Ryanair DAC v an Taoiseach

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date02 October 2020
Neutral Citation[2020] IEHC 461
CourtHigh Court
Docket Number2020 No. 547 J.R.
Date02 October 2020
BETWEEN
RYANAIR DAC
APPLICANT
AND
AN TAOISEACH IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
AER LINGUS LTD
NOTICE PARTY

[2020] IEHC 461

Garrett Simons J.

2020 No. 547 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Travel advice – Treaty on the Functioning of the European Union – Applicant seeking to challenge the legality of travel advice published by the Government of Ireland – Whether the publication of the impugned travel advice was in breach of a number of provisions of the Treaty on the Functioning of the European Union

Facts: The applicant, Ryanair DAC, sought to challenge the legality of travel advice published by the Government of Ireland in the context of the coronavirus pandemic. First, it was said that what had been published by the Government goes well beyond mere travel advice and, in truth, represents the imposition of restrictions on international travel. Secondly, it was submitted, in the alternative, that even if the Government’s public statements could properly be characterised as mere travel advice, the form and procedure by which the advice had been published was unlawful. Thirdly, Ryanair contended that the publication of the impugned travel advice was in breach of a number of provisions of the Treaty on the Functioning of the European Union.

Held by the High Court (Simons J) that the Government acted lawfully in providing travel advice and public health advice in respect of the coronavirus pandemic on a non-statutory basis. Simons J held that the Government was entitled, in the exercise of the executive power, to provide such advice to the public. Simons J held that its entitlement to do so had not been ousted by the enactment of legislation in the field, such as the Health Act 1947 and the Health Act 1970. Simons J held that, as of August 2020, the information published on the Government’s official websites presented an accurate portrayal of the legal status of the travel advice and public health advice. Simons J held that the advice to avoid non-essential travel and to restrict movements on entry to the State was just that: advice; the Government merely requested that persons entering the State from a country not on the “green list” restrict their movements for 14 days. Simons J held that, as of August 2020, there had been no legal requirement to do so. Simons J held that if and insofar as the failure to observe the advice may result in a financial disadvantage for certain classes of individual, e.g. those in receipt of jobseeker’s benefit, there was a specific legal basis for same under the social welfare legislation which had not been challenged. Simons J held that the Government’s official websites did not portray the travel advice or health advice as having a legal status which it does not actually enjoy. Simons J held that the publication of travel advice and public health advice is consistent with EU law; in particular, it does not breach the right to freedom of movement provided for under Articles 20 and 21 of the Treaty on the Functioning of the European Union. Ryanair conceded that a Member State, such as the Irish State, is, in principle, entitled to derogate from EU law rights on the grounds of public health. Simons J held that this concession was sensibly made. Simons J held that, insofar as the right to free movement is concerned, for example, express provision is made under the Citizenship Directive (Directive 2004/38/EC) for measures restricting freedom of movement on the grounds of public health.

Simons J held that the threshold for the grant of leave set out in G. v Director of Public Prosecutions [1994] 1 I.R. 374 had been met in this case; the formal order would thus grant leave to apply for judicial review, but dismiss the substantive application in its entirety.

Application dismissed.

JUDGMENT of Mr. Justice Garrett Simons delivered on 2 October 2020
INTRODUCTION 2
PROCEDURAL HISTORY 4
THE IMPUGNED “TRAVEL ADVICE” / PUBLIC STATEMENTS 7
DETAILED DISCUSSION 12
PROPER CHARACTERISATION OF THE IMPUGNED TRAVEL ADVICE 12
DISCUSSION AND DECISION ON PROPER CHARACTERISATION 14
PUBLIC ADVICE IN RESPECT OF INFECTIOUS DISEASES 23
SOURCE OF GOVERNMENT'S POWER TO PROVIDE ADVICE 38
EUROPEAN LAW GROUNDS 39
(i). Derogation must be in legislative form 41
(ii). Derogation must comply with domestic constitutional order 43
(iii). The travel advice is not imprecise 43
Alleged breach of other freedoms not supported by evidence 45
CHARTER OF THE FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION 46
PRELIMINARY OBJECTIONS REVISITED 48
(i) IS TRAVEL ADVICE JUSTICIABLE? 48
(ii). Locus standi 51
Discussion and decision on locus standi 52
(iii). Mootness 57
CONCLUSION 60
FORM OF ORDER 61
INTRODUCTION
1

These proceedings seek to challenge the legality of travel advice published by the Government of Ireland in the context of the coronavirus pandemic. I use the term “advice” guardedly, in circumstances where one of the principal issues for determination in these proceedings is, in fact, whether the content of the government's public statements goes beyond mere travel advice and involves, instead, a form of restriction on travel.

2

The impugned travel advice includes not only guidance in respect of outward bound travel, but also extends to guidance to travellers entering the Irish State. Any person entering the Irish State is currently advised to restrict their movements for a period of fourteen days. This advice does not apply to travellers entering the Irish State from a small number of countries identified on the so-called “green list”. As of 29 July 2020, however, the official website of the Department of Foreign Affairs had stated that “the Irish Authorities require anyone coming into Ireland […] to restrict their movements for 14 days” (emphasis added).

3

Ryanair contends that the publication of this travel advice is unlawful. For introductory purposes, the airline's case might be summarised as follows. First, it is said that what has been published by the Government of Ireland goes well beyond mere travel advice and, in truth, represents the imposition of restrictions on international travel. The language used in the government's public statements is said to be mandatory in nature. There is also said to be a coercive element to the travel advice in that, in some instances. failure to comply with same entails a financial disadvantage. In particular, a person who has travelled abroad in breach of the travel advice is not entitled to avail of a concession under the social welfare legislation which facilitates foreign holidays by allowing recipients to claim jobseeker's benefit notwithstanding a temporary (two week) absence from the State.

4

Secondly, it is submitted, in the alternative, that even if the government's public statements can properly be characterised as mere travel advice, the form and procedure by which the advice has been published is unlawful. It is said that insofar as infectious diseases (as defined) are concerned, any advice to the public may only be given pursuant to the Health Act 1947 and/or the Health Act 1970. In practice, this would appear to mean that only the Minister for Health is authorised to provide public advice in respect of infectious diseases. Insofar as there may previously have been an executive power to provide such public advice, same is said to have been ousted by the intervention of the legislature in this field. Put otherwise, the existence of the relevant statutory powers is said to have displaced any inherent executive power.

5

Thirdly. Ryanair contends that the publication of the impugned travel advice is in breach of a number of provisions of the Treaty on the Functioning of the European Union. In particular, it is alleged that there has been a breach of the right of free movement, the right of establishment and the right to provide services. This argument is narrowly framed, and, again, confined to the form of the impugned travel advice.

6

The State respondents strenuously contest all of these contentions. Indeed, the State respondents submit that the proceedings should be dismissed in limine, and have raised a number of preliminary objections in terms of mootness, justiciability, and standing (locus standi). In order to properly understand these preliminary objections, however, it is necessary for the reader first to have an appreciation of the substantive legal issues which Ryanair seeks to agitate in the proceedings. For this reason, the discussion of the preliminary objections will be deferred until after the discussion of the underlying merits. (The discussion of the preliminary objections commences at paragraph 132 below). This sequence is unusual, but makes sense in the present case because the preliminary objections are so enmeshed with the substantive merits that it would be artificial to attempt to separate them out. Put otherwise, the case could not have been disposed of by reference to the preliminary objections alone, and thus a discussion of the underlying merits is required in any event.

PROCEDURAL HISTORY
7

These proceedings take the form of conventional (non-statutory) judicial review proceedings pursuant to Order 84 of the Rules of the Superior Courts. The applicant for judicial review is the well-known international airline, Ryanair. A second airline, namely Aer Lingus, has been named from the outset of the proceedings as a notice party. As explained presently, the precise role of Aer Lingus in the proceedings has been a matter of some controversy.

8

An application for leave to apply for judicial review had been made on an ex parte basis to the High Court (Meenan J.) on 31 July 2020. The High Court directed that the respondents be put on notice of the application for leave. The parties ultimately agreed that there should be a “rolled up” or “telescoped” hearing of...

To continue reading

Request your trial
6 cases
  • Delaney v The Personal Injuries Board and Others
    • Ireland
    • Supreme Court
    • 9 Abril 2024
    ...of individuals in the absence of primary or secondary legislation and under threat of compulsion” at issue in Ryanair DAC v An Taoiseach [2020] IEHC 461, [2021] 3 IR 355 (at para 41, my emphasis). As is evident from the judgment of Simons J in that case, the gravamen of the applicant's case......
  • McGrath v Director of Public Prosecutions and Others; Mulreany v Director of Public Prosecutions and Others
    • Ireland
    • High Court
    • 22 Junio 2023
    ...in O'Neill v Minister for Agriculture [1998] 1 I.R. 539, [1997] 2 I.L.R.M. 435, and Simons J in the High Court in Ryanair v An Taoiseach [2020] IEHC 461, [2020] 2 I.L.R.M. 16 . The applicants therefore submit that designation function afforded to the Minister under s.38E amounts to a legisl......
  • Colbeam Ltd v Dún Laoghaire-Rathdown County Council
    • Ireland
    • High Court
    • 31 Julio 2023
    ...See above as to why it is obiter. 118 Dowling §29. 119 Gavigan v Valuation Tribunal [2020] IEHC 670 §15. 120 Ryanair DAC v An Taoiseach [2020] IEHC 461; [2021] 3 IR 355; 121 Simons J cited North Meath Wind Farm. 122 Crofton Buildings Management CLG v. An Bord Pleanála [2022] IEHC 704. 123 E......
  • Ryanair DAC v an Taoiseach
    • Ireland
    • High Court
    • 31 Diciembre 2020
    ...2020 INTRODUCTION 1 The principal judgment in these proceedings had been delivered on 2 October 2020, Ryanair DAC v. An Taoiseach [2020] IEHC 461. This second judgment addresses the appropriate costs order to be made in the proceedings. In accordance with the protocol of 24 March 2020 on th......
  • Request a trial to view additional results
3 books & journal articles
  • Ryanair V an taoiseach [2020] - a case note
    • Ireland
    • Trinity College Law Review No. XXV-2022, January 2022
    • 1 Enero 2022
    ...Review for their invaluable feedback during the editing process. All errors and omissions are the author’s own. 1 Ryanair v An Taoiseach [2020] IEHC 461. 244 Trinity College Law Review [Vol XXV ‘advice’ was mandatory. Such mandatory travel restrictions would amount to legislation, which can......
  • Distancing From Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic
    • United Kingdom
    • Sage Federal Law Review No. 50-1, March 2022
    • 1 Marzo 2022
    ...Ibid [187], [191].72. Tom Hickman, ‘The Use and Misuse of Guidance During the UK’s Coronavirus Lockdown’(Working Paper,June 2020)3 .73. [2020] IEHC 461 (‘Ryanair ’)74. Ibid [45]-[48], [52] (Simons J)75. Ibid [38]-[39].76. [2020] VSC 722 (‘Loielo’).77. Ibid [43]-[49] (Ginnane J).McLeod 11 Su......
  • Annual Lecture 2022: Emergency Powers and the Executive: Reflections on the Past and a Vision for the Future - Remarks by Dr. David Kenny
    • Ireland
    • Hibernian Law Journal No. 21-2022, July 2022
    • 12 Julio 2022
    ...of this experience for me was that we had really effective oversight coming from other quarters. 1 2 Ryanair DAC v An Taoiseach & ors [2020] IEHC 461. Gemma O’Doherty & John Waters v The Minister for Health, Ireland, the Attorney General Ors [2021] IECA 133; Mary Carolan, ‘Seven-judge Supre......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT