Why no coherent legal challenge to restrictions?

political analyst wrote: »

In Britain, the businessman Simon Dolan has challenged Covid restrictions in the courts. In the Australian state of Victoria, there have been several cases taken against restrictions.

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

Sunetra Gupta might be willing to give evidence via video-link to support such a case here.

After all, either we have constitutional rights or we don't.

Which article of the constitution do you feel is being violated?

There is, in general, no conflict between the Irish constitution and the restrictions. Contrary to popular belief, consitutional rights are not absolute rights. They can be limited by law as necessary for the public good. After all, you have the right to freedom, except when you're in jail.

Where certain measures are enacted temporarily during a crisis, this is allowed and supported by the constitution provided that the measures are proportionate and necessary.

E.g. instituting martial law or jailing people without trial would not be consitutional even in a public health emergency, but restricting them to certain activities and locations, is.

Is this a case of you not liking the restrictions and they're an awful inconvenience, so therefore your rights have to be infringed ?

Nobody likes them and they are indeed an awful inconvenience, but I think/assume the AG will have vetted the legislation.

Ryanair took a Judicial Review of the travel advice which they lost. I was surprised given the “mandatory” nature of the quarantine for civil servants but the judge commented he didn’t deal with all those issues. I imagine if someone took a case about having to take annual unpaid leave for 2 weeks for not following advice that’s not mandatory they’d have a good case.

I recall reading a restaurant / hotel group was issued proceedings against level three restrictions recently.

I suspected if the government tried to implement penal measures, as they claimed they would, enforcing visitor limits in people’s home a case would have been taken. But they rowed back on that pretty fast.

Constitutional rights aren’t absolute but any limitations should to be proportionate and with a clear aim. The government have issued a lot of advice dressed up as mandatory rules to avoid having to legislate on very tricky issues. If they attempted to make all the guidelines law with penalties I’m sure we’d see some more cases.

Odoherty and waters ruined it for all of us in my opinion. By bringing such an ill prepared case, and being who they are, people are almost afraid to question the measures because they don’t want to align themselves with the lunatic fringe. Which is a great loss for all of us... no matter what your opinion on restrictions is, a legal challenge benefits us all because we know the correct checks and balances are there.

canonball5 wrote: »

I'm amazed nobody has taken a legal challenge against these restrictions under Article 40 of the Constitution.

Under which specific section?

For instance, 40.6.1 ii guarantees

"The right of the citizens to assemble peaceably and without arms.".

Which on the face of it, would prevent a law from restricting public gatherings of any kind.

But it then goes on to say:

"Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House"

The allowance of those provisions to prevent or restrict public gatherings seem broad enough to allow for legislation to do so in the case of a public health crisis like this.

canonball5 wrote: »

Article 40.1 when they started locking down counties for example.

Article 40.6.1 (ii) the right to assemble and meet peacefully.

Article 40.4.1

Sorry, I edited and expanded my response before you replied.

See my post above regarding 40.6.1 (ii). It allows for the legal restriction of assembly under a fairly broad set of criteria.

As for 40.4.1, it states

"No citizen shall be deprived of his personal liberty save in accordance with law."

Which explicitly means that laws can be passed to restrict citizens of their liberty. As mentioned above, under the Constitution, liberty is not an absolute right.

political analyst wrote:

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

I would think because we don't have anyone who has enough money to mount such a challenge... and is simultaneously stupid enough to think that the restrictions are unnecessary.

Restrictions are being put in-place to save people's lives, full stop. The only people who are "against" these restrictions are ignorant idiots who should be ignored and shunned, rich people who want non-rich people to risk their lives making money for the rich, and sheep ignorant enough to follow either or both the first two groups.

If you're not the rich guy, you're shooting yourself in the foot. If you are the rich guy, you're shooting everyone else in the face.

Beanybabog wrote: »

Odoherty and waters ruined it for all of us in my opinion. By bringing such an ill prepared case, and being who they are, people are almost afraid to question the measures because they don’t want to align themselves with the lunatic fringe.

Not at all. Any legal professional who thought there was a coherent case to answer would take it on. Reputation is important, but only insofar as they don't take on ridiculous cases.

The GoFundMe linked above is a grifter who has no ability to take any case on, she's been conning people out of money for months.

seamus wrote: »

There is, in general, no conflict between the Irish constitution and the restrictions. Contrary to popular belief, consitutional rights are not absolute rights. They can be limited by law as necessary for the public good. After all, you have the right to freedom, except when you're in jail.

Where certain measures are enacted temporarily during a crisis, this is allowed and supported by the constitution provided that the measures are proportionate and necessary.

E.g. instituting martial law or jailing people without trial would not be consitutional even in a public health emergency, but restricting them to certain activities and locations, is.

There are other nuances to take into account though on this. Even if crisis powers are invoked in a situation that the courts would agree is a crisis, the nature of their implementation can still be open to challenge.

I would say one potential grounds for constitutional challenge (and it is one that has been raised by several legal academics, the Law Society of Ireland, FLAC and the Irish Council for Civil Liberties) would be the manner in which restrictions were communicated to the public — i.e. the portrayal of mere guidelines as being law.

For the rule of law to be meaningful, there must be high degrees of clarity for citizens as to what is prescribed by law and what is not. Throughout the pandemic, there has been widespread uncertainty as to what measures are actually legally binding (or enforceable by An Garda Síochána), how they apply in different scenarios, and the consistency of rationale behind that application. Travel for example was one particular area where confusion reigned — whereby quarantining was presented in a manner that made it look like a legal obligation. The recent guidelines on not leaving Dublin, backed up by checkpoints manned by Garda with no enforcement power, are another example.

There is a suspicion, and I must say I personally find it a compelling one, that the government deliberately flirted with a strategy of confusing Irish citizens on their civil liberties in an attempt to maximise compliance. Regardless of what one thinks about the effectiveness of that tactic, it is still problematic from a constitutional standpoint. As Prof. David Kenny of TCD neatly puts it:

“uch a strategy raises serious rule of law concerns, and has real costs. It confuses members of the public; erodes public trust in communication about the law; and is an abuse of State power, implying a legal threat that does not exist”.

seamus wrote: »

There is, in general, no conflict between the Irish constitution and the restrictions. Contrary to popular belief, consitutional rights are not absolute rights. They can be limited by law as necessary for the public good. After all, you have the right to freedom, except when you're in jail.

Where certain measures are enacted temporarily during a crisis, this is allowed and supported by the constitution provided that the measures are proportionate and necessary.

E.g. instituting martial law or jailing people without trial would not be consitutional even in a public health emergency, but restricting them to certain activities and locations, is.

I dont know the constitution tbh. But if anything the bold part is where something may lead to. So far few if any of the restrictions have had any scientific evidence behind them but were mostly shots in the dark. My personal opinion is that this isn't good enough where such far reaching restrictions are concerned. We all agree there is a threat but the way it has been handled could set a dangerous precedent where we can all get locked up on whim basically. Some may argue that is already after happening.

ArthurDayne wrote: »

I would say one potential grounds for constitutional challenge (and it is one that has been raised by several legal academics, the Law Society of Ireland, FLAC and the Irish Council for Civil Liberties) would be the manner in which restrictions were communicated to the public — i.e. the portrayal of mere guidelines as being law.

I fully agree with you that this communication has been very poor and confusing.

But I'm not sure that it would be grounds for a Constitutional challenge. By their very nature, those guidelines aren't backed up by legislation. Therefore there's no law to bring a Constitutional challenge against. Not every utterance from the Government has to be backed up by legislation, and there's nothing in the Constitution that prohibits guidelines from being issued. It's not like you could bring a Constitutional challenge against the Food Pyramid or the guideline regarding 30 minutes of moderate physical activity a day.

If the Government had actually specifically claimed that attending a family gathering in a house was unlawful when it isn't, then there would be grounds to challenge the claim that it is law - but not the guideline itself. I don't think the Government actually went as far as to make claims like that, but even if they did, the best you could hope for is to force them to clarify the legal situation, not to withdraw the guideline itself.

A dad of one of my kids mates is a senior council top legal person [pardon me for not really giving a **** what the offical title is!], and he said the case the two muppets brought against the last lockdown had serious merit and was pretty spot on [according to the law as it stands; rather than emotion or opinion]. He was of opinion [in a playground, not in his work to be fair] - that a serious legal person would have won...

But as he said, the law can change and if motivated, the government could change it today [and maybe they have since then already]

Gregor Samsa wrote: »

I fully agree with you that this communication has been very poor and confusing.

But I'm not sure that it would be grounds for a Constitutional challenge. By their very nature, those guidelines aren't backed up by legislation. Therefore there's no law to bring a Constitutional challenge against. Not every utterance from the Government has to be backed up by legislation, and there's nothing in the Constitution that prohibits guidelines from being issued. It's not like you could bring a Constitutional challenge against the Food Pyramid or the guideline regarding 30 minutes of moderate physical activity a day.

If the Government had actually specifically claimed that attending a family gathering in a house was unlawful when it isn't, then there would be grounds to challenge the claim that it is law - but not the guideline itself. I don't think the Government actually went as far as to make claims like that, but even if they did, the best you could hope for is to force them to clarify the legal situation, not to withdraw the guideline itself.

Yes, though there haven’t been Garda checkpoints set up to ask citizens whether they have done their 30 minutes of exercise that day. I don’t think it’s a particularly valid comparison, as the gravity afforded to government messaging around 14 day quarantine limits, travel outside certain zones, cocooning etc during the pandemic has infinitely outweighed simple everyday messaging on healthy lifestyles etc. It’s not the “mere utterances” that are the problem, but the potentially deliberate deception as to what is legal and what is not. It is a requirement under Irish law, EU law and the European Convention on Human Rights that there is certainty as to the nature of obligations placed on citizens. If the government considers measures to be so important, and communicates them in such a way as to be mandatory, then they need to be on satisfactory legal footing so that citizens understand what their obligations are.

I mean, it’s perfectly obvious to citizens that 30 mins exercise is not a legal requirement — but I think it’s a stretch to pretend that there was not at least some degree of assertion (and with that, widespread perception) that there was legal weight behind the guidelines. There is evidence to suggest that there was a deliberate nature to that. There has been much criticism in legal circles of the delays in publishing the content of regulations even after they come into effect, which does reek of a deliberate ploy to confuse. I work in a law firm myself and with all our resources and know-how on quickly finding legal material it still took digging by trainees to actually dredge up the regulations, which were often difficult to locate (again, after coming into effect). In fact, the government never even declared a constitutional state of emergency as this power can only be exercised in war or rebellion. Instead, legislation which was merely described as emergency legislation was introduced — but this legislation has no special status.

There are certainly grounds for legal challenge under the established law on clarity of legal obligations. In fact, the Special Committee on Covid 19 Response has heard evidence on from senior legal figures and there was plenty of food for thought on the legality / constitutionality of the State’s approach. From my own personal critical opinion, my two questions are: (1) did the State deliberately blur the lines on legality to confuse people into compliance?; and (2) if the State saw the guidelines as being so fundamentally important for public health, why were they not given legal footing?

canonball5 wrote: »

Article 40.1 when they started locking down counties for example.

Article 40.6.1 (ii) the right to assemble and meet peacefully.

Article 40.4.1

Why did you only include one line of 40.6.1 (ii)

You excluded:

Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.

Billgirlylegs wrote: »

It's a bit of a stretch to argue that a group of people meeting in a public place is a danger to the general public.
Might increase the risk of someone catching it, but putting that person in danger?

Not sure everyone would agree with you on that one. I don't think it would be difficult to argue that increasing the risk of spreading it is a danger to the general public. To cause "danger" just means to potentially cause harm - it's a matter of increased risk rather than necessarily causing actual damage. It doesn't have to mean certain death is caused.

In any case, "danger" is only one criteria. Mere "nuisance to the general public" is also grounds to prevent or control such meetings. Rather than it being a stretch, it's pretty broad.

political analyst wrote: »

In Britain, the businessman Simon Dolan has challenged Covid restrictions in the courts. In the Australian state of Victoria, there have been several cases taken against restrictions.

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

Sunetra Gupta might be willing to give evidence via video-link to support such a case here.

After all, either we have constitutional rights or we don't.

Possibly because Gemma O’Doherty and John Waters were left facing a significant legal bill after the High Court ruled they must pay the costs of their failed attempt to challenge laws brought in due to Covid-19.

https://www.irishtimes.com/news/crime-and-law/courts/high-court/o-doherty-and-waters-ordered-to-pay-legal-costs-of-case-against-state-over-covid-19-laws-1.4270600

That case also tested the waters and potentially could be used as a judgement in any other challenge taken

I also don't believe any such case will be successful or is a particularly good idea

gozunda wrote: »

That case also tested the waters and potentially could be used as a judgement in any other challenge taken

I doubt that any precedent was set by two loons ranting. Their case was prevented from reaching a full hearing in front of the High Court because they didn't even attempt to form an actual case, didn't attempt to present any expert opinion, didn't engage with the court properly and just talked nonsense about Nazi Germany. They didn't even manage to get over the fairly modest hurdle of having a coherent argument for their case. Anybody who could do those basic things would at least get themselves in front of a proper HC sitting.

political analyst wrote: »

In Britain, the businessman Simon Dolan has challenged Covid restrictions in the courts. In the Australian state of Victoria, there have been several cases taken against restrictions.

So why has there been no coherent legal challenge to restrictions in Ireland? There must be people who have enough money for such a case and who would be able to make better arguments than Waters and O'Doherty did.

Sunetra Gupta might be willing to give evidence via video-link to support such a case here.

After all, either we have constitutional rights or we don't.

They come from recent amendments to the 1947 Health Act, the Constitution is not involved. Those amendments were approved by the Dail.