The Supreme Court has said it will hear an appeal brought by Gemma O’Doherty and John Waters against the dismissal of their challenge to the constitutionality of laws introduced in response to the Covid-19 outbreak.
Chief Justice Donal O’Donnell, Ms Justice Marie Baker and Mr Justice Gerard Hogan granted permission to have the appeal heard on a limited basis by the Supreme Court. No date has been fixed yet.
The applicants had previously sought a judicial review claiming legislative measures introduced in response to Covid-19 as unconstitutional and flawed.
Mr Waters said that the hearing gave the appellants “the opportunity to appeal to the Supreme Court the decisions of the lower courts not to grant us leave for Judicial Review, essentially overturning those decisions and allowing us to confront the government with the onus on them to demonstrate that the lockdown was justified and proportionate.”
“The decision was made by a panel of the Supreme Court, including the Chief Justice, which has offered us a full hearing in that court next year to inquire into the rejection of our application,” he said, adding that the three person panel found that the appellants had raised important issues of a constitutional nature.
In March, the Court of Appeal (CoA) dismissed their appeal against the High Court’s decision not to grant them leave to bring their action on the basis it was “misconceived and entirely without merit”. They were ordered to pay the legal costs.
The Supreme Court will hear Ms O’Doherty’s and Mr Water’s appeal to determine if leave to apply for judicial review should have been granted – and in particular if the Covid-19 measures are of “such clear and significant impact” upon the constitutional rights of every citizen that a judge should grant leave for them to be challenged by way of judicial review.
The Supreme Court accepted at the level of principle that the matters sought to be raised concerning the limitations on rights and the proportionality of the measures are “of general legal importance”.
The judges did note that the applicants had failed to satisfy the High Court and, on appeal, the Court of Appeal, that they had adduced “even the minimum evidence to support their application”.
However, the Court said the appeal does raise questions of general public importance including the constitutional rights to liberty, free movement and travel, the inviolability of the dwelling and freedom of association.