Explaining the Supreme Court’s lockdown ruling

Yesterday, by a vote of six to one, the Irish Supreme Court upheld a decision to dismiss the challenge of the constitutionality of the laws which enabled the Irish Covid Lockdown which had been brought before the courts by former journalists John Waters and Gemma O’Doherty.

It is important to explain for readers what the court decided, and what it did not decide. For those who wish to read the majority decision in full, it may be found here.

The first thing to note is that the court did not decide, in dismissing the challenge, that the laws around lockdown were, in fact, constitutional. That is an essential point, and perhaps the single most important takeaway from these matters: No ruling has been issued on the underlying question.

That was not the question before the Supreme Court yesterday, either. In fact, lower courts had already ruled, in effect, that Waters and O’Doherty had never sufficiently argued that case in such a way that an answer might be given. Instead, the Supreme Court was asked to rule only on whether they even had a right to appeal that decision, on the basis that:

Should leave to apply for judicial review have been granted in circumstances where the applicants had failed to lay any evidential foundation by way of reports or affidavits from scientific or medical experts regarding the proportionality of the Measures (other than those amending the Residential Tenancies Act 2004 and the Mental Health Act 2001 and those alleged to impact the livelihood of the applicants) so far as they concern in particular the constitutional rights to liberty, free movement and travel (Article 40.3.1 and Article 40.4.1); the inviolability of the dwelling (Article 40.5) and freedom of association (Article 40.6)? In particular, are the Measures on their face of such clear and significant impact upon the constitutional rights of every citizen that if their validity is challenged in judicial review proceedings leave to seek judicial review should be granted? If so, does the evidential burden shift to the parties denying invalidity to demonstrate the necessity and proportionality of the Measures even if the applicants have not advanced any evidence (scientific, medical or technical) of direct impact upon any person?”

In layman’s terms, the court was trying to decide whether, on the basis that O’Doherty and Waters had not proved the laws unconstitutional, whether the burden of proof should be the other way around: In other words, should the state be forced to prove that the lockdown was constitutional, rather than Waters and O’Doherty prove that it was not?

Readers, or at least many readers, will instinctively answer that question with a resounding “yes”. But there are some problems.

First, under Irish law, acts of the Oireachtas enjoy what is called a “presumption of constitutionality”. That means that it is the convention that a law is constitutional until a court finds that it is not. A citizen or interested body with standing to take a case must prove to a court that a law is unconstitutional for that law to be struck down. This is a long-standing precedent. Second, there is already a review mechanism built into the system: If the President, and his council of state, have doubts about the constitutionality of a law, they may refer it to the Supreme Court for adjudication.

In this case, and all the related cases to it, taken by Ms. O’Doherty and Mr Waters, no court has actually ruled that the lockdown laws were constitutional. They have ruled, at various stages and in various ways, that Ms. O’Doherty and Mr. Waters did not, in plain language, argue their case correctly, or well. Which might perhaps be expected of lay litigants.

For example, O’Doherty and Waters repeatedly asserted that the lockdowns were based on “fraudulent science”. This, the courts correctly noted, is not a constitutional argument, but a political one.

Indeed, it is worth noting that the courts actually offered representation – free of charge – to O’Doherty and Waters, who declined it. This paragraph from yesterday’s ruling is notable, and should be read, and read again, and then read a third time by those who think O’Doherty and Waters were hard done by:

In these proceedings, the applicants represented themselves and have prepared extensive pleadings and submissions. This Court, on granting leave to appeal, invited the applicants to avail of the ad hoc scheme set up by the Law Society and Bar Council at the suggestion of the Court, under which solicitors and counsel make their services available to unrepresented litigants on a pro bono basis in those cases where leave to appeal to the Supreme Court has been granted. This is an admirable system and reflects the fact that leave is only granted in cases where the appeal contains a point of law of general public importance or in the interests of justice. It is regrettable that the applicants in this case did not avail of that facility, and that 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.

What the court is saying there is that “we would have liked to have an informed legal debate on these issues, but we could not have one”. The fact that O’Doherty and Waters chose not to avail of lawyers, even when offered for free, and instead just stuck to their “fraudulent science” mantra, does not speak well of their seriousness as litigants.

There is a fundamental difference between making a serious argument that something is unconstitutional, and simply going into court to shout at various judges about fraudulent science. The Supreme Court didn’t just get this one right – they made the only decision that they could, in the circumstances. What they did not do, however, was uphold the lockdown. Those who claim that they did, and that the courts are “corrupt”, or whatever, are making a self-serving argument to cover their own failings. It’s important that people know that.

Corrupt courts do not offer you free lawyers to make an argument.

We should, in fact, be grateful to the court: If the Irish courts were truly “corrupt”, as some have alleged, then they could easily have used this very weak case as a pretext to uphold the lockdown in full, precluding any future legal challenges to similar laws. But they have not done so, so nothing in yesterday’s ruling, or any prior ruling in this case, precludes a more comprehensive legal challenge to similar laws being taken at a later date.

Attempts to contact John Waters yesterday for comment on this story were unsuccessful.

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