Barrister Tracey O’Mahony launches lockdown challenge

The text of Article 15.2 of Bunreacht nah Eireann, the Irish constitution, is set to form the basis of a case taken by Barrister and Activist Tracey O’Mahony, which seeks to challenge the constitutionality of almost every lockdown restriction enacted by the Irish Government, Gript can reveal.

In court documents lodged this week, which have been seen by Gript, Ms. O’Mahony, through her legal team, sets out a series of challenges to Section 31A of the Health Act of 1947. Section 31A is the emergency legislation, inserted by the Health Act of 2020, which empowers the Minister for Health, as well as other Ministers, to “make regulations providing for the prevention of the spread of an infectious disease”.

The section of the Act being challenged by Ms. O’Mahony reads as follows:

The Minister may make regulations providing for the prevention of the spread (including the spread outside the State) of an infectious disease or of infectious diseases generally and for the treatment of persons suffering therefrom and the regulations may, in particular, provide for any of the matters mentioned in the Second Schedule to this Act.

Ms. O’Mahony’s legal documents declare that she will be seeking a declaration from the courts that this section of the legislation is at variance – in legal terms “repugnant to” – Article 15.2 of the Constitution.

That article reads:

the sole and exclusive power of making laws for the state is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the state”

While specific legal arguments have not been made at this very early stage of the case, it is very clear what O’Mahony’s argument will be: She will contend to the court that by granting the power to Ministers to make regulations, which have the force of law, the Dáil and Seanad unconstitutionally gave up the power to make laws and regulations themselves.

This is an argument with merit, though it is by no means guaranteed to succeed. This very issue, in fact, has been the subject of much legal scholarship in the United States, in recent years, with conservative judges, in particular, repeatedly striking down regulations and laws made by Government Agencies on the basis that the laws and regulations were never explicitly approved by Congress. So, for example, many Judges – including several on the US Supreme Court – have argued that the Environmental Protection Agency cannot just set new limits on Car Emissions, because it is not elected. Under their interpretation, every new rule such an agency makes must be voted on by Congress, which has the sole power to make laws. It is not an argument which has formed the basis of a high profile case in Ireland, at least until now.

In Ireland, the argument will likely go, the sole power to make laws is vested with the Dáil. That means that if you, an ordinary citizen, are told, for example, that you cannot go further than 5km from your home in the course of taking exercise, then you have a right to expect that such a regulation has been voted on and adopted by your elected representatives. But of course, as it happens, the Dáil has never voted on that particular rule, or many others like it.

What’s happened instead is that the Dáil passed what you might call an empowering act, granting the Government, through its Ministers, the power to make whatever laws they liked in the name of stopping the pandemic, without having to have those laws individually approved in the Dáil. Ms. O’Mahony’s case will likely argue that this is explicitly unconstitutional: The Dáil, and the Government, are two separate entities. In normal times, if the Government wants to do something, it must pass it through the Dáil. Bypassing that step, she will say, makes everything done by the Minister unconstitutional.

The State will argue, in response to Ms. O’Mahony, that delegating power in this way is a perfectly legitimate way for the Dáil to act. For example, they will say, the Dáil de facto approved of the regulations made by the Minister because it retained the power to dismiss the Minister at any time, or to take away his powers at any time. The state’s likely argument, in other words, will be that the Dáil clearly approved of these laws, and therefore that constitutes “making” them. It’s also fair to say that Irish Judges may be more sympathetic to this argument, and to giving the state wider latitude, than Judges in other jurisdictions, as we saw last week with the High Court’s decision to uphold last year’s leaving cert grading process on the basis that the state had few other options.

One thing, though, should be made clear: Unlike certain other cases taken by lay litigants to challenge the lockdown regulations, this is a serious argument, made by serious lawyers. It mirrors genuine and interesting legal issues raised in other jurisdictions. If Ms. O’Mahony succeeds, then her case will have implications not just for the lockdown, but for the way the country is governed in general. The argument she makes is a serious and credible one.

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