High Court to hear country's first challenge to Covid Cert on grounds of discrimination

The restaurant claims that due to its refusal to comply with the measure, it has been constantly inspected by HSE compliance officers and was shut down for two days in September

The EU Digital Covid-19 Certificate is used as primary evidence of vaccination or immunity when going into a pub, restaurant, café or food court to access indoor hospitality. Photo: Leah Farrell / RollingNews.ie

A Galway restaurant is the first business in the country to challenge the vaccine pass in court on the grounds of discrimination.

More than €60,000 has been raised to support Italian restaurant Il Vicolo’s bid to legally challenge the use of the vaccine pass.

A Go Fund Me campaign has been set up to support the restaurant on Lower Dominick Street to bring a court action to challenge the ongoing implementation of the EU Digital Covid-19 Certificate on the grounds of discrimination and breach of privacy law.

The cert is used as primary evidence of vaccination or immunity when going into a pub, restaurant, café or food court to access indoor hospitality.

Following public health advice, the government last Friday agreed that the remaining aspects of the hospitality, entertainment and night-time economy sector could reopen only with the continued implementation of the Certificate or vaccine pass.

The Galway city restaurant claims that due to its refusal to comply with the measure, it has been constantly inspected by HSE compliance officers.

Four days ago, Il Vicolo began the online crowdfunding campaign to become the first business in Ireland to challenge the vaccine pass on the grounds of discrimination and breach of privacy law.

According to their fundraising page, those behind the campaign believe that the pass discriminates against people who may not be able to get a vaccine or who choose not to get a vaccine. The campaign has raised almost €70,000 in support of plans to mount a legal challenge.

They organisers said: “We believe that this divisive law is legally, morally, and ethically wrong. It discriminates against people who may not be able to get a vaccine or choose not to get a vaccine.

It raises serious privacy law (GDPR) concerns about the processing of private sensitive health data. This law is dividing friends and families and risks destroying the entire social fabric of Irish society.

The restaurant was served with the notice by a number of HSE compliance officers appointed under the Health Acts otherwise known as the Indoor Dining Legislation and has been inspected on several occasions due their stance and was shut down for two days in September following a HSE application for an emergency cessation order.

Oisin Collins, Senior Counsel for the restaurant, submitted in court that the EU Digital Covid Certificate Regulation provided for a third category of testing. This omission was a clear breach of the regulation itself, European privacy law, the Constitution, the European Charter of Fundamental Rights and the EU Convention on Human Rights, he submitted, adding that his position on the issue of discrimination was unanswerable.

Stephen Moran, BL for the HSE, said the Irish Government were effectively “at large” in relation to how they wished to deal with the issue of re-opening pubs and restaurants at a domestic level given the serious threat to public health and the rise in cases due to the Delta variant.

District Judge, John King, having heard detailed submissions on discrimination, decided that he did not have to rule on this issue as the Compliance Notice only went so far as to require records rather than prohibit people from entering.

They claim that due to their refusal to comply, they have been constantly inspected by HSE Compliance Officers.

'This is only the start of the push back'

“We were served with a Compliance Notice on August 20 and brought to the District Court on numerous occasions. Our business was even shut for two days in September following an application by the HSE for an emergency cessation order.

“On October 4, the District Judge ruled that he did not have to address the issue of discrimination as the Compliance Notice issued by the HSE was worded in a way that meant that we did not have to prevent people from entering.

“This is only the start of the push back against discriminatory laws. We received a letter from the HSE on October 14 that they intend to start inspecting our restaurant again as there has been further complaints of non-compliance.

“We intend to now challenge this discriminatory law to the Higher Court.” They say they have been “overwhelmed” with the support they have received from the public.

“We have since been overwhelmed with the massive level of support that we have received because of our refusal to comply with this discriminatory law.

“A heartfelt thank you to each and every one of you as it has been truly inspiring to know that our supporters are as committed and passionate as we are in this fight to challenge injustice and inequality”.

The HSE said it does not comment on individual cases.