A looming constitutional challenge against the law on mandatory hotel quarantine will have to surpass a high threshold to unpick some of the most draconian measures, legal experts have said.
Lawyers acting for two women who refused to enter quarantine after arriving in Dublin from Dubai must file legal papers for the constitutional challenge by Friday after the High Court ordered their removal from Mountjoy women's prison to a designated quarantine hotel.
Legal experts said the bar was very high given the magnitude of the health emergency facing the State as it battles the global pandemic.
"I think it's a very, very steep hill they have to climb. There will be a lot of deference shown by any court to the measures that are being challenged – that's largely because of the separation-of-powers doctrine," said Niall Michel, a partner at solicitors Mason Hayes & Curran who works in public and regulatory law.
“But also once they get under the bonnet, they will be required to produce a lot of detailed scientific and expert evidence to dislodge the evidence that the State will adduce in support of the measures and the basis for them and their proportionality and necessity.”
A second lawyer, who declined to be named, said a challenge was seen as inevitable given the severity of restrictions on personal movement that were so sweeping they would hardly be contemplated in ordinary times. The regime introduced new dimensions to the law that went beyond restrictive measures introduced in the 1940s to combat tuberculosis.
But the barriers to a successful challenge were all the greater because of anxiety about new coronavirus variants, which were compounding the health emergency, the lawyer added. “You’re dealing with a moving target that’s changing all the time.”
‘No lawful basis’
The next case follows weekend High Court proceedings in which a challenge to the legality of the women’s detention in Mountjoy was converted into a constitutional challenge against the 2021 Health Amendment Act, the law passed in March that introduced the hotel quarantine regime.
Lawyers for Niamh Mulreany and Kirstie McGrath have argued before the High Court that mandatory quarantine amounted to a form of preventative detention for which there was no lawful basis.
Michael French, solicitor for the women, declined on Monday to set out the basis for the constitutional challenge.
One aspect likely to feature is the argument that the legislation creates absolute liability offence, for which there is no defence if a person refuses to go a hotel. A further potential ground for challenge is on the proportionality of the measures in a situation where Ms Mulreany and Ms McGrath had three clear test results saying they did not have coronavirus.
One more was the fact that an appeal against mandatory quarantine can be made only after going to a hotel. Another potential ground for challenge is to question the status of the public official who decides whether a person can leave hotel quarantine, given the implications of the official’s decision for the person.
David Kenny, associate law professor at Trinity College Dublin, said it would be difficult to mount a successful challenge against the substance of measures establishing a mandatory quarantine regime. However, there could well be scope for a successful challenge on procedural grounds.
“If the State can show a good solid case for this being necessary to achieve an important objective, the courts defer to some extent to that determination,” he said. “They give a lot of room for the State to act in those situations.”
“This is broadly speaking a restriction on rights that the courts might uphold, but the devil might be in the details of how this law is executed.”
He saw potential to challenge the law on three questions: whether there was a way for people to provide a reasonable excuse not to go into quarantine; on the appeal process to review mandatory quarantine; and on whether there was arbitrary dimension to the selection of countries for quarantine.
“Those arguments I still think might be challenging to win. But those are the ones that might succeed, which is to say that the courts would not say that it can’t be done but that it’s being done in an unacceptable manner,” Mr Kenny said.