Court reserves decision in Gemma O'Doherty and John Waters challenge against Covid-19 laws
A legal challenge by John Waters and Gemma O'Doherty against laws introduced by the State due to the Covid-19 pandemic is doomed to failure, lawyers for the State have argued before the High Court.
The challenge by the two journalists was also described by lawyers representing the Houses of the Oireachtais as "a full frontal attack" on articles of the Constitution concerning the separation of powers.
In judicial review proceedings against the State and the Minister for Health Ms O'Doherty and Mr Waters seek to have various pieces of recently enacted legislation, which they contend are unconstitutional and flawed, quashed by a judge of the High Court.
They also want the court to make a declaration that the legislation is unconstitutional.
The State, and lawyers acting for the Dáil, Seanad and the Ceann Comhairle who are notice parties to the proceedings, oppose the action.
That preliminary application came before Mr Justice Charles Meenan, who following the conclusion of submissions from the parties this afternoon, reserved his decision.
The Judge, who did not say when the court would be able to deliver its decision, said he would give the matter his "complete priority".
He said that in line with what has become the normal practice during the pandemic, the judgment would be delivered electronically and would be emailed to the parties.
On the second day of the hearing Patrick McCann SC, appearing with Gerard Meehan Bl, for the State told the court the application was "doomed" on several grounds.
He said the action was procedurally flawed. It should have been brought by way of plenary hearing, which would involve the hearing of oral evidence before a court, and not by way of judicial review, counsel said.
Judicial review, he said, was something used to ensure lower courts and public administrative bodies have carried out their lawful functions and not a way to challenge a decision of the legislature or the Oireachtais, counsel added.
There was a failure to put expert evidence supporting their challenge before the court, counsel argued.
Counsel added the applications lacked the legal standing to bring the case to a full hearing, as they had not set out how the regulations challenged personally affects them.
Francis Kieran Bl for the notice parties described the challenge as "a full frontal attack" on articles of the Constitution associated with the separation of powers.
Counsel said that the courts should not interfere with decisions made by the Houses of the Oireachtas in relation to the laws brought about by Covid-19, and that leave should not be granted as the matters raised cannot be decided on by a court of law.
Counsel said the caretaker government was entitled to bring forward the laws, that they were unanimously passed by agreement of the parties and technical groups of the incoming Dail.
Caretaker government
The Dáil was perfectly entitled to have a reduced number of TD attend and vote on the laws, counsel said.
The numbers of TDs present, which due to Covid-19 was reduced by agreement to over 40, in the Dáil for the vote on the new laws exceeded the required quorum of 20 elected members, counsel said.
There was no issue in relation to the outgoing senate voting on the laws.
Counsel said while the Dáil is dissolved on the calling of an election, the Seanad remains in place until the day before a new one is elected and is entitled to vote on any legislation that comes before it.
In their submissions to the court the applicants had raised questions about the manner how the new laws were passed by the legislature, and in particular by an outgoing Seanad, that the laws were proposed by a caretaker government.
They also rejected the State’s claim that they lacked legal standing to bring the action, as like every other citizen they said they are affected by the Civid 19 regulations.
Mr Waters argued the laws were so draconian that they amounted to an exceptional circumstance which would allow the court interfere with a decision of the legislature.
He added that after considering all the options he and Ms O'Doherty believed the best way to bring such an important action was by way of judicial review.
'Like a coup'
Ms O'Doherty, who said that the action was being brought "on behalf of the people of Ireland", described the situation as like living under "martial law" and described the actions of the government as something "like a coup".
During the hearing the Judge told asked her to cease making what he described as speeches that were not assisting the court in the decision it had to make.
Ms O'Doherty denied making speeches and said she had a right to be heard on what was a very important issue.
In their action Ms O'Doherty and Mr Waters have challenged legislation including the 2020 Health Preservation and Protection and Other Emergency Measures in the Public Interest Act, the 2020 Emergency Measures in the Public Interest Act Covid-19 Act, The 1947 Health Act (Affected Areas) Order.
Their proceedings are also aimed at striking down temporary restriction regulations brought due to Covid-19 under the 1947 Health Act.
They claim the laws, and the manner in which they were enacted, are repugnant to several articles of the Constitution including rights to travel, bodily integrity and the family.
The laws they claim amount to a suspension of constitutional rights.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
