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Legal challenge to lockdown 'doomed to fail', court is told


Supporters of Gemma O’Doherty and John Waters outside court

Supporters of Gemma O’Doherty and John Waters outside court

Supporters of Gemma O’Doherty and John Waters outside court

A challenge to laws introduced by the State due to the Covid-19 pandemic is doomed to failure, the High Court has heard.

The challenge by John Waters and Gemma O'Doherty was also described as "a full-frontal attack" on articles of the Constitution concerning the separation of powers.

In judicial review proceedings against the State and the Health Minister the pair seek the quashing of various pieces of recently enacted legislation which they say are unconstitutional and flawed.

They also want the court to make a declaration that the legislation challenged is unconstitutional.


Lawyers for State respondents, as well as lawyers for the Dail, Seanad and the Ceann Comhairle, who are notice parties, oppose the action.

That preliminary application came before Mr Justice Charles Meenan, who, following the conclusion of submissions yesterday, reserved his decision.

The judge, who did not say when the court would be able to deliver its decision, said he would give the matter his "complete priority".

He said that in line with what has become normal practice during the pandemic, the judgment would be delivered electronically.

On the second day of the hearing Patrick McCann SC, for the State, told the court the application was "doomed" on several grounds.

It was procedurally flawed and should have been brought by way of plenary hearing which would involve the hearing of oral evidence, and not by way of judicial review, counsel said.

There was a failure to put expert evidence supporting their challenge before the court, Mr McCann added.

He also said the applicants lacked the legal standing to bring the case to a full hearing, as they had not set out how the regulations challenged personally affect them.

Francis Kieran BL, for the Oireachtas notice parties, said the challenge was "a full-frontal attack" on articles on the Constitution and the separation of powers.

Counsel said that the courts should not interfere with decisions made by the houses of the Oireachtas.

Counsel said that the caretaker Government was entitled to bring forward the laws, that they were unanimously passed by agreement of the parties and technical groups of the incoming Dail.

The Dail was perfectly entitled to have a reduced number of TDs attend and vote on the laws.

There was no issue in relation to the outgoing Seanad voting on the laws. Counsel said while the Dail is dissolved on the calling of an election, the Seanad remains in place until the day before a new one is elected and is entitled to vote on legislation that comes before it.

In their submissions, Mr Waters and Ms O'Doherty had raised questions about the manner how the new laws were passed by the legislature, and in particular by an outgoing Seanad, and that it was proposed by a caretaker Government.

Ms O'Doherty, who said that the action was being brought "on behalf of the people of Ireland", described the situation as like living under "martial law".

She described the actions of the Government as something "like a coup".

During the hearing, the judge asked her to cease making what he described as speeches that were not assisting the court in the decision it had to make.

Ms O'Doherty denied making speeches and said she had a right to be heard.