‘Bermuda Triangle stuff ’ – O’Doherty and Waters lose appeal on Covid laws
JOHN WATERS and Gemma O’Doherty’s appeal, against a refusal to permit them to challenge the constitutionality of laws introduced in response to the Covid-19 pandemic, has been dismissed.
They had appealed the High Court’s refusal to permit the two to bring their challenge, as well as its award of costs against them.
In their judicial review proceedings against the State and the Minister for Health, with the Dáil, Seanad and Ceann Comhairle as notice parties, the appellants sought to have various legislative measures declared unconstitutional.
In its decision yesterday, the three-judge Court of Appeal – comprising Mr Justice George Birmingham, Ms Justice John Edwards and Ms Justice Caroline Costello – dismissed the appeal.
Mr Justice Birmingham said that the approach taken by the High Court “was the correct one”. The applicants, he said, claimed “to know better than the Government and the Oireachtas”, and they dismissed international advice concerning the pandemic.
The judge said that their proceedings failed to raise issues of substance. They had “chosen rhetoric over substance, and fiction and distortion over fact” and failed to meet the threshold of establishing an arguable case.
The decision was delivered electronically and none of the parties were present in the Four Courts complex.
Last year, Ms O’Doherty and Mr Waters sought to challenge legislation that was brought in to tackle Covid-19.
They claimed the laws, and how they were enacted, are repugnant to several articles of the Constitution.
Last May, Mr Justice Charles Meenan refused to grant them leave and said their claims were not arguable.
They had not provided any expert evidence or facts to support their view that the laws were disproportionate.
The manner in which the Houses of the Oireachtas dealt with the laws, introduced by a caretaker government and voted on by an incoming Dáil and outgoing Seanad, was not something a court could interfere with, he said.
In their submissions to the appeal court, Ms O’Doherty and Mr Waters argued that the High Court’s decision, which refused them permission to bring their challenge against the laws, was wrong.
Francis Kieran, for the notice parties, said the appeal should be dismissed as their claim was non-judiciable, and nothing had been put before the court that would allow them “climb the high legal walls” required for their arguments to succeed.
Counsel added that some of the applicants’ submissions were “Bermuda Triangle stuff”.