Seven-judge Supreme Court to hear appeal by Gemma O’Doherty and John Waters

A significant appeal by Gemma O’Doherty and John Waters over the refusal to allow them challenge the constitutionality of emergency Covid-19 laws opens this week before the Supreme Court.

A seven-judge court, presided over by the Chief Justice, Mr Justice Donal O’Donnell, will hear the appeal on Tuesday. A seven-judge court is convened when an appeal raises significant constitutional matters.

Ms O’Doherty and Mr Waters are appealing the Court of Appeal’s (CoA) upholding of the High Court’s May 2020 refusal to grant them leave for a judicial review of the Covid-19 measures.

They represented themselves in both courts.

Although the Supreme Court encouraged them to avail of a scheme under which they could get legal representation for the appeal, they have continued to represent themselves in pre-appeal case management hearings.

The appeal centres on whether the refusal of leave was justified in the context of a challenge to legislation that impacted constitutional rights such as liberty, freedom of association and the inviolability of the dwelling.

If the Supreme Court allows the appeal, that could clear the way for the first substantive consideration by the courts of the constitutionality of Covid-19 measures.

Two years ago, Ms O’Doherty and Mr Waters sought leave to bring judicial review proceedings to challenge the constitutionality of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020, the Emergency Measures in the Public Interest (Covid-19) Act 2020 and the Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) Regulations 2020.

The three Acts provided the basis for the lockdowns imposed due to the pandemic.

The applicants claimed Covid-19 was not a dangerous disease and the legislative measures were a grossly disproportionate response to it. Their claims included the measures were introduced based on “fraudulent science” and they drew parallels with Nazi Germany.

The High Court found they had made out no arguable case for judicial review or provided any factual or evidential basis for their assertions.

In dismissing their appeal over the High Court’s refusal of leave, the CoA said they had “singularly failed to raise issues of substance”.

Their application for a further appeal to the Supreme Court was resisted by the various State respondents.

Last November, a panel of Supreme Court judges said it would hear an appeal. The legislative measures interfered significantly with constitutional rights and, at a level of principle, the matters were of general public importance, the panel said.

The appeal will examine the burden of proof required for leave applications where an applicant was seeking to challenge the proportionality of an interference with constitutional rights.

In particular, the court will decide whether the clear and significant impact on constitutional rights required leave to be granted.

The appellants were encouraged to avail of the scheme allowing for legal representation for parties in Supreme Court appeals. The court said the case was complex and should be argued by solicitor and counsel.

Given the history of the case, the panel stressed “the proper administration of justice requires that proceedings be conducted with restraint, both in language and behaviour”.