Ireland: High Court: Constitutionality of Covid-19 measures upheld 4 JUN 2024

Source: Irish Legal.com

https://www.irishlegal.com/articles/high-court-constitutionality-of-covid-19-measures-upheld

Delivering judgment for the High Court, Mr Justice David Nolan stated: “It cannot be overemphasized that the reason why these remarkable and unprecedented steps were being taken, was to save lives… This step was not done on some party-political whim, or some attempted power grab, carried out by an unconscionable dictatorship. It was done to defend and vindicate the rights of citizens of the State to life and to bodily integrity, pursuant to the Constitution. These are the purest of motives and are in stark contrast to what was done in other jurisdictions, when appropriate steps were not taken, for what seems to be party political purposes.”

Background

The plaintiffs sought declarations that the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020, which amended the Health Act 1947 and regulations introduced thereafter by the Minister for Health in response to the Covid-19 pandemic which restricted people’s movement to their homes without reasonable excuse, prohibited gatherings and imposed penal sanctions for their breach, were unconstitutional.

The plaintiffs were found by gardaí attending an event in the upstairs part of a public house in North Inner City Dublin, and were served with summonses pursuant to s.1 of the Courts (No.3) Act 1986 for offences contrary to sections 31A(6) and (12) of the 1947 Act arising from breaches of the “stay at home” order pursuant to regulations 4 and 5 of SI 121/2020.

The plaintiffs alleged that they were charged with a law which did not exist or which was unconstitutional at the time that the alleged offences took place, on 17 April 2020.

The High Court

Mr Justice Nolan set out the relevant legislation and regulations, noting the plaintiffs’ claim that insufficient safeguards were put in place having regard to the constitutional imperative that criminal legislation is a matter for the Oireachtas, as encapsulated by Article 15.2.1 of the Constitution.

The court considered Cityview Press limited v IDA, the Minister for Labour and the Attorney General [1980] IR 281 as the main authority on the delegation of legislative power, which sets out that “the test is whether that which is challenged is an unauthorized delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorized; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, it would be within the permitted limits — if the law is laid down in the statute and details only are filled in or contemplated by the designated minister or subordinate body…”

Noting that newer cases such as McGowan v The Labour Court [2013] IESC 21 and Bederev v Ireland, the Attorney General and the DPP [2016] IESC 34 had made the law in this area somewhat more nuanced, the judge highlighted Mr Justice Peter Charleton’s view in Bederev in which he stated that “subsidiary legislation allows for a discretion as to how to target a particular mischief regarded as stepping outside the boundaries of what is constitutionally permissible; provided it is a mischief which has itself being sufficiently described in the parent legislation”.

Mr Justice Nolan then considered NECI v The Labor Court & Others [2020] IEHC 303 in which the Supreme Court found the ultimate test to be whether there had been a usurpation, abrogation, or trespass on the legislative power of the Oireachtas, which can only be vested or given to the Oireachtas itself — “a court is entitled to consider the purpose and effect of the provisions, the historic frame of reference within which they are to operate and the previous enactments that are required to be repealed” and “is entitled to analyze particular words within their immediate and overall context. The legislation must set boundaries, and of defining subject matter, such that those affected by the legislation could discern those boundaries, and the subject matter of the legislation.”

The High Court opined that the government at the time of the pandemic was placed in an “extraordinarily difficult” position which was made more so by virtue of the fact that a general election had taken place in January 2020 and the government was still to be formed, giving rise to a unique situation whereby the Dáil was neither in a position to elect a Taoiseach nor to comply with the constitutional requirement of completing the composition of the Seanad.

The court noted the plaintiffs’ first ground of challenge to “the effectiveness of the legislation in the context of the Seanad not sitting, because the new Seanad was not in place” and that “the regulations did not have adequate oversight from the legislative branch of the State and, in circumstances where criminal liability attached to certain matters specified by the Minister, the regulations themselves constituted an impermissible delegation of legislative function”.

The Court relied upon s.5 of the 1947 Act: “Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made (emphasis added) and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”

Mr Justice Nolan reasoned: “In my opinion given the remarkable, unprecedented, unparalleled configuration of an entirely unpredictable pandemic event together with the remarkable, if not necessarily unprecedented situation of the difficulty of forming a government, the laying of the regulation before the Seanad, on the 16th of October 2020 was ‘soon as may be after it was made’ in the circumstances, notwithstanding that the provision was revoked twenty days or so before that.”

The judge continued: “It was clearly the intention of both houses of the Oireachtas that this legislation should be put in place, for the proper and indeed constitutionally appropriate step of vindicating lives, as the preamble of the Act clearly states. It cannot be overemphasized that the reason why these remarkable and unprecedented steps were being taken, was to save lives.”

Dismissing the plaintiffs’ first ground of challenge, the High Court stated: “For the plaintiffs to come to court to say, on this particular point, that the legislation and more particularly the regulations, are somehow invalid due to an alleged technicality seems to me to be wrong.”

Turning to the second ground of challenge in relation to the insufficiency of oversight given that the minister created a criminal offence, Mr Justice Nolan found that the legislation had “manifestly clear” principles and policies, set out boundaries in the sense of defining rules of conduct or guidelines to the minister, contained conditions of fact and law, had clear objects and desired outcomes, contained clear delimitations on the delegated power, and contained various safeguards including inter alia a ‘sunset clause’ and obligations on the minister to consult with and to consider the views of experts, international health bodies and to consider the State’s economy.

Finding inter alia that to impose an obligation for a positive consideration of the subordinate legislative measure by one or more houses of the Oireachtas prior to its achieving the force of law would be an infringement on the separation of powers, Mr Justice Nolan concluded: “I do not accept the premise that a regulation which imposes a criminal sanction created by the Minister requires the imposition by the court of a specific method in dealing with delegated legislation.”

Conclusion

Accordingly, the High Court upheld the legislation and regulations as constitutional.

Ring & Ors v Minister for Health & Ors [2024] IEHC 323