‘Empty rhetoric no substitute for facts’ – why Covid-19 legal challenge failed
THE challenge by John Waters and Gemma O’Doherty to Covid-19 laws attracted considerable attention, as much for the disregard their supporters showed for physical distancing guidelines as the arguments made in court.
But the duo’s case against the Health Minister, Ireland and the Attorney General has fallen at the first hurdle after they were refused leave to bring a judicial review.
The decision means they could be landed with a bill for the State’s legal costs, estimated to be around €50,000.
They were seeking to have the emergency laws declared null and void by the High Court on the grounds they were repugnant to the Constitution and not validly enacted.
A blistering judgment by Mr Justice Charles Meenan rejected their opinions as “unsubstantiated” and “empty rhetoric” and found historic parallels with Nazi Germany to be “both absurd and offensive”.
But there are several reasons why their case failed.
They didn’t use the correct court procedure
Mr Waters and Ms O’Doherty opted to mount their challenge by way of judicial review, a mechanism by which the High Court can review decisions made by lower courts and other administrative bodies.
The State argued they used the incorrect procedure and should have issued a plenary summons, a point the judge agreed with. This finding on its own though was not fatal to their case.
They didn’t make an arguable case
Mr Justice Meenan said that if they had established they had an arguable case, he could have ordered that the challenge could continue as if it had been initiated correctly.
Unfortunately for the duo, he found they had not made an arguable case.
The judge said the legislation undoubtedly restricted people’s constitutional rights.
However, he said the rights involved were “not absolute”.
For an arguable case to be made, Mr Waters and Ms O’Doherty needed to put on affidavit facts which established that limitations on movement and other restrictions were disproportionate.
“No such facts were deposed,” he said.
They lacked standing to bring the case
Litigants must show they have a sufficient connection to the law they are challenging.
While the judge found they did have standing to challenge restrictions on movement, which affect everyone, he made contrary findings in other parts of their challenge.
He said they did not have standing to challenge Mental Health Act amendments. The judge said this act was “clearly directed towards persons who are in a defined category”, but the applicants did not argue they were in this category.
Similarly, he found they lacked standing to challenge amendments to the Residential Tenancies Act as they did not claim to be landowners, landlords or tenants.
They provided no supportive expert opinion
Mr Waters and Ms O’Doherty questioned the accuracy of infection and death figures. They also claimed the science involved was “fraudulent”.
The judge said, other than their views, the duo “identified no supportive expert opinion”.
In contrast, an affidavit filed by a Department of Health official set out in detail the background and reasons for the emergency legislation.
They lacked necessary expertise
Mr Justice Meenan said the applicants had no medical or scientific qualifications or expertise. Instead, he said they “relied on their own unsubstantiated views, gave speeches, engaged in empty rhetoric and sought to draw a historic parallel with Nazi Germany – a parallel which is both absurd and offensive”. He added: “Unsubstantiated opinions, speeches, empty rhetoric and bogus historical parallel are not a substitute for facts.”
The court could not deal with some of their claims
Mr Waters and Ms O’Doherty claimed the passage of the legislation through the Oireachtas was unconstitutional.
They questioned the legal standing of the Government given three ministers were no longer members of the Dáil.
They also questioned the Ceann Comhairle’s decision to seek to limit the number of TDs present to debate the legislation due to social distancing requirements.
Lawyers for the Oireachtas argued the issues raised could not be subject to a court of law due to the separation of powers. The judge agreed.
He also said the Constitution made clear that a Government remains in office until successors have been appointed.
The fact a number of ministers were no longer members of the Dáil did not affect this.