RIP, Bunreacht, (1937-2022)

After a long illness. At the Four Courts, Dublin, July 5th 2022. Sadly missed by the remaining sentient citizens of the former Irish Republic. Funeral arrangements later. American papers please copy.

At no time in the 27 months since we launched our constitutional challenge to the lockdown measures could either Gemma O’Doherty or I have predicted what has now occurred. That, sooner or later, we would be shot down was, of course, eminently predictable — that was the impression we received from the very beginning, and that continued for a year and a half in which our application for leave for judicial review was rejected by the High Court and Court of Appeal. From the very first day, April 15th, 2020, when we were met with radical hostility by officials at the Four Courts, until November 23rd 2021, when the Supreme Court agreed to hear our appeal, it was made clear to us that we were personae non grata in the eyes of the Irish State. That no one else had emerged — no sitting or former judge, no politician, no former government minister, no TD or former TD, no senator or former senator, no barrister or solicitor —  to challenge this unprecedented derogation of fundamental rights in Ireland, far from injecting some element of respect for our resolve in continuing with the case, seemed to make things even worse — at least until the moment when the Supreme Court declared, contrary to all previous analyses, that we had raised important issues. In these circumstances, it was impossible to foresee that, at the end of the process in the Irish legal system, we would be shot down by six out of seven judges of the highest court in the land, but that the dissenting voice would be perhaps the most brilliant Irish constitutional jurist to emerge in the past 50 years.

Since the ‘reporting’ of these matters has been attended from the outset by malicious and mendacious presentation in the legacy media, I propose to explain what has happened and how it differs from what has become the common understanding. This article, written over the four days immediately following the delivery of the majority Supreme Court Ruling, is necessarily provisional. I am not a lawyer and therefore incapable of seeing fully into the implications and ramifications. In total, the ruling and the dissenting opinion together amount to 125 foolscap pages — circa 35,000 words — so it is not possible to incorporate every meaning and nuance in even this extended article. I expect I shall return to this matter many times over the course of the remainder of my life, for it is without doubt the most important thing I have been involved in over the course of the four decades of my professional/public life, though this fact may not emerge into general consciousness for some considerable time.

Our application for leave for judicial review of the Covid legislation and regulations was heard by three courts:  the High Court, the Court of Appeal and the Supreme Court.  In all, we encountered 13 judges — three at the High Court level, three in the Court of Appeal, and seven in the Supreme Court.

We first applied to the High Court ex parte on April 15th 2020, representing ourselves before the court. This application was heard by Mr Justice Sanfey, who ordered that the Respondents — essentially the State/Government/Department of Health — be put on notice and permitted to make an appearance at a contested hearing. The case was returned for a week later, when Ms Justice Murphy ordered that the Oireachtas (Parliament) and Ceann Comhairle (Parliamentary Speaker) be added as Notice Parties. A week later, the case returned before Mr Justice Meenan, who would become the trial judge. The hearing proper lasted two days — May 5th and 6th, before Meenan J. In effect, although this was supposed to be a hearing to consider the question of leave for judicial review — normally a perfunctory matter that is conducted on a brief perusal of papers — it was converted into a quasi-full hearing of the substantive case — a ‘rolled up hearing’ — without this being made clear to us, the applicants-in-person.

An allegation that we had submitted ‘no evidence’ was levelled in the High Court judgement of Mr Justice Meenan on May 13th 2020, and became the standard media refrain over the coming two years. But this was totally at odds with what the judge had said a fortnight before, when at the leave hearing on April 28th, 2020, he told us: ‘I have read your grounds and they are very detailed and they’re very comprehensive and you cite various articles of the Constitution in support of your claim.’ And later: ‘Clearly if a State party or anybody gets as detailed a document as you have prepared, and I’ve commended you for yours, the detail that you have put in it, they have to have an opportunity to answer it.’

A week later, on May 13th, Meenan J. rejected our application, declaring that we had presented no scientific evidence and weaponising casual remarks that were made by us in some of the back-and-forth that had occurred during the hearing to depict us as, essentially, loose cannons. The media jumped on this caricature and, refusing to report anything of our actual submissions, presented our case as though it were baseless and without substance. This process of calumniation was aided by a number of lawyers and ‘alternative’ commentators, who emerged online to dismiss our case, though again without presenting anything resembling an adequate summary of  the contents of our submissions and pleadings.

We appealed to the Court of Appeal, again submitting detailed arguments. This case was heard on January 20th 2021, by three judges — the Court President, Mr Justice Birmingham, Mr Justice Costello and Mr Justice Edwards. Our appeal was dismissed in splenetic terms by Birmingham P., prompting a similar media circus as followed the High Court stage. Again, the accusation was levelled that we had submitted ‘no evidence’, even though we had on this occasion submitted an enormous folder of evidence, with copious exhibits and attachments, including scientific studies updating our submissions to incorporate the revelations of unprecedented medical, psychological and economic damage caused by the lockdowns, which had been tumbling out for many months.  Such evidence, self-evidently, had not been available when we first submitted our challenge, but we were supposedly permitted to update our pleadings at appeal level under the principle of de novo — (‘a second time, afresh’), which permits the updating of evidence on appeal.

We gave notice to the Supreme Court of our wish to apply for permission to submit a detailed appeal, and on November 23rd 2021, a three-judge panel of the court issued a determination granting us this permission.

For the first time, almost 20 months after we had submitted our ex parte application, a court acknowledged that we had raised important issues. The media coverage became sparser and more muted. The online ‘experts’ took to their shells.

Accepting that the measures had the effect of interfering significantly with a range of fundamental rights, and asserting that our application had raised ‘questions of general public importance’, the court extended us permission to make a case before it concerning the Covid measures ‘insofar as they concern in particular the constitutional rights to liberty, free movement and travel (Article 40.3.1 and 40.4.1); the inviolability of the dwelling (Article 40.5) and freedom of association (Article 40.6).’ The Court also noted that these issues may arise in other cases and circumstances, and that ‘it would be in the public interest to obtain clarity’.

We made our submissions in writing to the Supreme Court and, in due course, a hearing was scheduled for March 15th, 2022. We had again lodged copious written submissions, addressing all the issues that the Supreme Court determination had listed. At the hearing we were subjected to intense cross-examination on our arguments, though for the first time in the proceedings these interrogations were characterised by a degree of courtesy and respect, both Meenan J. and Birmingham P. — both with strong links to the governing Fine Gael party — having gone out of their way to be as unpleasant as possible.

Although last Friday’s Ruling, rejecting our appeal, was in the name of the Chief Justice, Donal O’Donnell, Mr Justice O’Donnell was not present at the hearing. Another judge, Mr Justice McMemamin, read out a summary of the Chief Justice’s Ruling, which has been endorsed by five of the other six judges, including McMenamin J. himself.

A summary provided by the court said that the core question on appeal concerned ‘whether the appellants should have been granted leave in the first instance.’

It continued: ‘In order to answer this question, this Court, in its determination granting leave to appeal, posed three interrelated questions. Firstly, was expert evidence required to be put forward by the applicants in order for leave to be granted? Secondly, if the Acts and Regulations have an impact on constitutional rights, does the onus shift to the State to justify that impact? Thirdly and finally, did the Acts and Regulations on their face have such a significant impact upon the constitutional rights of citizens that leave should have been automatically granted?’

In summary, the court found in our favour on questions one and three — finding that expert evidence was not required at the leave stage, and that the Covid measures did have a significant negative impact on constitutional rights.

Two out of three was not good enough, however, and the court shot us down on the second point, finding against our contention that the situation was analogous to a habeas corpus application, whereby as applicants at the leave stage we ought only be required to demonstrate prima facie unconstitutionality and then the burden of proof would shift to the State to, as it were, produce the body of the incarcerated Irish people and provide justification for why they had been incarcerated.  This is a rather complex legal question, so I will return to it in a more detailed manner presently.

To begin with, however, the ruling disposes of the canard that we had produced insufficient evidence — in general — a fallacy initiated by Mr Justice Meenan in the High Court and given legs by what might at a stretch be termed the ‘coverage’ in the bought-and-paid-for legacy media. This, in fact, was the centrepiece of the media lying about our case from the off: Without once taking the trouble to present the public with even a summary of our arguments, they latched on to Meenan’s diatribes to ridicule and vilify us.

Likewise the issue of unconstitutionality, which many commentators asserted that we had failed to prove. This too was a lie told to confuse the public.

In respect of the first of the three questions before the court, the Chief Justice states that, to reach the low bar of an ‘arguable case’, we were required to meet the threshold set out in the case of G. v. DPP, deciding by implication that we have done so. There was no deficit of evidence in our submissions in this regard, he confirms, noting that ‘in certain cases’ meeting the threshold in G. v.. DPP  (G. v. Director of Public Prosecutions [1194] 1 IR ) ‘may even be apparent from the provision in question’ —  in other words the spectre of unconstitutionality may be implicit in the complained-of legislation or regulation, and that is sufficient, a point we had repeatedly made. The judge added that, ‘if legislation can be defended without evidence and solely based on argument, analysis, inference and logic, the same must hold true for a challenge to the same legislation.’ The absence of expert or technical evidence, therefore,  could not, in and of itself, be the basis for a refusal of leave to seek judicial review if challenging the validity of legislation. On this point the High Court judge had been completely wrong.

Various criticisms are made in both the ruling and the dissenting opinion of Hogan J. of the manner in which the proceedings were pleaded and argued, and the court indicated that it was regrettable that, in the Supreme Court, the applicants had not availed of legal representation; however, the ruling adds: ‘no party with any broader interest sought to intervene, as the issues raised in this case are undoubtedly significant and would have benefitted from informed, detailed and closely reasoned legal argument’.

Nevertheless, the ruling adds: ‘the Applicants prepared detailed pleadings and submissions which showed considerable research and application of thought’. The ruling also reiterated that our appeal to the Supreme Court had been granted partly because of the importance of the issues raised in the application; and that the proceedings led to matters being raised which ‘should be of genuine concern to policy makers, lawmakers and the general public.’

The issue of our declining the court’s offer of pro bono legal representation has been the subject of some media commentary, generally uninformed. In November of last year, when the Supreme Court agreed to accept our appeal, such an offer was extended. However, the offer was not that the court would pay for our legal representation but that it would choose our legal representatives and have the State — our adversaries in this case — pay for them. This, for obvious reasons, was unacceptable to us, and we made this clear to the court, and publicly, at the time. Self-evidently, it is generally preferable in court proceedings if your lawyers are actually on your side, a factor that could not be guaranteed in a situation where we would have no say over who was selected to represent us, or what their view of the ‘pandemic’ or lockdowns might be.  

The basis of the ultimate rejection of our application centres on what is clearly a matter of some legal controversy and disagreement: the question of where the onus of proof resides in cases in which prima facie unconstitutionality has been established. This is a complex area, but in this ruling there appears to be a radical fudging of the fact that our case remained stuck at the leave stage. The Chief Justice observes that, in his experience, this issue ‘has not, before now, arisen for consideration in this court’, and in the ‘reality of constitutional litigation,’ he adds, ‘the issue rarely presents itself in any meaningful way’. This is for rather obvious reasons: most such cases relate to discrete issues affecting one person or a small group of persons, and tend to be personal in focus rather than ‘public interest’ oriented. This means, self-evidently, that the complainant will have a specific set of personalised grievances arising from narrow, personal circumstance, the tabulation and elaboration of which will usually satisfy the proportionality test, even at the leave stage. In reality, however, as observation of media reports of such cases confirms  — including in the past two years, cases in which applications for judicial review concerning aspects of the Covid laws or regulations either went through on the nod or were subject to consensual ‘rolled-up’ hearings  (in which the leave and substantive questions are addressed as a package) — these cases are almost never denied leave. Our challenge was utterly different to such cases, relating to the effective suspension of the fundamental rights section of the Constitution in the most extensive set of restrictions ever imposed in independent Ireland. This changes completely the dynamics of the proportionality equation from the terms of a straightforward personal aggrievement relating to specific, narrow but clear-cut circumstances, to a requirement for a broad balancing of multiple rights-infringements against the claimed justifications of the Government/State. This, clearly, required a full hearing to do these matters justice.

These considerations change — or ought to change — the question from one concerning the absolute onus of proof to the rather different question of where the onus of proof resides at the leave stage. At full judicial review hearing — as the Chief Justice indeed sets out, though in a tangential context  — the question, though important in principle, becomes rather more academic in practice, since both sides at that stage are required to set out their complete stalls — one side responding to the claims of the other, so that it scarcely matters which comes first and which replies. But greater clarity is critical at the leave side, in deciding whether the sides shall ever face each other in this way. The Chief Justice avers that under Irish law, the onus is on the applicant to demonstrate, in addition to demonstrating unconstitutionality, that the measures contained in the impugned Acts or emanating Regulations are disproportionate to the stated objectives, and therefore lack adequate justification. A critical question that the ruling fails to address is whether this ought to be part of a leave hearing, which is supposed to amount to a cursory assessment of the strength of the applicant’s arguments.  We say no.  

With regard to the question of the onus of proof in general, O’Donnell C.J. notes that the term 'proportionality' does not appear in the text of the Constitution, but that the concept was introduced to constitutional analysis by Costello J. in the High Court in Heaney v. Ireland [1994] 3 I.R. 593. The Chief Justice here holds that just because Costello derived his test from a Canadian authority (Canadian Supreme Court R V. Oakes [1986] 1 SCR 103, which placed the onus of justification squarely on the State), it did not follow that the same approach should apply under Irish law.

The Chief Justice holds there are legal, institutional and procedural differences between the jurisdictions of Canada and Ireland that make simply transplanting the Canadian test into the Irish system inappropriate, citing two decisions in which Irish courts had specifically distinguished the Canadian approach from ours.  He claims also that it is clear from Mr Justice Costello’s analysis in both his judgment in Heaney and from his extra-judicial writings that it was never his intention to tie Irish law to developments in Canada or any other jurisdiction. Consequently, the ruling attests, where Acts or Regulations have a significant impact on constitutional rights, it is not the case that the onus of justifying such an impact shifts to the State.

It is notable that none of the cases — either Irish or Canadian — relied upon by the Chief Justice relates to a leave hearing, in which the issue of proportionality is liable to be confused or conflated with arguability. In our submissions to the court, we had warned of this risk of conflation. It is self-evident from a consideration of the variety of cases considered by the Courts over the years that unprecedented — indeed unique — issues of substance arose in our case, in view of which — we submitted — a refusal to grant leave would amount to a refusal to properly carry the supervisory responsibility of the courts.  This is what has now occurred. It does not appear that the ruling has in any significant sense altered the principle, or clarified the situation concerning whether the burden of proof rests on the challenger in absolute terms, though in effect it assumes that this is how it has always been. It has, however, definitively moved this requirement from the full hearing to the leave hearing, which in practice will dispense with the need of judicial review in the (rare) cases in which applicants will succeed in jumping that fence.

Allowing for the shambolic way legal justifications are often plucked as though randomly from domestic or foreign case law, the court’s reasoning on this point seems uncharacteristically feeble and unsatisfactory.  That it is necessary to look to the Canadian legal system, and to, in effect, cherry-pick aspects of that system’s approach to the broad issue of the burden of proof, while rejecting others without any clear stated reason, suggests that the law on this matter is far from settled. Certainly, the ruling of the Court cannot be said to be axiomatic or self-evident — it is a rationalisation set in very flimsy foundations, and is accordingly utterly inappropriate in the unprecedented and precariousness of the constitutional conditions under examination — in circumstances where the courts have a bounden duty to uphold a wide variety of constitutional rights, most especially when the equivalent of a state of emergency has been put into effect; and where the measures apply to the population as a whole and are demonstrably, openly arbitrary in their application.

This is where the real sting of the judgement lies, the meaning that, previously unsuspected, serves now to disable the Irish Constitution in virtually all its significant and useful guarantees. For the outcome, as delivered by O’Donnell C.J., which contradicts some of his own previous rulings, also places, for all practical purposes, out of reach of ultimate protection many of the most enlightened rulings in the 85-year life of the Constitution, destroying the presumption of inalienability that underpinned the rights contained within it. The ruling is also intrinsically contradictory, as between two of the Supreme Court’s three core findings, since it finds that evidence is not so much required in the general sense, but indispensible with regard to what is by far the most complex question, one that can only properly be dealt with at full hearing. This means that the bar for obtaining leave has been raised to such a level that it is now almost impossible for any unmonied citizen to hope of jumping it without courting ruin, especially if the issue brings that citizen into potential conflict with the State more generally.

Three principles are stated at the very conclusion of the Chief Justice’s ruling that read, at first sight, to be reasonable outcomes, but which on closer examination reveal themselves as both internally contradictory and absurd.

In the first instance [116((i)], O’Donnell C.J. states: ‘It cannot be said that scientific or medical evidence must be adduced to obtain leave to seek judicial review where it is alleged that such provisions lack proportionality.’

The judge then says [116((ii)]: ‘Since expert evidence is not generally necessary, it follows that there are cases in which leave may be granted without such evidence whether because the impact of the challenged measure is so immediate and significant that it is obvious that it is arguable the measures are disproportionate. For the reasons set out above, this is not such a case.’

We shall return to this point presently, to consider what the ‘reasons’ are that this is not a case in which ‘the impact of the challenged measure is so immediate and significant that it is obvious that it is arguable the measures are disproportionate.’

The kicker comes in the third and final proposition [116((iii)]: ‘The onus of proof of proportionality does not shift to the State if it is established that there has been an interference with the constitutional rights. Acts of the Oireachtas are presumed constitutional until the contrary is shown, and the onus of doing so lies upon a party asserting such invalidity.’

Firstly, to summarise: In seeking leave for judicial review, scientific or medical evidence is not required where it is alleged that such provisions lack proportionality. This has an exalted chance of being so in cases where ‘the impact of the challenged measure is so immediate and significant that it is obvious that it is arguable the measures are disproportionate’. But, at the same time, the challenger must bear the total burden of demonstrating such disproportionality in respect of Acts of the Oireachtas, even after it has become clear that the such acts are prima facie unconstitutional.  

In sum, this is analogous to claiming that, in a habeas corpus case, the petitioner, having compelled the State into court to explain its reasons for incarcerating the person held in custody, must prove a negative without any foundational information: that there exist no reasons for the incarceration and that the person ought to be released from custody.

This means, in effect, that — contrary to the general assertion in principle of the Chief Justice — expert/scientific evidence is required at the leave stage if the object of the challenge is an Act or Acts of the Oireachtas — even after it has been demonstrated that the legislation in question is prima facie unconstitutional, since no other form of evidence or argument might remotely persuade a court subject to the dispensation laid out by the Chief Justice. And this in turn means that, in future, petitioners seeking leave for judicial review of legislation of any kind must be prepared to fight as though a full hearing at the leave stage, which is precisely what was imposed on us — by stealth — by Meenan J. in the High Court. The change here, in other words, is not a change in principle that has always pertained — that the petitioner must adduce sufficient evidence at judicial review to show that the impugned legislation, even when seen to be unconstitutional on its face, must also be shown to be disproportionate in terms of both the damage suffered by the applicant and in the terms of its justification by the State. That has always been the case, albeit that most cases were not such as to make this explicit. The change is that this must henceforth be done at the leave stage, making a mockery of the notion that the test of arguability, as defined in G.v. DPP, is a ‘low bar’. What it means, in fact, is the hearing of the substantive case in such applications will become ‘rolled backwards’ from the judicial review process itself to the leave hearing, at which the validity of a judicial review is supposed to be briefly considered. What has happened, therefore, is not some change in the law, but a reversal of the procedure, the moving of the cart of the substantive issue before the horse of the granting of leave, which in effect means that henceforth virtually all challenges to Oireachtas legislation by citizens will be stopped at the starting gate.

It is absolutely clear that this is utterly in conflict with, and contradictory of, virtually every established principle heretofore followed in the judicial review process, making nonsense of the proposition that the evidential requirements at the leave stage amount to a ‘low threshold’. By the long-held principles of judicial review, we did not need to demonstrate at the leave stage that our case was likely to succeed at full hearing, but simply to show that the issues we had raised could, to a reasonable person, appear to be worth raising, discussing and examining. The burden of proof bearing down on an applicant seeking to obtain leave for judicial review was described as ‘light’ by Denham J., in her ruling in G.v DPP, in which she added: ‘This preliminary process of leave to apply for judicial review is  . . .  to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily.’ She cited Lord Diplock in a 1982 UK judgement, where he stated: 

‘The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.’

Denham J. said that she was ‘satisfied that a like burden of proof applies in this jurisdiction, at the initial ex parte stage. . . .  It is a preliminary filtering process for which the applicant is required to establish a prima facie case. Ultimately on the actual application for judicial review the applicant has an altogether heavier burden of proof to discharge.’

The proffered basis by which these principles came to bear in the dismissal of our case had to do with the assertion that, whereas we had met the evidential bar in some general sense, there was a particular deficiency relating to the manner in which we — allegedly — regarded the Covid measures, and the basis upon which we challenged them. The Chief Justice’s position appears to be that where ‘a substantial explanation for measures affecting rights is available on the face of the legislation’ there is a receding tolerance within the logic of the procedure to any tendency in the challengers to dispute this ‘explanation’. For example, one supposes, where there is a global ‘consensus’ concerning a ‘pandemic’, this will be assumed to have a basis regardless of the paucity of objective evidence for it. Only if the challenger accepts the basic premises of the State’s position will he be entitled to obtain leave without providing outright proof of the falsity or untenability of the purported justification of rights-infringements arising from the legislation in question.

‘It may be possible,’ the Chief Justice avers, ‘to advance a claim that while accepting the objective identified in the legislation and the assessment of the circumstances giving rise to the legislation, that nevertheless the measures adopted are excessive and lack proportionality. Such a claim may be advanced by argument and analysis alone without necessarily advancing evidence . . .’

In other words, it is a requirement of the law that the petitioner more or less be ad idem with the State in its stated understanding of the reasons for any constitutional infringements in order to obtain leave for judicial review without having to fight the entire case at the leave stage, which of course, by definition, obviates the need to conduct a judicial review in the first place.

The Chief Justice continues: ‘If, however, the claim made involves a challenge to the objective identified on the assessment contained in the legislation and/or supporting evidence, then some plausible evidence would be required to establish that there was an arguable case that this was so;’

In other words, because we did not share the government’s assessment of the risks of Covid-19, we needed to prove the fragility of this position before we could cross the threshold to a full hearing.

In fact, we had submitted voluminous evidence in support of what we were saying, including enormous quantities of scientific reports and studies at the Court of Appeal stage (resubmitted at the SC stage) when the case in effect started over from the beginning under the principle of de novo — an especially important factor in a case like ours, which was changing every hour and minute of the 22 months it took us to get from the High Court to the Supreme Court. Nothing in the Chief Justice’s ruling suggests that he has even seen this evidence, never mind studied it; at no point does he, for example, allude to the evidence and provide any reason why it was not considered; and yet he criticises us for an alleged failure on our part to submit precisely such evidence. 

By these elaborations, it is clear that O’Donnell C.J. has effected in our case a sleight-of-hand in which he has deprived citizens the benefit of the pre-existing low-bar placed before applicants for judicial review of Oireachtas legislation, in effect abolishing the leave process in such cases and all but certainly replacing it — in virtually all such future cases — with what is termed a ‘rolled-up hearing’, where the leave issue and substantive case will be heard at the same time, in effect a contradiction in terms. The only kinds of challenges to be excepted from this new dispensation will be ones in which the challenger more or less accepts the broad justification of the State for the impugned legislation, even after it has become clear that prima facie unconstitutionality has occurred. If the challenger’s case is stronger than that — if, for example, he challenges the very basis of the justification — he must prove his entire case at the leave stage, in which instance a judicial review would become redundant.  

In effect this appears to be an extrapolation from what seemed a somewhat ludicrous proposition by Mr Michael Collins SC for the State, who, questioned at one point in the March 2022 hearing by the judges as to how we might have advanced a case with a more persuasive degree of arguability, proposed that we might have put forward an alternative set of measures which the Government would have introduced to avoid the extent of the unconstitutionality that had ensued.  I subsequently caricatured this proposal as the ‘lockdown light’ hypothesis, comparing it to the failed introduction of Guinness Light back in 1979. The advertising slogan for this variant had been ‘They said it couldn’t be done’, which in public banter rapidly morphed into, ‘They said it couldn’t be done — and they were right!’

In his ruling, the Chief Justice appeared to be advancing a proposal inspired by Mr Collins’s bizarre suggestion: that only if we agreed in principle with what the Government had done, and come up with a minimal variation on the same remedy, could we be permitted to challenge what had occurred. This seems to be an excellent way of ensuring that, if he is to avoid being given the runaround to nowhere, no citizen can in future do no more than wag a limp finger in court at governments encroaching upon his constitutional rights and freedoms. It is also hard to see how it is not the thin end of a new charter of encouragement to governments of the future that may seek to overreach their authority without consequences of accountability. 

In the end, then. the logic that sunk us went something like this: If we had more or less accepted the notion that the government was to some extent justified in introducing the measures it did, we would not have had to produce any substantial evidence (presumably because this was the conventional wisdom on the matter); but, because we utterly repudiated the necessity for the measures as introduced — arguing, as the Chief Justice put it, that ‘the State were completely wrong’ in (their) assessments, we needed to prove this all the way before we could be allowed to cross the threshold into judicial review.

This is a straw man, because the focus of our complaint was on the effects of the remedies as opposed to the rights or wrongs of the government’s justifications of them, to which we alluded purely in the contest that there was no evidence that the government had engaged in any process of due diligence or costs-benefits analysis, and that it was clear all the decisions had been made not by the Irish Government acting in accordance with democratic principles and procedures but by external, supranational bodies with no duty of accountability to the Irish people. In short, our case was against the Government’s presumptuousness and overreach in arrogating to itself the right to lock down the country, with the existence or validity of Covid as very much an ancillary question. In fact, in the beginning, when information was much scarcer than it subsequently became, our case was quite open on the question of whether the government might have had an arguable basis for justifying measures of some kind. By the time we got to the Supreme Court, all this had become much clearer, and it was obvious to an intelligent dog in the street that the measures had had no justification beyond  — at most — the first few weeks. In fact, in an exchange with Mr Justice Hogan and Mr Justice McMenamin at the Supreme Court hearing in March last, I agreed with their contention that there might well be circumstances in which a government would be justified in introducing some form of constitutionally restrictive measures in the public interest. I recall citing the ‘fireman’s ladder’ analogy of Mr Justice Hardiman in Dellway, to the effect that, if the fire brigade requires to put its ladder in your garden to get at a fire in your neighbour’s house, it does not need to seek you out to solicit your opinion or permission. That analogy may have applied to at least elements of the Covid measures in March and April 2020, but as spring gave way to summer with the measures continuing in place, this context of ambiguity and uncertainty drained away relatively quickly, with alternative scientific and medical views tumbling out all over the place — albeit suppressed by the bought-and-paid-for media. By the time we got to the Court of Appeal, in January 2021, it was abundantly clear that the measures, which were still continuing, had been way out of proportion to any threat to the public. 

At one point, the Chief Justice completely misstates our case, and indeed does so in accordance with a media-generated caricature that has survived since May 2020, by suggesting that our central proposition was that the Covid measures ‘were part of a global conspiracy to undermine the rights of citizens and the administration of justice.’ Now, this is, in part, the view I, and also Gemma, have arrived at after more than two years, but nowhere in our submissions to the courts did we seek to advance it.  When asked to expand orally on elements of our case, this belief may have occasionally become explicit, but it was never put forward as having anything to do with our taking the case, nor did our arguments depend on it. Nowhere in the several hundred-thousand words we submitted to the High Court, Court of Appeal or Supreme Court does such a construction appear; nor, to my certain knowledge, was any sentence of the kind uttered by either myself or Gemma O’Doherty to any of the three courts. The reference to a ‘global conspiracy’ is a distinctly odd construction for a senior judge to arrive at, especially as it has no basis in our submissions. It is, in fact, derived entirely from the prejudicial ‘reporting’ of the case in the media, having, as I say, no basis in the content or substance of our case.

This, I’m afraid, felt like yet another attempt at journaliar-baiting, to direct the headline writers away from the substance of our case and depict us yet again as bullgoose loonies. It is especially disappointing to me, since I had been consistently reassuring both Gemma and my wife that Mr Justice O’Donnell was a straight player, and a highly capable judge. I have consistently acknowledged also that the Chief Justice treated us throughout the proceedings with extravagant courtesy, including acquiescing in our insistence that the hearing last March take place in an open public court. 

The reference to the ‘administration of justice’ is especially odd, since this became a direct concern of our case only in the specific context whereby the courts were refusing to abide by Article 34, which requires that justice shall be administered in public.  It is true that — on the side, as it were, of proceedings — we repeatedly argued that, to comply with the constitutional requirement, the doors of the courts ought to be open to the public, but at no time did we suggest that this issue had anything to do with a ‘global conspiracy’, or with anything other than the attitudes of the courts and their custodians towards the constitutional rights of Irish citizens.

Had we been shot down on some inadequacy of our argument, it might be possible to accept the outcome with a shrug. Had the State, at judicial review, produced a surprise revelation concerning some factor about the virus that it had not, in the public interest, been able to reveal at the time; had it submitted convincing evidence of its researches into the likely effects of lockdown and explained that, employing its best endeavours, it had continued to believe that the disease was likely to be worse than the cure; even had the court heard the State’s explanation for its actions, and, while accepting its good intentions, set down clear limits on what the authorities are permitted to do, perhaps issuing a stern caution about overreach in the future — in such circumstances we might have been able to accept that at least the Constitution remained in, or had been returned to, a condition of health and functionality. But to be deprived of the opportunity even to put the State under pressure to explain itself by what is really no more than a farrago of sophistry, casuistry and word salad, is extraordinarily hard to take after having our hopes built up by the possibility of the Supreme Court breaking the trend of dissembling and obstructionism we encountered over the past two years.

The elephant on the escalator here is the lengths and convolutions the ruling goes to in order to achieve what must surely, from a democratic and rule-of-law perspective, be a most undesirable end: that the most comprehensive and unprecedented set of incursions upon the fundamental rights of Irish citizens should go unexamined by the only authority remaining capable of doing this. It appears that six of the seven Supreme Court judges are quite sanguine about this, and at most only slightly embarrassed by the fact that it is the outcome the governmental executive, the lamentable failed opposition of the Oireachtas, the World Economic Forum and whatever secret puppet-masters are at work in all this might have chosen as their preferred outcome. Thus, the appalling vista has been avoided, the unthinkable scenario whereby John Waters and Gemma O’Doherty might have had the opportunity to stage a root-and-branch challenge to the lockdowns before a High Court judge, perhaps under caution by virtue of a rigorous direction of the Supreme Court to the effect that no further monkey-business would be countenanced.

Our case was in fact fairly accurately summarised by Mr Justice Hogan in his dissenting opinion, which of course received no attention in the bought-and-paid-for media: that the unprecedented and open-ended measures employed against the ‘pandemic’ were utterly disproportionate to the circumstances, would do enormous damage at innumerable levels, had not been subject to any process of due diligence, and were both disproportionate and unconstitutional. We argued that, even if the logic of the ‘pandemic’ was accepted, this remained the case, and, as things proceeded, it became more and more clear that this position was correct. In all three courts, we were dealing with judges who had no idea what was happening beyond what they were being told by the dissimulating media. This was true even of Mr Justice Hogan, who was clearly convinced by the pandemic narrative, and occasionally dismissive of our stances and rhetoric — on one occasion referring to our ‘byzantine suspicions regarding the actions and motives of others’ —but nevertheless remaining capable of correctly reading our papers and divining the true line running through them.

Flatly contradicting the Chief Justice, Mr Justice Hogan argues that there was a ‘second element’ of our case, which he summarises as ‘predicated on the acceptance of COVID-19 posing a real and grave public health emergency but that the Acts and Regulations were nevertheless disproportionate and unconstitutional’.  This is entirely true. Though we had our own views to the effect that there was no real basis for the measures, taking our case at the earliest moment we opted to address the question of whether the response was proportionate in the context of the uncertainty that appeared to prevail at the very start.

What is clear from Mr Justice Hogan’s lengthy dissenting opinion is that he has considered that there might be a necessity to calculate the damage wrought by the lockdown in addition to any risk arising from Covid — a first across the entire run of the proceedings. He also suggests that emergency restrictions on constitutional rights ought to have been of much shorter duration, suggesting July 1st 2020 as a reasonable end date for the lockdown measures. He also sternly reprimands the Oireachtas for its failure to maintain oversight of the lockdown once it had been passed into law.

Gerard Hogan is an eminent and brilliant constitutional lawyer, capable of parsing statutes and splitting hairs better than the best of the rest. But in this judgment he largely confines his deliberation to common sense and human empathy:

While it is true that Article 4(2)(j) of the 2020 Regulations made exceptions for the care of vulnerable and elderly persons, the desire for friendship and company is by no means the preserve of the elderly. Human beings are by nature social creatures and the practice of providing hospitality in our own houses to relatives, friends and visitors is one with deep historical roots in all societies. One does not need to be a psychologist to realise that isolation and loneliness over a long period can have depressive and other effects on the general mood and psychology of many and not just simply the old and vulnerable.

Hogan J. touches on a number of other issues raised in our submissions: restrictions on movement and travel, religious freedom, and in particular the right to peaceful protest, which he says was ‘prohibited under pain of criminal sanction during this two month period between April and June 2020’. In fact this prohibition persisted in practice for a much longer period: On January 20th 2021, the day we appeared before the Court of Appeal, a number of our supporters were dragged away by robocops who jumped in spectacular numbers out of a fleet of white vans on Inns Quay and rough-handled away this bunch of mainly elderly citizens for the crime of standing outside the gates of the Four Courts singing hymns and reciting the Rosary.

He also dismisses a critical aspect of our case that we derived to a high degree from perusal of his own writings, this being the question of a government’s entitlement to declare an emergency and suspend elements of the Constitution in the first place. This is an argument requiring a separate article to do it justice, but there are certain things that may be stated unequivocally.

In our submissions we said that Article 28.3.3°, amounts to a definitive bar — a ‘backstop’ — on a government imposing what is in effect a State of Emergency while asserting not to be availing of the provision of this article.  It was one of the initial factors influencing us to take this case, as it seemed to us to be illegitimate for the government to introduce such a broad range of measures impinging on the most personal rights, freedoms and dignity of citizens when no context existed remotely equivalent to the conditions of ‘war or armed rebellion’ as required by the Article.

We argued that the government did not have any right, given that it intended such a wide, indeed exhaustive and comprehensive range of incursions on the personal and fundamental freedoms of citizens, to ignore the existence of Article 28.3.3° in a manner such as might be appropriate with some narrower measure or set of minor measures. We submitted that the extent of the lockdown restrictions was such as to dictate that the terms of Article 28.3.3° make a referendum essential before such measures as were introduced can become constitutional.

The State claimed in court that it had not sought to avail of the blanket capacity to suspend fundamental rights available via Article 28.3.3°, but was less clear-cut as to what alternative option it imagined to be available. It would seem that it decided to utilise the logic of a form of piecemeal abrogation of rights, relying upon the accumulation of these abrogations to provide it with an outcome similar or comparable to that which might have been achieved had the wording of Article 28.3.3° been better adapted to its purpose. We submitted that the reason this is not an option is that, when the Article was drafted, options such as here pursued by the government were expressly considered and ruled out.

The various historical texts of Article 28, together with the account of the circumstances surrounding the amendment of the Constitutional text in 1938, as comprehensively outlined in The Origins of the Irish Constitution, 1928 – 1941 (author G. Hogan), make it abundantly clear that the option of extending the provisions whereby a comprehensive State of Emergency, or anything equivalent to such, might be declared beyond the permitted context of ‘war or armed rebellion’ was deliberated upon at great length before that option was passed over. In that exercise, the Constitution was amended (by vote of the Oireachtas) but in the most minimal fashion as to achieve the necessary clarity and cover considered necessary to meet the exigencies of the international situation then manifesting. Much discussion ensued as to broadening the concept of ‘emergency’ to include other eventualities, but this was described by the then Taoiseach Mr de Valera, at the end of the process, as ‘unnecessary’.

In his dissenting opinion, Hogan J. accurately states our case in this regard as follows: ‘The applicants contend, however, that there is no power to declare an emergency other than that specified in Article 28.3.3. I agree that the only circumstances in which the operation of the Constitution can be overridden in certain circumstances is where the legislation in question has been enacted under cover of Article 28.3.3. But this does not mean that there is no other power on the part of the Oireachtas to recognise the existence of an emergency, the only difference is that in the case of these other emergencies the legislation does not enjoy the immunity from constitutional challenge contemplated by Article 28.3.3°.’

Mr Justice Hogan states that a government can declare anything to be an emergency if it is required ‘to act with great urgency’. The caveat, he says, is that such emergency legislation is open to challenge on account of falling outside the narrow definition in the Article 28.3.3°. But there is another caveat — that implied by Mr Justice Hardiman’s ladder parable: the ladder must be removed at the very earliest opportunity — it is inconceivable that it could legitimately stay in place for two and a half years, in anticipation of another fire.

The ‘existence of a wider emergency power is clear,’ Hogan J. states, ‘ — albeit indirectly  — from the text of other articles, in particular Articles 24, which makes a general provision for situations deemed to be ‘urgent’ and ‘immediately necessary for the preservation of public peace and security, or by reason of a public emergency, whether domestic or international.’ The language of Article 24.1, he elaborates, ‘—  which is clearly different from that of Article 28.3.3° —  contemplates the existence of a public emergency (other than one prompted by war or armed rebellion) in which the Oireachtas may have to act with great urgency. There would seem to be no reason why the threat posed by an epidemic would not fall into this category.’

But such situations as Judge Hogan hypothesises about here are nowhere specified or delineated within the Constitution, and the circumstances that arose at the time of the framing of Article 28.3.3° — as set out in Mr Justice Hogan’s own book — would seem to make clear that the framers of the Constitution considered the possibility of providing for emergencies other than ‘war or armed rebellion’ and decided not to. There can be little doubt that what occurred in March 2020 — when we experienced, in effect, a total suspension of constitutional rights — was many orders of magnitude more restrictive and severe than what had occurred during the ‘Emergency’ otherwise known as WWII, for which the original wording of Article 28.3.3° was amended by vote of the Oireachtas. It is interesting also that here, Hogan J. refrains from hypothesising about the necessity for some kind of time limit in the context of abrogative excursions outside the protection of Article 28.3.3°.

It would seem perverse if, in the absence of any clear provision permitting such ‘liberties’, a government was able to impose far stricter restrictions outside of Article 28.3.3° than those applied at the time the wording of that article was revised because its terms did not precisely fit the definitions of the emergency then threatening. It is surely unimaginable that, retreating from expanding the article further at that time, the framers would have been tolerant of far harsher measures being introduced without any solid constitutional foundation, having themselves chosen the path of caution, for fear of extending precisely such liberties to future administrations.

Mr Justice Hogan’s analysis is impressive, but only up to a point. He goes on: ‘As Mr. Waters correctly noted in his oral submissions, this general issue was addressed by Gavan Duffy J. in The State (Burke) v. Lennon [1940] IR 136 at 145. Referring to Article 24, Article 28 and Article 38, Gavan Duffy J. said:

“The need to provide for times of emergency was clearly foreseen and the emergencies in contemplation where defined... There is no provision enabling the Oireachtas or the Government to disregard the Constitution in any emergency short of war or armed rebellion.”

‘43. It follows, therefore, that the Constitution recognises the existence of an emergency other than one which invokes Article 28.3.3, save that in such circumstances the Constitution can be invoked as against the statute or statutory instrument effecting the restrictions. As I put it in Dowling v. Minister for Finance [2018] IECA 300 (at paragraph 114), [2020] 2 IR 273 at 315:

“Even, however, in an economic emergency the law is not silent, although under such conditions her voice is, admittedly, at time slightly quieter — even fainter — than is usually the case. In a democratic state based on the rule of law, that voice must nonetheless be sufficiently courageous and powerful to insist on adherence to basic constitutional norms such as due process and the protection of the substance of constitutional rights, even if some accommodation for the exigencies of the situation is also understandable and necessary.’

Although Mr Justice Hogan appears to have overlooked the implications expressed in Mr Justice Hardiman’s ladder parable, the view he expressed here would seem to be more or less ad idem with the position as he defined it in the case of Dellway Investments Ltd & Ors v NAMA & Ors, in April 2011, when Hardiman J. set out, in effect, the conditions in which a public authority might lawfully go beyond the terms of Article 28.3.3°, referencing ‘imperatives arising from a state of war or armed rebellion, an accident, or an acute emergency created by fire, natural disaster or other sudden and extreme circumstances which justify transient trespass upon [a citizen’s] property without his consent or without taking the time to see if he, as owner, wishes to urge any reason against it.’

‘Thus,’ he added, ‘the placing of a fireman’s ladder in one’s garden, to save imperilled life and property, does not require audi alteram partem if the garden’s owner is absent.’

He was, however, mindful and alert that ‘the cry of “emergency” might be used by a public administration ‘to set all rights aside’. The courts, he said, had no capacity to extend the right to suspend the provisions of the Constitution as expressed in Article 28.3.3°.  That, he said, ‘would require a decision of the people in a referendum, ‘if they thought it necessary or prudent to confer such unreviewable powers on the State.

‘The cry of “emergency” is an intoxicating one, producing an exhilarating freedom from the need to consider the rights of others and productive of a desire to repeat it again and again. It is abundantly clear, therefore, that only under the provisions of Article 28.3.3° is the State freed from constitutional restraint by virtue of declaring a State of Emergency under its existing provision or, in the event that a situation requires as much, by amending them to the needs of the situation at the time obtaining.’

The entitlement of the Government otherwise to suspend constitutional rights and freedoms must therefore be compared to the concept, in Mr Justice Hardiman’s analogy, of ‘transient trespass’. And whatever might be decided as to the permissible extent or duration of such measures, it cannot be in doubt — again, using Mr Justice Hardiman’s hypothesis — that the citizen must very expeditiously become entitled to question the extent and duration of those restrictions, in the only place in which he or she can usefully do so: a court of law. This is to say that, whatever might be the consensus view of how long or short, how rough or tender such measures were entitled to be, there can be no doubt about the proposition that the justification for transient trespass upon the freedoms and rights of the citizen ‘without his consent or without taking the time to see if he, as citizen, wishes to urge any reason against it’, must be extremely abbreviated indeed.

In the Covid episode, a marginal entitlement of State or Government to encroach briefly upon the fundamental rights of some or even all citizens was expanded into an ad hoc provision for the almost total suspension of the Constitution, which continued for two years and might at any time be resurrected on any pretext or none.

And this is the fundamentally disastrous consequence of what occurred in our case: that Mr Hogan’s sanguine sense that, denied the protection of Article Article 28.3.3°, the State remains answerable to the people, is only valid if the courts agree to permit the citizens to call the State meaningfully to account before them. If they do not, the notional idea of an alternative route to declaring an open-ended emergency offers a charter for despotism.

In a certain light, reading Judge Hogan’s exploration of the issues, it sometimes seems that he is constructing a middle-of-the-road justification for our case rather than accepting the most clear-cut one, which is essentially that under no circumstances could the blanket derogation of fundamental rights imposed in March 2020 have been justified outside of the terms of Article 28. 3.3° — and most certainly not beyond a few weeks at most — which would mean that, by right, the Supreme Court ought to have  struck down all the Covid laws without proceeding to judicial review. This must truly have seemed the most ‘appalling vista’.

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