The Supreme Court has dismissed a challenge by Gemma O’Doherty and John Waters to earlier decisions not to allow a judicial review of the legislation introducing restrictions aimed at dealing with COVID-19.

Six of the judges agreed on the issue, but there was a dissenting judgment from Mr Justice Gerard Hogan.

The High Court had refused O’Doherty and Waters leave to bring a judicial review of the two key piece of legislation underpinning the restrictions, ruling that they had not provided evidence or facts to support their argument that the legislation was disproportionate to the threat posed by the virus.

The Court of Appeal subsequently dismissed an appeal against the High Court decision.

Expert evidence

The applicants were, however, granted leave to appeal to the Supreme Court on one specific ground, which centred on whether, and what type of evidence, they needed to supply that the measures were disproportionate.

In the judgment, the Chief Justice Donal O’Donnell wrote that expert evidence was not essential to challenge the constitutional validity of any legislative provision, nor was such evidence essential when a challenge was based on a claim of lack of proportionality.

“There is, however, no principle in Irish law that the onus of justifying any legislative measure lies upon a State respondent, or shifts to that respondent, on proof of interference with or impact upon rights,” he continued.

The Chief Justice said that, if a claim that measures were excessive or disproportionate involved a challenge to the aim of the legislation – in this case, limiting the impact of COVID-19 – “then some plausible evidence would be required to establish that there was an arguable case that this was so”.

High Court ‘correct’

The High Court challenge, he said, did not accept the evidence offered in support of the measures, and argue for its less restrictive means of achieving the objective.

“Rather it sought to challenge and deny the assessment of the situation, and the necessity for the measures. Such a claim required some plausible evidence to be considered sufficiently arguable to satisfy the threshold for the grant of leave to seek judicial review,” the Chief Justice said.

“No such evidence was adduced, and accordingly the High Court was correct to refuse leave to seek judicial review,” the Supreme Court concluded.

‘Closest judicial scrutiny’

In his dissenting judgment, Mr Justice Gerard Hogan said the “unusual and far-reaching” nature of the measures introduced called for “the closest judicial scrutiny”.

Referring to the decision of the two applicants to represent themselves, he said: “The absence of a specialist legal team who might have advanced the challenge to these measures has considerably hindered the fair and proper presentation of this hugely important case.”

The judge said that, given the novelty and gravity of the public-health emergency, no serious constitutional issue arose in respect of short-term restrictions on personal liberty to travel and to move around.

He argued, however, that the applicants had raised “arguable grounds” for the constitutionality of the measures restricting outdoor events and visitors to homes, as it had become clear by the time the Court of Appeal delivered its judgment that such restrictions were no longer short-term in character.