Ryanair DAC v an Taoiseach

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 02 October 2020
• Neutral Citation: [2020] IEHC 461
• Court: High Court
• Docket Number: 2020 No. 547 J.R.
• Date: 02 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...