Supreme Court: Gemma O’Doherty granted limited leave to appeal in challenge to 2020 lockdown
The Supreme Court has allowed Gemma O’Doherty and John Waters leave to bring an appeal in their challenge to the emergency lockdown measures from March 2020. However, the court only decided to hear a very narrow point of law and will not hear an appeal on the merits of the claim.
The court held that the applicants had raised a matter of general public importance regarding the refusal of leave by the High Court in their judicial review proceedings. Specifically, the court will consider whether the refusal of leave was justified in a context where there was a challenge to legislation that impacted constitutional rights such as liberty, freedom of association and the inviolability of the dwelling.
In May 2020, the High Court refused the applicants leave to bring judicial review proceedings to challenge the constitutionality of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020, the Emergency Measures in the Public Interest (Covid-19) Act 2020 and the Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) Regulations 2020. Each of these pieces of legislation provided the basis for the lockdowns imposed on the nation due to the Covid-19 pandemic.
The applicants based their case on the assertions that Covid-19 was not a dangerous disease and that the legislative enactments were a grossly disproportionate response to the disease. The applicants also made statements that the measures were introduced based on “fraudulent science” and drew parallels with Nazi Germany.
The High Court held that the applicants had not demonstrated that their case was arguable and therefore refused leave to bring the proceedings. The court held that the applicants had provided no factual or evidential basis for their assertions that infections and deaths were overstated.
The matter was appealed to the Court of Appeal and the appeal was rejected in March 2021. The court described the appeal as controversial and tendentious, and which did not raise a serious legal issue to be tried. The court said that the applicants had “singularly failed to raise issues of substance”.
Subsequently, the applicants applied to the Supreme Court for leave to appeal the decision.
The court considered the applicants’ contentions that the measures were “akin to martial law” and that other, less onerous measures could have been adopted. Further, the court noted the wide range of rights the applicants said were affected by the measures, including the right to privacy and family life, the right to public assembly, the right to practice religion in public, the right to freedom of movement and travel and the right of access to the courts.
The State respondents argued that the applicants should not be granted leave to appeal because they had failed to “particularise the legal or factual grounds on which they contend the Measures are unlawful.” The respondents noted that the assertion that “there was no Covid-19 pandemic” was found by both the High Court and Court of Appeal to be unsupported by evidence. As such, it was said that the applicants failed to raise an issue of general public importance.
Delivering its determination in the matter, the Supreme Court stated that the legislative measures interfered significantly with constitutional rights and, at a level of principle, the matters were of general public importance. However, the court said that the applicants faced a difficulty because the lower courts had held that they failed to adduce the minimum evidence to ground an arguable case. It had been noted in the High Court and Court of Appeal that the applicants did not produce any expert evidence, which would have been essential to resolving the scientific and medical issues in the case.
The court also considered that a “further difficulty arises in this application stems from the generalised and often tendentious, polemical and partisan language and argumentation employed in the application”.
Even with these concerns, the Supreme Court was satisfied that there was an issue of general public importance raised by the applicants. The court said that it would examine the burden of proof required for leave applications, where an applicant was seeking to challenge the proportionality of an interference with constitutional rights. In particular, the court would examine whether the clear and significant impact on constitutional rights required leave to be granted.
However, this was the only issue that the court would consider on appeal. The court said that the applicants had not established any other evidential or plausible issue that should be examined by the court.
Finally, the court outlined the scheme which allowed for legal representation for parties in Supreme Court appeals. The court stated that the case was complex and should be argued by solicitor and counsel. If the applicants did not avail of the scheme, the court reminded them that they were limited to addressing the specific issues allowed in the determination.
The court also said that, given the history of the case, “it is appropriate to remind the parties that the proper administration of justice requires that proceedings be conducted with restraint, both in language and behaviour”.
The Supreme Court granted limited leave to appeal in the case. The court did not grant a priority hearing for the matter.