Challenge to objectives underlying emergency health legislation were not based on any plausible evidence

O'Donnell CJ (majority decision): Public Health Emergency - pandemic - Covid-19 - 'lockdown' - legislative measures - Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act, 2020 - Emergency Measures in the Public Interest (COVID-19) Act, 2020 - amendments to Health Act, 1947 - statutory instruments - restriction on movement - judicial review - application to quash legislation - constitutionality - refusal of leave to seek judicial review - appeal - whether legislation repugnant to the Constitution - whether legislation validly enacted - whether measures disproportionate - lack of sufficient facts on affidavit - enactment of legislation under 'caretaker government' - allegation of objective bias - onus of proof - threshold of arguability - whether evidence required to challenge legislation - burden of proof - presumption of constitutionality - shifting burden of proof - ban on public protest - arguments put forward by member of court not advanced by applicants - novelty of argument

"The High Court judge came to the conclusion that these proceedings ought to have been commenced by plenary summons. I am not sure this was correct in this case since there was a challenge not just to primary legislation but also to Statutory Instruments and claims of invalidity of such instruments have proceeded by way of judicial review – see e.g. State (Lynch) v Cooney [1982] I.R. 337. However, on any view, the trial judge was correct to consider that this issue was not, in any event, a fatal one."

"There is no absolute or general rule that expert evidence or evidence in relation to policy must be adduced in support of a challenge to the constitutional validity of legislation, so that any claim which does not have such evidence or evidence in relation to policy must be dismissed and any application for leave to seek judicial review which is not grounded on such evidence must be refused."

"I have no doubt that, insomuch as thisglobal challengeto the basis for the Acts and Regulations was to be advanced as a ground upon which the Court should consider that the legislation enacted by the Oireachtas was invalid having regard to the Constitution, then at a minimum, it required some plausible foundation in evidence, and none was provided. The claim was not simply that the legislation constituted a disproportionate interference with constitutional rights, it was that it was unconstitutional because it was the product of a conspiracy."

"I should add, for the sake of completeness, that in their written submissions to this Court, the applicants sought to include a range of information supporting their contention that, among other things, Covid-19 was no more than a seasonal flu, and that the State’s measures were illogical. This information was not evidence in any sense, and the attempt to put it before this Court in the guise of legal submissions only highlighted the lack of any evidence before the High Court."

"Our jurisprudence would be poorer, and our decisions less firmly based, if judges were expected to approach each case as if they knew nothing of the law. ... I consider that the length to which it is necessary to go to reach the position set out in the judgment of Hogan J. is well beyond any permissible adjustment of the case being advanced by the applicants and has only the most tenuous connection to it."

Hogan J (dissenting): Public health challenge - medical emergency - measure of legislative and administrative response against requirements of the Constitution - grounds for litigation - conduct of litigation - state of the law at time of application for leave - April and May 2020 - changing nature of legislation and relevant regulations - test for grant of leave - whether proceedings would have been unsustainable if commenced by way of plenary summons - presumption of constitutionality - scope of judicial review - power to declare an emergency - Article 28.3.3 of the Constitution - no state of war or armed conflict - whether emergency could be declared in other circumstances - reference to 'public emergency' in Article 24 of Constitution - role of evidence in challenge to proportionality - freedom of assembly - restrictions on personal liberty - inviolability of the dwelling - restriction on home visits.

"They appear to have allowed themselves to be deluded by byzantine suspicions regarding the actions and motives of others. The blunt and unfortunate reality is that thousands died – often alone – in our hospitals and nursing homes directly as a result of Covid-19 and that for many who were so infected and who nonetheless survived, the road to recovery was debilitating, long and complicated."

"While the applicants were fully entitled to represent themselves, I mean them no disrespect when I say that this case called for the presence of a specialist legal team. It is accordingly particularly unfortunate that they turned down the offer of pro bono representation which the Supreme Court Office offered to arrange."

"To my mind it is, ultimately, far from clear whether peaceful protest was allowed under S.I. No. 206 of 2020 and, in particular, under the provisions of Article 6. The whole tenor of Article 6 and the context in which the Minister made the regulations leaves, in my view, a real doubt as to whether peaceful protest was allowed. And that, I suggest, is sufficient in itself to raise a significant constitutional issue in its own right."

"The rights of peaceable assembly and the right to express freely one’s convictions and opinions are part of the life blood of any free and democratic society. It is irrelevant in this context that persons are free to express their views in other ways and by other means. Experience both in this country and elsewhere has shown that peaceful public protests are among the most effective means of communicating grievances and securing political change."

"While this ground is perhaps somewhat weaker than in the case of restrictions on outdoor movements, nevertheless for all the reasons I have just mentioned I consider that the applicants should be given leave to seek a declaration that the restrictions on home visits contained in Article 4(2) of the 2020 Regulations are unconstitutional and ultra vires with effect from 1st July 2020."