Legal status of Covid measures still uncertain

Dismissal of charges against four men in Golfgate case has brought little clarity

Almost two years after the Covid-19 pandemic sparked emergency Government measures radically changing our lives as we had lived them, there is still no meaningful judicial pronouncement on the legal status of the regulations/restrictions/guidelines which effected that temporary change.

This week’s District Court acquittals of four men on charges arising from the Golfgate controversy, an outcry which itself highlighted the confusion over the regulations, has not altered that.

Attempts to challenge the legality of Covid-19 measures in the High Court either failed to get off the ground at all, such as the refusal to give Gemma O'Doherty and John Waters permission to seek a judicial review, or they ran into the ground whenever the disputed measure was lifted.

Challenges by developer Paddy McKillen jnr over restrictions on the operation of most of the construction industry, by the Restaurants Association of Ireland over indoor dining being permitted in hotels but not restaurants, and by businessman Declan Ganley over restrictions on public worship all fell into that second category.

Although a judicial review challenge by Ryanair over the Government's "advice" against international travel did actually get to a hearing, resulting in a decision that the advice did not exceed the power of the Executive, the High Court judgment was limited in scope as it only concerned advice.

Regulations

The District Court's dismissal on Thursday of charges against Independent TD Noel Grealish, former Fianna Fáil senator Donie Cassidy and two hoteliers, John and James Sweeney of organising an Oireachtas Golf Society dinner in August 2020 in breach of Covid-19 regulations brings little clarity to the status of those regulations.

Judge Mary Fahy found the organisers did everything they could to comply with the regulations, which provided for a maximum of 50 people at indoor events, and had in fact complied with the regulations. She found there were two distinct events in the Station House Hotel in Clifden and, as a result of a partition erected in a room in the hotel, the 81 people attending the event were accommodated in two distinct areas. The judge said she had a reasonable doubt and dismissed the charges.

The outcome of the case was widely predicted in advance by lawyers, many of whom were sceptical whether there was adequate evidence to support any convictions.

Mr Justice Séamus Woulfe, the Supreme Court judge who attended the Oireachtas Golf Society event, was among several prosecution witnesses who testified their belief was that the event complied with the guidelines and several legal sources believe the District Court outcome has vindicated his subsequent refusal to resign his position. "Judge Woulfe has been looking a lot more cheerful this week," one lawyer observed on Friday.

A former attorney general, Mr Justice Woulfe was appointed in July 2020 to the Supreme Court but, as a result of the furore over Golfgate a month later, did not sit on the court until February 2021. He apologised early on over his attendance.

A report by former Chief Justice Ms Susan Denham expressed the opinion he should not have attended for reasons of propriety but said that seeking his resignation would be disproportionate. An informal resolution process put in train by the Supreme Court afterwards ran into difficulties and culminated in an extraordinary publication of correspondence by then chief justice Mr Justice Frank Clarke, expressing the view that Mr Justice Woulfe should resign and the judge refusing to do so .

Lawyers remain divided over whether Mr Justice Woulfe should have attended the Oireachtas Golf Society event at all. Some firmly hold the view, irrespective of the pandemic, judges should not be attending events which could be perceived as having political links and also maintain the judge could have handled the aftermath better.

Controversy

Irrespective of their views whether or not the judge should have attended the event, many lawyers believe that seeking his resignation was unnecessarily divisive and disproportionate. All of those whom The Irish Times spoke to this week were adamant the controversy is well and truly over and that it is “business as usual” in the Supreme Court.

“The judges are mature professionals, they know they don’t have to like each other to work together and they are working together. Golfgate is over,” according to a senior source.

It may be over but concerns remain about what David Kenny, associate professor of law at the School of Law at Trinity College Dublin, describes as the "repeated blurring of the lines over the last two years" between what is law and what is guidance.

“That blurring of lines is deeply problematic. From a rule of law perspective, there should be clarity about legal obligations.”

While stressing he was very sympathetic to the Government’s need to move swiftly in response to the public health crisis posed by the pandemic, Dr Kenny believes that lack of clarity worsened as the pandemic progressed. He is concerned about the potential impact. “There is a real risk, if you mislead people about what the law is, they will stop taking it seriously.”

Dr Kenny, who was one of the co-authors of a 2021 report by the Covid-19 Law and Human Rights Observatory in TCD which looked at four statutes and more than 65 sets of regulations enacted between March and December 2020 in response to the pandemic, said he is “amazed how little law” there is arising from the emergency measures put in place over the past two years.

“I would never have expected, in my lifetime, to have seen such extraordinary measures with no judicial scrutiny of them.”

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