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Gemma O'Doherty and John Waters' challenge of coronavirus laws 'doomed' to fail, High Court hears

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Gemma O’Doherty and John Waters arriving at the High Court in Dublin.
Photo by Steve Humphreys
6th May 2020

Gemma O’Doherty and John Waters arriving at the High Court in Dublin. Photo by Steve Humphreys 6th May 2020

Gemma O’Doherty and John Waters arriving at the High Court in Dublin. Photo by Steve Humphreys 6th May 2020

A challenge to laws introduced by the State due to the Covid-19 pandemic is doomed to failure, the High Court has heard.

The challenge by John Waters and Gemma O’Doherty was also described as "a full frontal attack" on articles of the Constitution concerning the separation of powers.

In judicial review proceedings against the State and the Minister for Health they seek the quashing of various pieces of recently enacted legislation which they say are unconstitutional and flawed.

They also want the court to make a declaration that the legislation challenged is unconstitutional.

Close

Gemma O’Doherty and John Waters arriving at the High Court in Dublin.
Photo by Steve Humphreys
6th May 2020

Gemma O’Doherty and John Waters arriving at the High Court in Dublin. Photo by Steve Humphreys 6th May 2020

Gemma O’Doherty and John Waters arriving at the High Court in Dublin. Photo by Steve Humphreys 6th May 2020

Lawyers for State respondents, as well as lawyers for the Dail, Seanad and the Ceann Comhairle, who are notice parties, oppose the action.

That preliminary application came before Mr Justice Charles Meenan, who following the conclusion of submissions on Wednesday reserved his decision.

The Judge, who did not say when the court would be able to deliver its decision, said he would give the matter his "complete priority."

He said that in line with what has become the normal practice during the pandemic the judgment would be delivered electronically.

On the second day of the hearing Patrick McCann SC, for the State, told the court the application was "doomed" on several grounds.

It was procedurally flawed and should have been brought by way of plenary hearing which would involve the hearing of oral evidence, and not by way of judicial review, counsel said.

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Judicial review was something used to ensure lower courts and public administrative bodies have carried out their lawful functions and not a way to challenge a decision of the legislature or the Oireachtais, counsel said.

There was a failure to put expert evidence supporting their challenge before the court, counsel argued.

Counsel added the applicants lacked the legal standing to bring the case to a full hearing, as they had not set out how the regulations challenged personally affects them.

Francis Kieran Bl, for the Oireachtas notice parties, said the challenge was "a full frontal attack" on articles on the Constitution and the separation of powers.

Counsel said that the courts should not interfere with decisions made by the houses of the Oireachtas in relation to the laws brought about by Covid-19, and that leave should not be granted as the matters raised cannot be decided on by a court of law.

Counsel said that the caretaker government was entitled to bring forward the laws, that they were unanimously passed by agreement of the parties and technical groups of the incoming Dail.

The Dail was perfectly entitled to have a reduced number of TD attend and vote on the laws. The numbers of TDs present, which due to Covid-19 was reduced by agreement to over 40 and the vote in the Dail exceeded the required quorum of 20, counsel said.

There was no issue in relation to the outgoing Seanad voting on the laws.

Counsel said while the Dail is dissolved on the calling of an election, the Seanad remains in place until the day before a new one is elected and is entitled to vote on legislation that comes before it.

In their submissions, Mr Waters and Ms O’Doherty had raised questions about the manner how the new laws were passed by the legislature, and in particular by an outgoing Seanad, and that it was proposed by a caretaker government.

Mr Waters argued that the laws were so draconian that they amounted to an exceptional circumstance which would allow the court interfere with a decision of the legislature.

Ms O'Doherty, who said that the action was being brought "on behalf of the people of Ireland," described the situation as like living under "martial law".

She described the actions of the government as something "like a coup."

During the hearing, the Judge asked her to cease making what he described as speeches that were not assisting the court in the decision it had to make.

Ms O'Doherty denied making speeches and said she had a right to be heard on what was a very important issue.


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