Killian Flood BL

About this case:

• Citation:
  [2021] IECA 59
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

The appellants, Mr John Waters and Ms Gemma O’Doherty, chose “rhetoric over substance and fiction and distortion over fact” in their assertion that the restrictions were unconstitutional, the court said. The High Court judge was correct to find that the appellants did not have an arguable case in the proceedings.

Background

The appellants had brought judicial review proceedings seeking declarations of unconstitutionality in respect of the restrictions imposed by the Irish Government following the outbreak of Covid-19. When the appellants attempted to move their ex parte application for leave to bring the proceedings, they were directed to put the State respondents on notice, who were principally the Minister for Health and various members of the Oireachtas. Subsequently, the respondents opposed the leave application on the basis that the proceedings did not raise a stateable case in law or in fact. Further, it was noted by the respondents that the appellants had not followed correct procedures by seeking to strike down laws under judicial review proceedings.

At the hearing of the leave application in May 2020, the appellants engaged in sweeping diatribes regarding their case, variously alleging that coronavirus was no worse than a seasonal flu and that it could be cured with hydroxychloroquine zinc, and Vitamin C. It was claimed that the Government was fraudulently misleading the public into believing that a state of emergency existed. The applicants claimed that the government was fraudulently overstating the extent of the pandemic in Ireland.

It was claimed that facemasks caused oxygen deprivation, lung disease and cancer. Further, it was said that hospitals were putting seriously ill individuals on ventilators which was actually bringing about their deaths.

The trial judge, Mr Justice Charles Meenan, rejected all of the appellants’ conspiratorial submissions. First, he held that the appellants lacked standing to challenge amendments to the Mental Health Act 2001 and the Residential Tenancies Act 2004. Second, regarding the general claims of unconstitutionality, the court found that there was nothing in the emergency amendments to the Health Act 1947 which was repugnant to the Articles of the Constitution.

It was acknowledged that the rights of individuals had been affected by the pandemic, but it was held that the appellants had failed to put forward any facts which showed that the restrictions were disproportionate. As such, the trial judge dismissed the application for leave and the appellants appealed the decision.

Court of Appeal

Giving the judgment of the court, President George Birmingham said that the proceedings were “misconceived and entirely without merit”. Although “the arguments advance might have a certain appeal if addressed to a flag-waving assembly outside the Customs House”, they have “no purchase when address to a Court of Law”, the court said.

The fact that individuals disagreed with government policy was not a basis for the intervention of the courts and the appellants’ bald assertions did not suddenly become substantive simply because they were couched in extravagant language. The appellants’ arguments were for the political arena, the court said.

The court referred to the more remarkable aspects of the appellants’ submissions, including that the restrictions were designed to “purposely destroy the economy and introduce a globalised surveillance police state, planned under UN Agenda 2030”. The appellants had speculated that the Chinese Communist Party had a “tremendous grip” over the government and were the ones “making the decisions”.

The crux of the appellants’ case was presenting highly controversial statements as scientific facts, the court said. However, Mr Justice Birmingham said there was no “remotely stateable basis for challenging the impugned provisions”. The applicants’ “far-fetched assertions, no matter how extravagant the language, do not come anywhere close to meeting the G v. DPP threshold” to grant leave.

The court also rejected the appellants’ assertions that the Oireachtas was not entitled to legislate for the pandemic in March 2020 because there was not a government until the following June due to the general election. The court said that Article 28 mandated Government Ministers to hold office until their successors are appointed, with Article 18 providing that Senators would hold office until polling day. As such, there was no doubt that the Oireachtas was entitled to pass the emergency legislation.

Conclusion

Overall, the court held that the proceedings did not raise any serious legal issue and involved the appellants “claiming to know better than the government and the Oireachtas”. The appellants had “singularly failed to meet the threshold of establishing an arguable case”. As such, the appeal was dismissed.