About this case:

• Citation:
  [2022] NIQB 13
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Adrian Colton

This decision was one of a series surrounding recent judicial review applications regarding Covid-19 regulations.

Background

The applicant, Risteard O’Murchu, was 52, had not availed of any Covid-19 vaccines and did not intend to do so. He sought to challenge regulations made by the Department of Health under section 25Q (Emergency Procedure of the Public Health Act) (Northern Ireland) 1967.

These regulations, The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021 (Amendment No: 19) Regulations (Northern Ireland) 2021, introduced provisions requiring Covid-Status certification at high-risk settings.

These settings could only admit “qualifying persons” who could prove evidence of vaccination, negative tests, natural immunity, or medical exception, pursuant to Regulation 16C.

The applicant’s case

The applicant asserted that the introduction of these regulations was procedurally unfair, they had failed to carry out a public consultation and a societal and economic impact assessment; that the decision was irrational in the Wednesbury sense; that there was a breach of statutory duty/requirement relying on section 75 of the Northern Ireland Act 1998 and a breach of section 6 of the Human Rights Act 1998.

This included an argument based on a breach of Article 14 of the ECHR in conjunction with Article 8 ECHR alleging unlawful discrimination.

The court accepted that the restrictions arguably engaged the applicant’s Article 8 rights, as they restricted his ability to attend certain social venues and, in the event that he did attend such venues, he would be required to disclose aspects of his medical status.

The court also noted, however, that many bodies, including the Health Department, the Chief Medical Officer, the Chief Scientific Advisor, the Executive, and The Scientific Advisory Group for Emergencies (SAGE) formed the view that such further interventions were needed. As a result, the Covid Status Certification Scheme was proposed.

SAGE claimed that the Covid-19 Certification Scheme would:

• Reduce virus transmission, primarily by reducing the likelihood of infectious individuals entering high risk settings.

• Reduce the risk of serious illness and death and in doing so alleviate current and future pressure on the health care system.

• Increase the likelihood that higher risk settings can continue to operate as an alternative to closure or more restrictive measure.

The applicant was highly critical of this evidence, arguing that there was either no, or insufficient, scientific data to justify the restrictions.

He pointed out that Covid Certification only “potentially” contributes to decreasing the transmission risk from potentially infectious persons. He submitted that potential reduction was not adequate justification for what he described as such an intrusive measure.

He argued that “recent evidence” suggesting vaccination reduced transmission of the Delta variant was only based on a publication which had not been peer reviewed or evaluated and “should not be used to guide clinical practice”.

He further criticised claims that the mandatory Covid-19 Certificates led to an increase in vaccine uptake. He hinted that this was the real reason behind the decision to introduce the regulations, describing it as a de facto mandatory vaccination policy.

Consideration of the issues

The legality test requires that measures interfering with a qualified right such as provided for by Article 8 must have a basis in domestic law and be compatible with the rule of law.

The preamble to the act noted that the Department of Health was of the opinion that, by reason of urgency, it was necessary to make these regulations.

The court accepted the emergency and developing context in which the regulations were introduced, and considered that there was no enforceable legitimate expectation of consultation under the common law and that fairness did not require such a consultation.

In the court’s view, protecting the health of the population and preserving the capacity of the health care system to care for patients represented plainly a legitimate policy aim. The court rejected the suggestion that, in reality, this was an attempt to introduce a de facto mandatory vaccination scheme. In the court’s view this was simply not arguable.

The final consideration of the court related to the issues of proportionality and necessity. The applicant’s central submission was that there was no, or insufficient, scientific justification for the introduction of the measures. In the court’s view this submission was misconceived.

Given the nature of the emergency, it was unsurprising that there was a lack of conclusive, peer reviewed data on this issue at this stage. What was unarguable was “the fact that vaccination reduces the risk of becoming infected with the virus”.

It follows that those who are less likely to be infected are less likely to transmit the infection. Those who attended venues subject to the certification scheme could do so in the knowledge that they were mixing with persons who were less likely to be infected with the virus.

The court was also cognisant of the fact that the decision was taken in the context of a deteriorating situation in local hospitals, the measures had the support of the Chief Medical Officer and the Chief Scientific Advisor, and was endorsed by the Northern Ireland Executive which is made up of five different political parties.

Conclusion

Ultimately, the court accepted that there had been interference with the applicant’s Article 8 rights, however, it considered that this interference was limited. It was open to the applicant to rely on a negative test in order to attend events. These tests were free and easily available. The applicant’s description of this as an “inconvenience” may have been true, however this did not overshadow the legitimate and overwhelming aim of protecting public health.

The court considered that the regulations at issue were in accordance with the law and served a legitimate aim and were proportionate and justifiable.

Leave to apply for judicial review was therefore rejected, as the case was unarguable and had no realistic prospect of success.