McGrath v Director of Public Prosecutions and Others; Mulreany v Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 22 June 2023
• Neutral Citation: [2023] IEHC 347
• Court: High Court
• Docket Number: [Record No. 2021 350 JR]

Between

Kirstie McGrath

Applicant

and

The Director of Public Prosecutions, The Minister for Foreign Affairs, The Minister for Health, Ireland & The Attorney General

Respondents

Between

Niamh Mulreany

Applicant

and

The Director of Public Prosecutions, The Minister for Foreign Affairs, The Minister for Health, Ireland & The Attorney General

Respondents

[2023] IEHC 347

[Record No. 2021 350 JR]

[Record No. 2021 349 JR]

THE HIGH COURT

Counsel for the applicants: Michael P. O'Higgins SC, John Fitzgerald SC, Mark Lynam BL, Keith Spencer BL

Counsel for the second to fifth respondents: Michael Cush SC, Catherine Donnelly SC, Emile Burke-Murphy BL

Counsel for the first respondent: Kate Egan BL

JUDGMENT of Ms Justice Bolger delivered on the 22 ^nd day of June, 2023

1 . This is an application for certiorari and declaratory reliefs on foot of the applicants' detention for the purpose of mandatory quarantine and their criminal prosecution for having resisted being brought to a designated facility, in breach of S.38D(l)(C) of the Health Act 1947 as amended. The applicants were detained pursuant to an order made by the Minister for Health on 26 March 2021, that mandatory quarantine in a designated facility was required for persons travelling to Ireland from the United Arab Emirates (‘UAE’).

2 . The applicants did not challenge the scheme of mandatory quarantine, which they accepted had a statutory basis in s. 38B, as amended by s. 7 of the Health (Amendment) Act 2021. Neither did they challenge the appropriateness of the Minister's decision to designate the UAE. Rather the applicants narrowed their grounds to two claims:

• (i) The power of the Minister for Health to order the designation of States breaches the principles of the separation of powers and the rule of law and runs contrary to the requirements of Articles 15.2 and 38.1 of the Constitution. The designation ought to have been made by way of a statutory instrument so as to ensure parliamentary supervision and scrutiny.

• (ii) The power of review by a designated appeals officer constitutes an impermissible exercise of the judicial function, contrary to Article 34.1 of the Constitution and is not saved by Article 37.1.

3 . For the reasons set out below I am refusing this application.

Relevant Statutory Provisions

4 . Section 5 of the Health Act 1947 (“the Act”) allows the Minister to make regulations which must be laid before the Oireachtas:

“5. (1) The Minister may make regulations in relation to anything referred to in this Act as prescribed.

…

(5) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder”.

5 . S.31A of the Health (Amendment Act) 2020 amended the Act to allow regulations to be made in response to the Covid-19 pandemic. S.31A(2) set out what the Minister had to have regard to in making such regulations, all of which related to public health issues.

6 . Further amendments were made by the Health (Amendment) Act 2021 (“the 2021 Act”). Section 7 made provision for mandatory hotel quarantine by inserting sections 38B to 38M into the 1947 Act. Section 38E allowed the Minister to designate a State for mandatory hotel quarantine and required the Minister to have regard to the same considerations as for making regulations under S31A as well as additional considerations set out in S.38A(2).

7 . Section 38E provided:

“38E. (1) Subject to subsection (3), the Minister may designate in writing any state (in this Act referred to as a ‘designated state’) where there is known to be sustained human transmission of Covid-19 or any variant of concern or from which there is a high risk of importation of infection or contamination with Covid-19 or any variant of concern by travel from that state.

(2) The Minister shall, as soon as practicable after a designation is made under subsection (1), ensure that the fact of such designation is published on a website maintained by the Minister or the Government

(3) When making a designation under subsection (1), the Minister shall—

(a) have regard to the matters referred to in paragraphs (a) and (b) of section 31A(2) and paragraphs (a) to (e) of section 38A(2), subject to the modification that a reference in those paragraphs to Covid-19 shall be taken to include a reference to a variant of concern,

(b) have regard to the advice of the Chief Medical Officer of the Department of Health, and

(c) consult with the Minister for Foreign Affairs and such other Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government.

(4) The Minister shall on a regular basis review the situation in a state designated under subsection (1) and, shall, having regard to the matters referred to in subsection (3)(a) and (b) and having consulted in accordance with subsection (3)(c), revoke, in writing, a designation where appropriate”.

8 . Section 38B(16) provided for a review of a person's mandatory quarantine by a designated appeals officer:

“A person may request that his or her quarantine, or in the case of paragraph (f), the quarantine of a dependant person, be reviewed by a designated appeals officer on the grounds that—

(a) where the person is detained under subsection (7), the circumstances set out in paragraphs (a) and (b) of subsection (1) do not apply to him or her,

(b) at the time of making the request, the requirements of subsection (2)(a) which applied to the person have been satisfied,

(c) at the time of making the request, the requirements of subsection (2)(b) which applied to the person have been satisfied, or, if applicable, a determination of an officer under subsection (2)(b)(iii)(II) or subsection (6) that he or she can not effectively isolate at home, is erroneous,

(d) for medical or other exceptional reasons, including the necessity of providing care for any vulnerable person, his or her quarantine in the designated facility should be ended before the expiration of the period of quarantine required under subsection (2) in respect of him or her,

(e) he or she needs to leave the designated facility on urgent humanitarian grounds,

(f) a decision, made under subsection (10), not to allow a dependant person leave quarantine, was erroneous, or

(g) he or she, being an applicable traveller by virtue of subsection (1)(a) —

(i) has not been in a designated state at any time within the period of 10 days prior to his or her arrival in the State,

(ii) can demonstrate that he or she has quarantined in a facility, equivalent to a designated facility, in a non-designated state for the duration of the period between leaving the designated state and arriving in the State,

(iii) can demonstrate that the quarantine referred to in subparagraph (ii) was undertaken in a room on his or her own,

(iv) has the result of a RT-PCR test as defined in, and in accordance with the requirements of, any regulations under this Act,

(v) has, on arrival in the State, taken a RT-PCR test and the result of that test is that Covid-19 or the virus SARS-CoV-2 is not detected, and

(vi) has, on or after the fifth day of his or her arrival in the State, taken a RT-PCR test and the result of that test is that Covid-19 or the virus SARS-CoV-2 is not detected”.

9 . Section 38B(17) provided for the decisions that a designated appeals officer could make:

“(17) Where a request is made by a person under subsection (16), his or her quarantine shall be reviewed by a designated appeals officer as soon as practicable but no later than 24 hours from the time of making the request and the designated appeals officer shall, having called on and considered such evidence as he or she requires to make a decision in relation to that request—

(a) confirm that the person is no longer obliged to remain in quarantine where—

…

or

(b) refuse a request made under that subsection and give reasons for that refusal”.

10 . The procedures to be followed in respect of a request for review of quarantine under section 38(16) were set out in the Health Act 1947 (Section 38G — Rules and Procedures for Review of Quarantine) ( COVID-19) Regulations 2021 (SI No 143/2021).

11 . The application of the s.38E regime was subject to a sunset clause in s.9 of the 2021 Act which provided:

“(2) Subject to subsection (3), this Act shall come into operation on such day or days as the Minister for Health may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(3) Sections 2, 7 and 8 —

(a) may, during the relevant period only, be the subject of an order under subsection (2), and

(b) where they are the subject of such an order, shall, subject to subsection (6), continue in operation during the relevant period only.

(4) In this section, “relevant period” means—

(a) the period of 3 months commencing on the day following the passing of this act”

Because of the application of that sunset clause, these provisions do not appear on the revised version of the 1947 Act available online.

Background

12 . On 22 March 2021, the Minister designated the UAE and 32 other states as per s. 38E(1), having had regard to the advice of the Chief Medical Officers and to the other matters specified in section 38E(2). The designation was published on the government's website; www.gov.ie. Two days later, the applicants travelled to the UAE from Dublin on 24 March 2021 for a week's holiday and were due to fly home on 31 March. When they presented for...