About this case:

• Citation:
  [2024] IEHC 50
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Aileen Donnelly

Delivering judgment for the Supreme Court, Ms Justice Aileen Donnelly determined inter alia that the Oireachtas had conferred on the minister for health a power of normative rulemaking that was within its power to do so and that the position of the Designated Appeals Officer in reviewing mandatory quarantine confinement did not fit within the criteria for the administration of justice.

Background

During the Covid-19 pandemic, quarantine provisions were introduced by the Health (Amendment) Act 2021 to reduce the spread of Covid-19 from other jurisdictions. 

On 22 March 2021, the minister for health designated inter alia the United Arab Emirates (UAE) as a travel area which presented a high risk of importation of Covid-19 pursuant to s.38E(1) of the Health Act 1947 (as amended). This action, which was published online on the government’s website, led to the provision of mandatory quarantine in facilities for those arriving from designated states.

Two days after this designation was made, the appellants travelled on holiday to the UAE. When they returned, they refused to enter mandatory quarantine and were arrested and charged with an offence pursuant to the 1947 Act. After a night in prison, they were released on bail and subsequently completed the quarantine.

The appellants then applied to the Designated Appeals Officer for a review of their quarantine confinement in accordance with ss.38B(16) and (17) of the 1947 Act, which application was refused. 

The High Court

Before the High Court, the appellants applied for prohibition of their trials and for orders of certiorari and declaratory reliefs in respect of those provisions of the 1947 Act on the basis that it was an unconstitutional delegation of the legislative power of the Oireachtas and an unconstitutional delegation of judicial power to the administrative reviewer, contrary to Articles 15.2.1 and 34 of the Constitution.

The High Court found that not all delegated legislation required to be laid before the Oireachtas and control by the Oireachtas was retained by the sunset clause contained in s.9 of the 2021 Act, and further found that the function of the appeals officer did not fall within Article 34 as the legal basis for the appellants’ detention came from the legislation and not the minister’s designation of the UAE.

The Supreme Court

The Supreme Court granted leave to the appellants to bring a leapfrog appeal from the High Court in respect of four issues, which were reduced to two issues during the appeal:

1. Whether the designation of the UAE was an impermissible exercise of the exclusive law-making power of the Oireachtas under Article 15.2.1º of the Constitution, and
2. If so, whether the power of review of the subsequent quarantine by a Designated Appeals Officer was an impermissible exercise of the judicial function, contrary to Article 34.1º of the Constitution?

Ms Justice Donnelly firstly considered Article 15.2.1º of the Constitution, summarising a number of propositions in relation to the abdication of legislative power arising from Conway v An Bord Pleanála [2024] IESC 34 and NECI v Labour Court [2021] 2 ILRM 1:

1. The only test for a challenge to subsidiary legislation on the basis of vires, or authority to promulgate the measure, is whether there has been an abdication by the Oireachtas of its exclusive law-making authority under Article 15.2.1º.

2. What requires examination is whether what the delegate is to do is sufficiently bounded by the terms of the parent legislation.

3. A choice as to the subject matter of what is delegated may lawfully, within those boundaries and subject to that guidance, be left to the delegate.

4. Where the choice is one of fundamental policy, as opposed to a limited and guided choice based on the overall text of the legislation delegating the power to make subsidiary legislation, then an abdication of the exclusive lawmaking power is manifest.

5.  The fact that the Oireachtas has retained control, either in the form of requiring a vote to confirm or to nullify subsidiary legislation, may be important but is not essential.

6. Articles 5 and 6 of the Constitution are not to be brought into the equation, being addressed to the fundamental structures of the Constitution, rather than representing components of the validity of delegation of the legislative function.

Having regard to those principles, Supreme Court found that the appellants’ arguments appeared “wafer thin”.

Ms Justice Donnelly pointed out that the argument that s.38(1) ought to be read as requiring a designation to have been made by regulation in light of the greater publication requirements and legislative scrutiny accompanying regulations, was countered by s.38E(1) which provided the direct opposite in that the minister could “designate in writing any state…”

Having regard to the primary test of whether there was an abdication of the constitutional role of the Oireachtas, Ms Justice Donnelly found it “abundantly clear” that there had not been any such abdication by leaving the choice of designation to the minister.

In particular, the court highlighted:

Having regard to the appellants’ arguments to the effect that the power of designation was too broad to be assigned to a minister, particularly in the context of a criminal offence, and could only be saved by legislative scrutiny, the Supreme Court concluded that it was demonstrably clear that this type of designation was wholly suited to be carried out at ministerial level and did not require any specific parliamentary oversight in circumstances where the criminal scheme had been established clearly by statute and the scheme gave a choice of designation based on the considerations set out in the 2021 Act.

Ms Justice Donnelly added that it was also notable that the entire scheme had a limit of three months unless renewed and that the exercise of the minister’s powers was subject to judicial review if there were issues with the designation of a particular state, an issue which had not been raised by the appellants.

Rejecting the first ground of appeal, the court moved to consider the appellants’ argument that the function of “review” conferred on the appeals officer was a judicial function which could only be exercised by judges in courts established by law.

Noting that the lynchpin of their argument was that the impugned decision concerned a loss of liberty, the Supreme Court highlighted that decisions on loss of liberty were not located solely within the administration of justice and that the loss of liberty was consequent on the requirement set out in the legislative provisions. Accordingly, the court considered that the appeals officer was deciding on “release” rather than on loss of liberty.

Ms Justice Donnelly set out examples of lawful deprivation on freedom of movement otherwise than by judicial function such as cases of mental illness and infectious disease, noting that the legislation introduced in response to Covid-19 while unprecedented in scope was by no means unusual in providing for mandatory quarantine for infectious diseases having regard to the 1947 Act.

The court disagreed with the appellants’ analogy of their position with respect to inter alia bail and remission, finding this to be “entirely unlike” the role of the appeals officer, applying Zalewski v Workplace Relations Commission [2021] IESC 24, [2022] 1 IR 421 and McDonald v Bord na gCon [1965] IR 217 in respect of the test for identifying the administration of justice in finding that s.38B(17) was not contrary to Article 34 of the Constitution.

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

Mulreaney & Anor v. The Director of Public Prosecutions & Ors [2024] IEHC 50