947. While the proceedings as issued included a challenge to the regulations enabled by, and made pursuant to, s. 31A (the Regulations) (an allegation of abuse of process was made by the defendants, the Minister for Health (the Minister), Ireland and the Attorney General, in answer to that challenge), the plaintiff confirmed in written and oral submissions that the attack on the Regulations was not being pursued. The challenge of an abuse of process was accordingly also excised from the motion. The defendants’ position was that the proceedings were clearly moot, as s. 31A and the Regulations were no longer in effect and there was no permissible basis for the proceedings to proceed. The defendants sought an order dismissing the claim on the ground of mootness. The plaintiff’s position was that the proceedings challenged the “the entire legislative conception” that underlies s. 31A. Specific emphasis was placed on the arrogation of powers to the Minister (rather than the Oireachtas) to make, revoke or amend primary laws, create criminal offences, regulate the plaintiff’s rights, among other powers. It was said that presumptions of constitutionality do not properly arise and that there can be no question of constitutional interpretations of such a legislative provision. The plaintiff’s position was that the issue was not moot, and, in the alternative, that the case should proceed on the basis that the issues challenged were “capable of repetition, yet evading review” (applying the dicta of Hardiman J in Goold v Collins [2004] IESC 38) and were issues of exceptional public importance, among other reasons.

Held by the High Court (Cahill J) that the proceedings were unequivocally moot and that this was not a situation in which there was an issue of exceptional public interest such that either party had a present, material interest in the case or that it was in the interests of the public or the proper and due administration of justice for the proceedings to continue. Cahill J held that the assertion that s. 31A is likely to be re-introduced and yet evades review was not borne out by the evidence or authorities presented to her and was squarely contradicted by the history of litigation surrounding that provision and other legislation introduced in response to the Covid pandemic. Having had regard to the rationale for the mootness doctrine, she was of the view that it would not be an efficient, effective or a worthwhile use of judicial resources for the case to progress further. She found that there would be a real danger that a judgment on the issues raised in the case would be an advisory opinion as to the constitutionality of legislation and could be perceived as an attempt to direct how the Oireachtas may legislate in the future, in the absence of a good reason to decide any such question in the present. She held that this is precisely the type of hypothetical, advisory judicial intervention which the mootness doctrine aims to guard against, and highlights why that doctrine is important and should only be deviated from in tightly circumscribed and limited situations.

Cahill J dismissed the proceedings.

Proceedings dismissed.

Judgment of Ms Justice Nessa Cahill delivered on 31 ^st January 2025

Overview

1 This Judgment addresses the relatively net question of whether a challenge to an enabling provision of an Act of the Oireachtas is moot, and should not be permitted to proceed, in circumstances where the provision itself and the regulations (the introduction of which it enabled) are no longer in effect.

2 This question arises in the context of the Plaintiff's challenge to the constitutionality of section 31A of the Health Act 1947 (as inserted by section 10 of the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020) (“ Section 31A”). While the proceedings as issued included a challenge to the regulations enabled by, and made pursuant to, Section 31A (“ the Regulations”) (and an allegation of abuse of process was made by the Defendants in answer to that challenge) the Plaintiff confirmed in written and oral submissions that the attack on the Regulations is not being pursued. The challenge of an abuse of process is accordingly also excised from this Motion.

3 Consequently, this Judgment addresses whether the challenge to Section 31A is moot and whether the Proceedings should be dismissed on this basis.

4 The Defendants' position is that the Proceedings are clearly moot, as Section 31A and the Regulations are no longer in effect and there is no permissible basis for these Proceedings to proceed. By this Motion, the Defendants seek an order dismissing the claim on the ground of mootness.

5 The Plaintiff's position on the Motion is that the proceedings challenge the “ the entire legislative conception” that underlies Section 31A. Specific emphasis is placed on the arrogation of powers to the Minister for Health (“ the Minister”) (rather than the Oireachtas) to make, revoke or amend primary laws, create criminal offences, regulate the Plaintiff's rights, among other powers. It is said that presumptions of constitutionality do not properly arise and that there can be no question of constitutional interpretations of such a legislative provision. The Plaintiff's position is that the issue is not moot, and, in the alternative, that the case should proceed on the basis that the issues challenged are “ capable of repetition, yet evading review” (applying the dicta of Hardiman J. in Goold v Collins [2004] IESC 38, [2005] 1 ILRM 1 (“ Goold”)) and are issues of exceptional public importance, among other reasons.

6 As explained in this Judgment, I find that the proceedings are moot; that it cannot be said that Section 31A has evaded or would evade review; and that there are no other circumstances which warrant this action proceeding. The Proceedings are therefore dismissed.

Section 31A

7 Section 31A was introduced into law on 20 March 2020 in the context of the Covid pandemic. It confers extensive powers on the Minister to make regulations to prevent, limit, minimise or slow the spread of Covid.

8 According to Section 31A(1),

“ The Minister may, having regard to the immediate, exceptional and manifest risk posed to human life and public health by the spread of Covid-19 and to the matters specified in subsection (2), make regulations for the purpose of preventing, limiting, minimising or slowing the spread of Covid-19 (including the spread outside the State) or where otherwise necessary, to deal with public health risks arising from the spread of Covid-19…”

9 There is then an extensive list of regulations that may be made (without prejudice to the general power conferred by the section). This list includes regulations with potentially far-reaching and invasive effects on individuals and on society as a whole. It includes the possibility of regulations restricting travel and movement, requiring people to remain in certain locations, prohibiting certain events and classes of events, and requiring safeguards to be put in place by owners or occupiers of premises or classes of premises or places or classes of places “ to prevent, limit, minimise or slow the risk of persons attending at such place or class of place of being infected with Covid-19”. The Minister is also given a more general power to introduce “ any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19” (Section 31A(1)(i)).

10 The parties agree that more than 100 regulations (the Plaintiff refers to the introduction of 138 regulations) were passed by the Minister during the currency of the pandemic, pursuant to the power conferred by Section 31A, and that none of these Regulations remain in effect.

11 Section 31A itself ceased to be operative on 31 March 2022, pursuant to a so-called ‘ sunset clause’ (Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020, section 2(3)(b), as amended by successive amendments which extended the expiry date of the provision from 9 November 2020, to 9 June 2021, to 9 November 2021, to 9 February 2022 and finally to 21 March 2022).

The Proceedings

12 By Plenary Summons dated 2 March 2021, the Plaintiff issued these proceedings seeking to challenge the constitutionality of Section 31A and the Regulations.

13 The Plaintiff seeks five declarations of repugnancy of Section 31A to Article 15.2.1 of the Constitution by reason of the purported conferral on the Minister alone of the following powers:

• (a) “Omnibus” sole law-making powers;

• (b) The power to amend primary legislation without temporal restraint or limit;

• (c) The power to enact criminal offences and penalties;

• (d) The power to regulate or suspend rights guaranteed to the Plaintiff by the Constitution;

• (e) The power to effect or make legislation unrestricted by, or without regard to, principles and policies.

14 The Plaintiff also seeks an order setting aside, disapplying, annulling or otherwise rendering void secondary law or measures brought into effect under section 31A. This prayer for relief is not being pursued by the Plaintiff.

15 The only orders now sought in the Proceedings are the five declarations of repugnancy summarised above.

16 By the Statement of Claim delivered on 23 April 2021, the Plaintiff pleads the unconstitutionality of the conferral of powers on the Minister by Section 31A. It is also pleaded...