Why no coherent legal challenge to restrictions?

political analyst · 20-10-2020 9:42am #1

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.

Rodin · 20-10-2020 9:45am

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?

political analyst · 20-10-2020 9:50am

Rodin wrote: »

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

I'm not a lawyer. But I'm sure that any solicitor who is asked about a possible legal challenge to restrictions would find some grounds for such a case.

seamus · 20-10-2020 9:51am

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.

Gregor Samsa · 20-10-2020 10:01am

political analyst wrote: »

I'm not a lawyer. But I'm sure that any solicitor who is asked about a possible legal challenge to restrictions would find some grounds for such a case.

This doesn't sound like the beginning of a coherent legal challenge to the restrictions anyway.

Russman · 20-10-2020 10:05am

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.

Gregor Samsa · 20-10-2020 10:13am

Not all the restrictions are actually law at all. Some are just guidelines that we are being encouraged to follow - there's no legal or constitutional implications in those cases.

Here's a breakdown of what's currently backed up by legislation and what's not:

https://www.irishtimes.com/news/crime-and-law/policing-covid-19-what-enforcement-powers-do-garda%C3%AD-have-1.4359618

Beanybabog · 20-10-2020 10:18am

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 · 20-10-2020 10:18am

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

Gregor Samsa · 20-10-2020 10:21am

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.

political analyst · 20-10-2020 10:28am

Beanybabog wrote: »

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.

If your livelihood was in peril because of a lockdown then being accused of aligning yourself with those lunatics would be the least of your concerns. If you win the case then nothing else matters. Either you win or you lose.

canonball5 · 20-10-2020 10:28am

Gregor Samsa wrote: »

Under which specific section?

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

banie01 · 20-10-2020 10:31am

canonball5 wrote: »

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

Article 28.3.3 would be the likely defence against any such case.
There is a broad political and scientific consensus that we are in an emergency. Whilst pandemic may not be the nature of the existential threat to the state originally envisioned.
It nevertheless provides the state with a broad slate to suspend protections.

Interesting article here on the state of play.

Gregor Samsa · 20-10-2020 10:33am

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.

canonball5 · 20-10-2020 10:35am

banie01 wrote: »

Article 28.3.3 would be the likely defence against any such case.
There is a broad political and scientific consensus that we are in an emergency. Whilst pandemic may not be the nature of the existential threat to the state originally envisioned.
It nevertheless provides the state with a broad slate to suspend protections.

Interesting article here on the state of play.

That's an interesting point but I really don't see how that argument would stand up. It would really come down to your understanding of a national emergency. More men died of suicide this week than have died of Covid in the same time period.

Heebie · 20-10-2020 10:36am

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.

Borderfox · 20-10-2020 10:39am

Its mandatory but not compulsory ;-)

seamus · 20-10-2020 10:41am

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.

Eduard Khil · 20-10-2020 10:42am

The fact that the three parties in control currently ignored advice to go to a higher level of restrictions recently but have now gone to the highest level country wide but are also tailoring it begs the question of what options remain now if these measures fail.

ArthurDayne · 20-10-2020 10:43am

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”.

banie01 · 20-10-2020 10:45am

canonball5 wrote: »

It would really come down to your understanding of a national emergency.

No, not my understanding. The actions of the Oireachtas in declaring it as such.
It would be for any challenging party to refute the basis of the Oireachtas' actions.

They would need to disprove the scientific consensus.
Disprove the perceived/Stated risk to Public Health and then present a case that proves the Government overstepped the constitutional provisions of their emergency powers.

We are beyond mere opinion, we are dealing with consensus.
Whilst there are opinions that differ on the actions available, alternative and safe plans represent options that are not timely or immediate.
Any successful challenge will be predicated on meeting and refuting all of the above.

canonball5 · 20-10-2020 10:45am

Gregor Samsa wrote: »

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.

I believe the wording of Constitution was expressed that way as to refer to arrests or warrants etc. I don't think it was as away to control and manipulate people. Either way, you points are interesting and food for thought.

banie01 · 20-10-2020 10:54am

canonball5 wrote: »

I believe the wording of Constitution was expressed that way as to refer to arrests or warrants etc. I don't think it was as away to control and manipulate people. Either way, you points are interesting and food for thought.

No article of the Constitution stands alone nor should they be read or interpreted in isolation from the entirety of the text.

The suspension of rights is prerogative power granted to the Oireachtas in times of emergency and the provisions of Article 28 when invoked directly and lawfully impinge on the rights both enumerated and unenumerated.

CalamariFritti · 20-10-2020 10:58am

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.

trixi001 · 20-10-2020 10:59am

Heebie wrote: »

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.

I think you will find lots of people are against them - and not necessarily for the reasons you mentioned

People who have lost loved ones to suicide due to the restrictions
People who have serious mental health issues either due to or exacerbated by the restrictions
People who can't speed time with loved ones in hospital or care homes - especially as the time left to spend with these ones is often extremely limited
People who have lost their livelihood due to the restrictions
People who live alone - often with most of their family abroad where they aren't allowed to visit
People who need the swimming pools/gym - swimming is often part of rehabilitation following injury/surgery etc
New Parents - fathers not being able to spend any (extremely minimal) time with their new child
People who have lost or will lose their homes due to not being able to work
Cross Border workers - who despite working full time in the south and paying taxes in the South, but who live in the North - aren't entitled to PUP

I once read that 10% of people over 80 die annually, so as its looking likely that these restrictions that this 10% will have spent there last year not surrounded by their nearest and dearest.

I once read that it was decided by a court that only war constitutes an emergency in terms of the constitution - so this is not a period of emergency, and the "normal" rights under the constitution remain. (Not sure of the source of this though)

It is worrying that people are willing to give away their rights without even questioning it. I am not saying the restrictions are right or wrong, just that questioning them is ok.

My major issue with the restrictions is the 5k limit - its unnecessary and imo discriminatory to rural dwellers - city/town dwellers often have friends and families withing the 5km, so can still meet them outside and keep up spirits and therefore not find this so difficult - rural areas not so much, there is still plenty plenty of places which barely even have another house within 5km!

Gregor Samsa · 20-10-2020 11:04am

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.

Gregor Samsa · 20-10-2020 11:12am

trixi001 wrote: »

It is worrying that people are willing to give away their rights without even questioning it. I am not saying the restrictions are right or wrong, just that questioning them is ok.

I'm not sure why you think that people aren't questioning it. It's been one of the major topics of conversation amongst people, and dominated the media, for the past 7 months. You said yourself a lot of people are against them. That doesn't mean the people that are for them haven't questioned them.

One shouldn't confuse questioning with dissent. It's quite possible to assess the situation, weigh up both sides of the argument, and come to the conclusion that the restrictions are justified.

tHE vAGGABOND · 20-10-2020 11:29am

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]

seannash · 20-10-2020 11:35am

canonball5 wrote: »

That's an interesting point but I really don't see how that argument would stand up. It would really come down to your understanding of a national emergency. More men died of suicide this week than have died of Covid in the same time period.

Have you stats to back up the suicide claim.
Last year 421 people died of suicide.
I know there is a feeling that suicide has gone through the roof since Covid but do we have any stats to back this up.

trixi001 · 20-10-2020 11:38am

Gregor Samsa wrote: »

I'm not sure why you think that people aren't questioning it. It's been one of the major topics of conversation amongst people, and dominated the media, for the past 7 months. You said yourself a lot of people are against them. That doesn't mean the people that are for them haven't questioned them.

One shouldn't confuse questioning with dissent. It's quite possible to assess the situation, weigh up both sides of the argument, and come to the conclusion that the restrictions are justified.

Granted - but a lot of people i have talked too, have not even considered the other side - they accept the restrictions without question, and don't even consider that the restrictions have massive negative affects.

Its almost like a religion - blind faith!

seannash · 20-10-2020 11:48am

trixi001 wrote: »

Granted - but a lot of people i have talked too, have not even considered the other side - they accept the restrictions without question, and don't even consider that the restrictions have massive negative affects.

Its almost like a religion - blind faith!

Give us your plan.
And to add whatever your plan is we are allowed to tell you its ridiculous and doesn't work just like people are allowed to say tha about the government plan.
Sometimes what you call blind faith is people listening to expert opinions, The news, reading online and making a decision based on that. Just because they might not entertain your interpretation doesn't mean they are blindly following. Perhaps they know you just wont accept their conclusion so they don't debate you.

Why no coherent legal challenge to restrictions?

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