Court rejects challenge by Waters and O’Doherty to Covid laws

Court of Appeal says case over constitutionality of laws failed to raise issues of substance

The Court of Appeal (COA) has dismissed an appeal by John Waters and Gemma O’Doherty against a refusal to permit them to challenge the constitutionality of laws introduced in response to Covid-19 on the basis it was “misconceived and entirely without merit”.

They had appealed the High Court’s refusal to permit them to bring the challenge and its award of costs of that hearing against them.

In their judicial review proceedings against the State and the Minister for Health, with the Dáil, Seanad and Ceann Comhairle as notice parties, the appellants sought to have various legislative measures declared unconstitutional and flawed.

The three-judge Court of Appeal, comprising the COA President Mr Justice George Birmingham, Ms Justice John Edwards and Ms Justice Caroline Costello dismissed all grounds of their appeal.


Giving the court’s decision, Mr Justice Birmingham said that court was “quite satisfied” that the approach taken by the High Court in relation to their case “was the correct one”.

The case was “controversial and tendentious”, and no serious legal issue that would justify the granting of permission had been raised by the appellants.

The applicants claimed “to know better than the Government and the Oireachtas” and had dismissed internal and international advice concerning the pandemic available to the government.

They had “chosen rhetoric over substance and fiction and distortion over fact” and failed to meet the threshold of establishing an arguable case, the judge concluded.

Mr Justice Birmingham said, during the appeal, Ms O’Doherty had referred to the World Health Organisation as “a private corporation” and had made “allegations of treason” against the respondents and notice parties.

While the underlying circumstances that resulted in the State taking “very far-reaching measures” are “extraordinarily grave”, the judge said Ms O’Doherty and Mr Waters had “singularly failed to raises issues of substance”.

While some of the arguments advanced “might have a certain appeal if addressed to a flag-waving assembly outside the Custom House, they had no purchase when addressed to a court of law”.

The judge said the applicants, who described themselves as experienced journalists in the fields of law, science and medicine, were aggrieved by the High Court’s criticisms of them for giving unsubstantiated opinions and speeches and drawing a comparison with Nazi Germany.

The appellants, who claimed their case was supported by scientific evidence, were critical of Mr Justice Meenan’s attitude towards a Government whose actions they described as being catastrophic and in breach of people’s fundamental freedoms.

The judge said they had claimed no scientific studies exist to support the wearing of masks to stop the spread of viruses.

Ms O’Doherty stated there was a cure available for Covid-19 in the form of hydrochloroquine, zinc and Vitamin C, but what health services had been doing was placing patients in ICUs on ventilators bringing about their deaths.

“To put it at its mildest there was a tendency by the appellants to present as unchallenged fact what is keenly in dispute.”

“One is reminded of comments in another context of the existence of alternative facts” the judge said, adding the High Court’s approach to these issues complained of was “entirely correct”.

The COA did not intend to depart from the normal rule that losing parties should pay the legal costs of the action, he said. If any party seeks such a departure, they must make written submissions to the court and it will rule on later on costs.

Last year, Ms O’Doherty and Mr Waters sought to challenge legislation including the 2020 Health Preservation and Protection and Other Emergency Measures in the Public Interest Act; the 2020 Emergency Measures in the Public Interest Act Covid-19 Act and the 1947 Health Act (Affected Areas) Order.

They claimed the laws, and the manner in which they were enacted, are repugnant to several articles of the Constitution including concerning the rights to travel, bodily integrity and the family, and amounted to an “unprecedented suspension” of constitutional rights.

Last May, Mr Justice Charles Meenan refused to grant them leave and said their claims were not arguable.

They had not provided any expert evidence or facts to support their view the laws were disproportionate or unconstitutional.

The manner in which the Houses of the Oireachtas dealt with the laws, introduced by a caretaker government and voted on by an incoming Dáil and outgoing Seanad, was not something a court could interfere with, he said.

The laws are constitutionally permissible and the proceedings should have been brought via plenary hearing, involving hearing oral evidence, and not judicial review, he held.

In their submissions to the appeal court Ms O’Doherty, and Mr Waters argued the High Court’s decision refusing them permission to bring their challenge against the laws was wrong and that they did not get a fair hearing before the High Court.