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07 Dec 2021

High Court told State is to oppose challenge by Gemma O'Doherty and John Waters against Covid-19 laws

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High Court told State is to oppose challenge by Gemma O'Doherty and John Waters against Covid-19 laws

The Four Courts, Dublin

The State is to oppose a High Court challenge brought by John Waters and Gemma O'Doherty against laws introduced by the state arising out of the Covid-19 pandemic.

They claim that the laws are flawed and unconstitutional and want them struck down.

In judicial review proceedings against the State and the Minister for Health they seek to have various pieces or recently enacted legislation declared null and void by a judge of the High Court.

The legislation challenged includes the 2020 Health Preservation and Protection and Other Emergency Measures in the Public Interest Act, the 2020 Emergency Measures in the Public Interest Act Covid-19 Act, The 1947 Health Act (Affected Areas) Order.

Their proceedings are also aimed at striking down temporary restriction regulations brought due to Covid-19 under the 1947 Health Act. 

The action against what they claim are laws is against The Minister for Health, Ireland and the Attorney General.

Last week the High Court directed that the journalists' application for permission to bring the challenge be heard on notice to the state parties.

The matter was listed for mention before Ms Justice Deidre Murphy on Tuesday morning.

Gerard Meehan Bl for the State told the court it will oppose the application for leave to bring the challenge.

Counsel asked the court to adjourn the case for two weeks to prepare a sworn statement in response to what is a "quite substantial" challenge.   

In the current climate counsel said while the State has been working on its response things were taking longer to get done, particularly when when trying to work with with persons in the Department of Health.

Counsel also told the court given that part of the challenge concerns how the laws in question were enacted the Dail, the Seanad and the Ceann Comhairle would have to be added to the proceedings as notice parties.

Counsel said that as well as hearing from the notice parties, legal submissions might also be required as part of the leave application. 

In light of that counsel asked that the matter be listed for mention in two weeks time.

The applicants, while not objecting to the addition of the notice parties, expressed strong concerns about the state's application regarding the adjournment and said the leave application needs to be heard as soon as possible.

Mr Waters told the court that the state parties were attempting to "filibuster" "procrastinate" and delay what he said is a very important matter.  

Outlining the nature of the action Ms O'Doherty said what was happening regarding the lockdown was "outrageous".

She said people were being held under mass house arrest, or fear being interrogated by the Gardai if they leave their homes.

People she said should be allowed go about their business and normal life must be allowed resume.

The vast majority of people are unaffected by covid-19, which she said was "no threat to life", and that the Irish people should be allowed to go outside and "build up a heard immunity."

Ms O'Doherty added that expert medical evidence supporting her claims will be presented to the court as part of the case.

Ms Justice Murphy told Ms O'Doherty that the court was not considering what were substantial arguments in the action, but was making directions with a view to getting the application heard.

The judge said that she accepted that the leave application raised issues that needed to be heard. The judge said that the leave hearing should be heard in two weeks time.

The judge also adjourned the matter for a week, when it is to be mentioned before the court to see how the parties are getting on.

Earlier in the proceedings both the applicants questioned if the proceedings were being held in public.

Up to 100 supporters of the two gathered in the Round Hall of the Four Court's but were not permitted to enter court due to social distancing guidelines introduced by the Chief Justice and the Presidents of the Courts arising out of the Covid-19 pandemic.

An application to let, some or all of those persons into the courtroom was dismissed by the Judge.

The judge said the case was being heard in public and was being reported on by the media.

The judge said that not everyone could fit into a courtroom, and wondered if a larger than capacity group wished to attend a hearing should the court be moved to the "National Convention Centre."

The applicants expressed their dissatisfaction over the court's decision.

The Judge said that a Digital Audio Recording of Tuesday's proceedings should be made available to the applicants.

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