The Ladder and the Law(n)
This Tuesday, the Supreme Court hears an appeal by Gemma O’Doherty and me of the High Court’s refusal of our application for a judicial review of the Covid laws. Here is a sample of our submissions.
(1) Onus of Proof
The idea that the onus is on those seeking to protect the Constitution and the freedoms of Irish people is an absurdity on its face. Self-evidently, the onus must be on those seeking to annul or suspend elements of the Constitution to offer adequate justification for such measures when required by a Court to do so. Although the lower courts rejected out of hand this proposition, the Supreme Court determination puts it back on the table.
In a case like this, we submit, the burden of proof should be akin to what applies in a habeas corpus — where a citizen claims that someone has been unjustly incarcerated and files a demand that the ‘body’ of that person be produced before a court. In those circumstances, the Constitution in Article 40.4. 2° stipulates, that, ‘Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint . . . ‘
We, faced with a situation in which we ourselves — as well as in effect every other citizen — had been unlawfully incarcerated by our own government, went to court in April 2020 imagining that something along the same lines would ensue. Instead we met an ambush of gaslighting and misdirection, aided by the malicious ‘reporting’ of the media, which sought to twist the content of our case and the nature of the process in which we were involved.
(2) Declaration (or not) of an Emergency
This issue, in our submission, amounts to a definitive bar on the Government doing what it has done in seeking to impose what is in effect an Emergency while asserting not to be availing of Article 28.3.3°. This is a nonsense.
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 submit 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 in some narrower measure or set of minor measures. Such a course might be arguable by the authorities if the incursions on fundamental rights impacted only on a certain category of individual or group of individuals, in which the benefits of the incursions to the common good might be said to outweigh the attenuation of individual rights in a few cases. We submit that in this case the extent of the restrictions is such as to rule this out, and that the terms of Article 28.3.3° make a referendum essential before such measures as were introduced can become constitutional.
The Government claimed in court that it had not sought to avail of Article 28.3.3°, but solely in the context that it did not seek to avail of the blanket capacity to suspend fundamental rights available via this Article. It accordingly 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 submit that the reason this is not an option is that, when the Article was drafted, a course 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 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 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’.
This may seem a rather weak, and therefore ambiguous pronouncement, but it is clear that what Mr de Valera meant was that it was sufficient to cater for the ‘necessities’ of the instant moment, implying that there might be other good, but unspoken reasons for not extending the scope of the Article. What he was saying, in effect, was: ‘If we do not need to do it, we should not invite the risk implicit in such an expansion of the constitutional parameters.’ It is reasonable to infer, on the basis of various commentaries emanating from the Bench in proximate years, that the concern had to do with the possibility that future administrations might become disposed towards taking liberties with such a provision, were it to be drawn too broadly.
This same understanding prevailed within the judiciary into the present century. In 2011, Mr Justice Adrian Hardiman, in the case of Dellway Investments Ltd & Ors v NAMA & Ors, on April 12th, 2011, stated:
‘But it must be clear to even the strongest proponent of the need for the decisions of public authorities to be approached applying fair procedures, that it must, in rare and clearly defined circumstances, yield place to other imperatives. A property owner has a clear right to have his property respected by the State and safeguarded from trespass or seizure by others; but there may be 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 his property without his consent or without taking the time to see if he, as owner, wishes to urge any reason against it. Thus, 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.
‘But it is the business of the law to identify such circumstances: otherwise the cry of “emergency” would be sufficient to set all rights aside at the whim of the Executive. Our Constitution makes specific provision for “war or armed rebellion.” It is not for the Courts to extend those provisions to a situation which is not one of war or armed rebellion. That 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 provisions or, in the event that a situation requires as much, by amending them to the needs of the situation at the time obtaining.’
Several clear points can be adduced from this summary of the situation as it was regarded as pertaining in 2011:
1. There are circumstances in which, for reasons to do perhaps with national security, safety or some such emerging situation, that the State would be entitled to temporarily suspend elements of the rights and freedoms of certain citizens, groups of citizens, or possibly even — in the most urgent and short-lived circumstances — all citizens. As has repeatedly been said in the course of these proceedings, personal rights are not absolute. But they are not nothing either, and this implies that it must surely be possible to arrive at some clear formulation whereby it becomes possible to place the ladder on the lawn without having to stand on ceremony, as per Mr Justice Hardiman’s example.
2. It is equally clear, however, that such encroachments cannot approach the level of latitude available under Article 28.3.3° — unless the situation being addressed falls within the terms of that article, viz. a situation involving war or armed rebellion.
3. It seems clear, therefore, that, were a line to be drawn with the inscription ‘1939’ at one end and at the other a small ‘e’ denoting some theoretical concept of the maximised constitutional encroachment outside the purview of Article 28.3.3°, that even the maximum incursion upon fundamental rights for emergencies not meeting the definition within Article 28.3.3° must by definition be significantly closer to the small ‘e’ end of the line than to the ‘1939’ end.
4. By any objective measure, the encroachments on human rights and freedoms — by which we mean the widespread and radical suspensions or abrogations of fundamental and personal rights in the Covid episode — were from the outset and up to this very moment way in excess of what pertained during the ‘big E’ Emergency that pertained from 1939.
5. The entitlement of the Government 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 example and language — 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.
6. Mr Justice Hardiman continues: ‘But it is the business of the law to identify such circumstances: otherwise the cry of “emergency” would be sufficient to set all rights aside at the whim of the Executive.’
And this, we submit, is precisely what has happened here. A marginal entitlement of the State or Government to encroach briefly upon the fundamental rights of some or even all citizens has been expanded into an ad hoc provision for the almost total suspension of the Constitution, which has continued, up to the time of this writing, for some 22 months. Mr Justice Hardiman could not have been more clear: ‘Our Constitution makes specific provision for “war or armed rebellion”. It is not for the Courts to extend those provisions to a situation which is not one of war or armed rebellion.’ Nor is it, we submit, for the Government, or even the Oireachtas, to do so. Only the people themselves, as Mr Justice Hardiman elaborates, are entitled to do this, and there is a ready mechanism available for this purpose in the form of a referendum.
(3) The Precautionary Principle and the Common Good
An additional factor motivating our challenge was the clear indication from reports of the lockdown rollout and the public statements of politicians that no process of balancing, or any form of costs-benefits analysis, or calculus of the relative damage to be wrought by these measures as compared with the virus left unchecked or merely subject to normative measures, had been entered into by the Government.
We submit that a plea of proportionality by the Respondents is therefore impossible.
The Respondents, in their submissions to the High Court, intimated that the Government had no option, in the circumstances before it in March 2020, but to prepare for the ‘worst case scenario,’ which is to say to apply the Precautionary Principle so as to minimise the likely damage. We submit that this was not the case — that there was in place an entirely balanced and reasonable national plan for precisely such a situation (the pandemic preparedness strategy) which was abandoned in favour of an untested and baseless programme of public coercion.
We submit also that the precautionary principle cannot be applied asymmetrically. In a situation whereby you have a reportedly immediate threat — a virus, of which, to take the most extreme example, the death rate is not yet known and the infectivity not yet measured — the precautionary principle here advises: Assume the worst. This gives you the greatest scope for action. But you then must pause and consider the negative effects of the measure you propose to achieve that objective based on the worst case scenario. The precautionary principle does not allow you to assume the worst about the imminent threat and the best about the measures you propose to impose. To assume that it does is a misapplication of the principle that is liable to be catastrophic. That, we have submitted from the outset, is what has occurred here.
The government, in the circumstances of March 2020, had a responsibility equivalent to its deference to international opinion, to construct a calculus of the possible risks and damage that might accrue as a direct or indirect result of the steps and measures it was proposing to take. In other words, the potential damage likely to accrue from the virus ought to have been measured against the likely negative effects and costs — economic and otherwise — of the remedies being proposed, counterbalancing the proposal of maximum safetyism in the face of the reported threat with a countervailing consideration of the likely adverse consequences of any remedial measures. Such a calculation might have radically changed the nature of the decisions to be taken. There is no evidence that any such process was entered into, and that was already clear to us at the time we lodged our application on April 15th, 2020.
This concept of a balanced calculus goes also to the concept of the ‘common good,’ much referenced in public discourse over the past couple of years, but nearly always in a manner as to lean heavily towards maximum safetyism with regard to the virus. This, we submit, is a misunderstanding not only of the precautionary principle but also of the common good. The concept of 'the common good' firstly appears in the Constitution’s text in the Preamble, which declares that one of the objects sought to be achieved by the enactment of the Constitution is 'the promotion of the common good, so thạt the dignity and freedom of the individual may be assured and true social order attained.’ This wording is proximate to the basis of our case.
We submit that, in the discussion surrounding the Covid ‘emergency’ of the past two years, and markedy so at the beginning — in March 2020, when the package of legislation was being enacted, and subsequently as the various measures were rolled out — the persistent insinuation of governmental and health authorities, and media commentators, was that the ‘common good’ implies something along the lines of ‘in the interests of the collective, even if to the detriment of all or any individuals.’ By this interpretation, any loss, restriction, privation or damage incurred by the individual was to be regarded as inconsequential as compared to the necessity to pursue the largely theoretical objective of ‘saving lives,’ albeit in some nebulous, generalised sense. We submit that this objective, though seeming to ascribe enormous virtue to its proponents, was nothing like as simple as was suggested, not least because of the failure to anticipate and measure both the benefits and the damage likely to accrue from the measures as proposed and pursued. We can provide the Court with copious evidence to demonstrate that, as a general rule, the measures pursued actually caused a significant number of people to die earlier than they might have, and overall achieved no such benefits as their proponents averred. More generally, the measures imposed untold hardship on people — in the context of, inter alia, their (non-Covid-related) health (physical and mental), their livelihoods, family life, friendships, social mobility, overall happiness and well-being. These arguments, too, can be supported with copious evidence.
In, Human Rights and Constitutional Law, Essays in Honour of Brian Walsh (The Round Hall Press, 1992) the former High Court judge and Attorney General, Declan Costello, devoted the greater part of an essay titled Limiting Rights Constitutionally to ‘the common good’:
‘The notion of the common good is derived from the concept that a political community exists to provide a whole range of conditions (material, social, moral, cultural) so that each of its members can realise his or her development as a human person. Thus the common good is the whole ensemble of conditions which collaboration in a political community brings about for the benefit of every member of it. This point is made clear in the preamble to which reference has just been made, for the common good is not the good of the political community as such (which is a concept inherent in the totalitarian State and inimical to the protection of human rights) but is an end to be promoted for specific purposes, which include the furtherance of the dignity and freedom of every individual in society. The concept of the common good in the Constitution is one derived from scholastic philosophy and differs fundamentally from the utilitarian concept of the greatest good of the greatest number. This concept is seriously flawed in that it attempts to measure happiness and compare it with pain, and also because it provides a theoretical justification for the restriction on the rights of members of minorities. When therefore the exigencies of the common good are called in aid to justify restrictions on the exercise of basic rights it has to be borne in mind that the protection of basic rights is one of the objects which the common good is intended to assure.’
This, we submit, is entirely in harmony with the statement in the Preamble which associates ‘the promotion of the common good’ with achieving ‘the dignity and freedom of the individual’ so that, at the same time, ‘true social order’ (our emphasis) may be attained.
We submit that, by this analysis, a degree of clarity emerges with regard to the nature of the balance to be entered into in any calculation in which the abrogation of fundamental rights is contemplated. Just as it is inadequate and dangerous to pursue a singular objective of protecting the greatest good of the greatest number by engaging in an extreme safetyist interpretation of the precautionary principle, it can be contrary to the common good — in the sense of Mr Justice Costello’s incorporation of individual rights protection into a balanced concept of the common good — to restrict the ordinary personal rights of those you are claiming to protect. This is, in other words, a reductive view of the common good, and one resting on premises that are difficult to measure, especially in the short term. By Mr Justice Costello’s analysis, it is not possible to reduce the common good down to one constituent element, be that health or safety or public morality. The social fabric requires many other considerations to be brought to bear — including cultural, social, educational, private, emotional, romantic and sporting factors, the right to grow in society, the freedom to do ordinary things, the right to decide one’s own health ‘policy’ for oneself, and so on. If restrictions are imposed in any of these areas, it is likely that negative consequences will occur firstly in the life of the affected person, but eventually in the society as a whole, albeit more slowly than the timeframe of the situation being addressed by the precautionary principle usefully or definitively permits to be measured and accounted.
There is a difference, perhaps paradoxically, between an infringement on the personal right of an individual and on the, as it were, aggregate of the personal rights of all citizens, such as is at issue in this case. For the first may, undoubtedly, infringe upon the rights of that one person (or a small number of persons) and yet be justified in the ‘common good’ — perhaps by virtue of some peril to the community, including the individual rights of other citizens. But in the encroachment on the rights of all citizens, all at once, though at first sight appearing merely to be the aggregation of a multiplicity of individual instances of such infringement — and therefore to be subject to the same logic — there is a qualitative difference. This arises precisely because of Mr Justice Costello’s formulation, whereby ‘the protection of basic rights is one of the objects which the common good is intended to assure.’ For here there enters in a further consideration: Does the infringement of the rights of an entire population itself represent a serious offence to the common good? If so, how is this to be accounted? Is it possible to weigh it against the putative loss to the common good of failing to impose the restrictions proposed? Or of a threat defined by unaccountable ‘experts’? Or at the whim of politicians supported by media who are being subsidised from public funds?
We submit that, if such an analysis is applied to the actions of the Government and Oireachtas in March 2020, overwhelming deficits will emerge not merely under the heading of individual rights, but also under the heading of the ‘common good’, properly understood and applied.
We refer the Court to the expansive judgements in the case of Gorry & Anor v. The Minister for Justice & Equality & Ors [2020], to the two separate judgments of McKechnie J. and O’Donnell J. (as he then was; he is now the Chief Justice), which deal in detail with several aspects of this question, clearly concluding that matters as general as the ‘common good’ are not sufficient to overcome the all but sacrosanct nature of certain individual freedoms.
The passages in question are too lengthy to cite in full, but we refer in particular to the judgement of McKechnie J. (pps. 131 – 133, p. 160/161) and O’Donnell J. (p.10, p.14 – 17, p. 37/38, p. 186).
In summary, these judgements find inter alia as follows:
* ‘ . . . even if it is the case that not every word appearing in the provision can be taken absolutely literally, the emphatic nature of the words used, and the sheer number of occasions in which such strong language is employed in the provision, is undoubtedly of significance in interpreting the Article (41).’ [McKechnie J., p.133];
* ‘ . . . it must be remembered that the court is construing a constitutional document whose primary purpose in the field of fundamental rights is to protect them from unjust laws enacted by the legislature and from arbitrary acts committed by State officials.’ McKechnie J., p.160];
* ‘These words are, however, an indicator that the rights protected by Article 41.1.1° should enjoy the highest possible legal protection which might realistically be afforded in a modern society.’ [O’Donnell J., p.10];
* ‘It is, moreover, strange to speak of individual rights (particularly those considered indefeasible or entitled to the highest level of protection) being limited (and, in truth, overridden) by matters as general as those identified such as the “common good” and “the integrity of the immigration process”. Individual rights have value precisely because they are not subordinated to the interests of others. Second, it is unusual for individual rights to be overridden by such vague and general considerations . . . Furthermore, it is not normally enough to say that, while there is an interference with rights, the common good or the integrity of the immigration or social welfare systems are valid countervailing considerations.’ [[O’Donnell J., p.17];
* ‘I also respectfully disagree that the words in Article 41, and in particular the words “inalienable” and “imprescriptible”, should not be given their ordinary and natural meaning.’ [O’Donnell J., p.37].
Quite clearly, the measures at issue here are oppressive to at least some citizens, as well as being disproportionate to the objectives said to be the basis of the relevant laws, and conferring no clear or quantifiable clear benefit on any substantial body of citizens in the course of interfering with the personal rights of all citizens. Put another way, no particular citizen would be able to say with verifiable certainty that his life was saved, or his health protected, by the measures, whereas many citizens would be able to point to losses, damage and hurt accrued as a result of them.