Andrew McKeown BL

About this case:

• Citation:
  [2020] IEHC 461
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The High Court found that the government did not usurp the legislative power, and that it did not exceed its executive power.

Background

Ryanair sought, inter alia, the setting aside of government travel advice not to travel outside of Ireland other than for essential purposes.

Ryanair, represented by Martin Hayden SC and Eoin O’Shea BL, instructed by Arthur Cox, also challenged the guidelines for people returning to Ireland from countries not on the green list to self-isolate for 14 days. It argued that the advice published by the State was not mere travel advice and constituted restrictions on international travel.

Ryanair argued that, even if they are mere travel advice, the form by which they were published is unlawful, in that any public advice may only be given pursuant to statute. It claimed that restriction upon movements within the State may only be introduced by way of legislation, and that the Minister for Health is authorised by the Health Act 1947 s.31A (as amended) to make regulations for the preventing or slowing the spread of Covid-19. It was argued that insofar as there may previously have been an executive power to provide such advice, such has been ousted by the intervention of the legislature in this field. Ryanair claimed the existence of the relevant statutory powers displaced any inherent executive power.

Counsel cited Laurentiu v Minister for Justice, Equality and Law Reform [1999] 4 IR 26, where the Supreme Court held that the delegation was invalid in circumstances where the parent legislation did not properly prescribe principles and policies to control the exercise of the minister’s delegated power to make secondary legislation. That the legislature may legislate for areas previously controlled by the executive power was confirmed by the Supreme Court in Barlow v Minister for Agriculture [2017] 2 IR 440.

Ryanair also said that the travel advice is in breach of the Treaty on the Functioning of the European Union, and in particular a breach of the right of free movement, the right of establishment and the right to provide services.

Ryanair relied on a New Zealand judgment, Borrowdale v Director-General for Health [2020] NZHC 2090, where the government had represented that certain measures were legally enforceable some nine days before legislative basis for those measures was put in place. The High Court of New Zealand held that the government’s public statements had limited rights and freedoms.

Aer Lingus was named as a notice party. Francis Kieran BL, instructed by Mason Hayes and Curran LLP, for Aer Lingus, noted authorities where notice parties supported an application for judicial review. Counsel cited, in particular, the role of the relevant Minister in Kelly (Ted) v An Bord Pleanála [2014] IEHC 400; of the Law Society in Miley v Flood (No. 1) [2001] 2 IR 50; and of Eircom plc in EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] 2 IR 669.

Government

An Taoiseach, Ireland, and the Attorney General, represented by Dr Frank Callanan SC, Eoin McCullough SC, Dr Suzanne Kingston BL (now SC) and Dr David Fennelly BL strenuously contested Ryanir’s claims. Counsel submitted that the proceedings should be dismissed in limine, raising a number of preliminary objections on mootness, justiciability, and locus standi.

Counsel for the State objected that the written legal submissions filed on behalf of Aer Lingus sought a number of declarations which had not been sought by Ryanair in its statement of grounds.

The court admitted Aer Lingus as notice party, but said that it is not open to a notice party to seek to reinterpret the applicant’s statement of grounds and to attempt to introduce in its written legal submissions a different case than that of the applicant.

Noting that exclusive lawmaking power is vested in the Oireachtas by Article 15 of the Constitution, Mr Justice Garrett Simons, citing Cityview Press v An Chomhairle Oiliúna [1980] IR 381, said courts will, when called upon, “intervene to ensure that primary legislation, which authorises a subordinate or delegate to make secondary legislation thereunder, does not involve an improper abdication of the law making power of the Oireachtas”.

The judge said that the logical extension is that courts should also intervene when a government has, “by way of unequivocal statements, created the false impression that there is legislation in force which regulates certain activities when, in truth, there is no such legislation. Were this to happen, then the executive branch would be able to achieve a result which is similar in effect to legislation.”

In circumstances where members of the public will, inevitably, rely on official sources, such as government websites, “there is an obligation upon the government to ensure that it does not publish information” which creates the mistaken impression in this regard.

“The executive branch of government would not be entitled to short-circuit the statutory regime put in place by the legislative branch by creating the false impression that legally enforceable restrictions are in effect where this is not so,” he said.

Mr Justice Simons, referring by analogy to McCrystal v Minister for Children [2012] 2 IR 726, said that the threshold which would have to be met before the courts would intervene on this basis is a very high one. A “clear disregard” of constitutional norms would have to be established by an applicant seeking relief.

The judge found, applying an objective test, that a person reading the advice would not be left with the impression that the request was legally enforceable.

The judge said the government is “perfectly entitled” to refer to legal consequences provided for in law, such as loss of the jobseeker’s benefit “holiday” concession, provided for in the Social Welfare (Consolidated Claims, Payments and Control) (Amendment) (No. 9) (Absence from the State) Regulations 2020 (SI 242/2020). Ryanair had not sought to set aside this statutory instrument, and the judge said it was “very doubtful” that it would have locus standi to do so.

The court referred to Conor Casey, Max Weber Fellow at the European University in Florence, ‘Underexplored Corners: Inherent Executive Power in the Irish Constitutional Order’ (2017) 40(1) DULJ 1 which covers factors distinguishing between non-statutory executive-power-based rules and policy, and the promulgation of legislation, which is exclusively vested in the Oireachtas.

Conclusion

The court rejected Ryanair’s application, and said that the interpretation contented for by Ryanair and Aer Lingus would be “absurd” in the sense that that term is used in the Interpretation Act 2005 s.5, referring to Irish Life and Permanent Plc v Dunne [2016] 1 IR 92. He proposed a costs order against Ryanair for solicitor and two counsel.