Almost two years after the Covid-19 pandemic triggered emergency government measures that radically changed our lives as we had lived them, there is still no meaningful court ruling on the legal status of the regulations. /restrictions/directives that made this temporary change.
This week’s district court acquittals of four men on charges stemming from the Golfgate controversy, an outcry that itself has shed light on regulatory confusion, has not changed that.
Attempts to challenge the legality of the Covid-19 measures in the High Court have not taken off at all, such as the refusal to allow Gemma O’Doherty and John Waters to seek judicial review, or they have come up against the ground each time the contested measure was lifted.
Developer Paddy McKillen jnr’s challenges regarding restrictions on the operation of most of the construction industry, by the Restaurants Association of Ireland regarding indoor dining allowed in hotels but not restaurants, and by businessman Declan Ganley regarding restrictions on public worship all fell into this second Category.
Although a judicial review appeal by Ryanair over the government’s “advice” against international travel did in fact proceed to a hearing, culminating in a ruling that the advice did not exceed the power of the executive, the High Court judgment was limited in scope as it only advice concerned.
The district court’s Thursday dismissal of charges against independent TD Noel Grealish, former Fianna Fáil senator Donie Cassidy and two hoteliers, John and James Sweeney, for hosting an Oireachtas Golf Society dinner in August 2020 in violation of Covid-19 regulations brings little clarity to the state of these regulations.
Judge Mary Fahy found that organizers had done all they could to comply with the rules, which called for a maximum of 50 people at indoor events, and had in fact complied with the rules. She discovered that there were two separate events at the Station House Hotel in Clifden and, following a partition erected in one room of the hotel, the 81 people attending the event were accommodated in two separate areas . The judge said she had a reasonable doubt and dismissed the charges.
The outcome of the case was largely predicted in advance by lawyers, many of whom were skeptical that there was sufficient evidence to support convictions.
Mr Justice Séamus Woulfe, the Supreme Court Justice who attended the Oireachtas Golf Society event, was among several prosecution witnesses who said they believed the event was within guidelines and several Legal sources believe the district court result upheld his subsequent refusal to resign. his position. “Judge Woulfe looks a lot happier this week,” a lawyer observed on Friday.
A former attorney general, Justice Woulfe was appointed in July 2020 to the Supreme Court but, following furor over Golfgate a month later, did not sit on court until February 2021. He apologized very early for his presence.
A report by former Chief Justice Ms Susan Denham expressed the view that he should not have attended for reasons of convenience, but said asking for his resignation would be disproportionate. An informal resolution process set up by the Supreme Court then ran into difficulty and resulted in an extraordinary release of correspondence from then-Chief Justice Frank Clarke expressing the view that the Judge Woulfe should resign and the judge refusing to do so.
Lawyers remain split on whether Judge Woulfe should have attended the Oireachtas Golf Society event. Some are firm believers that, regardless of the pandemic, judges should not attend events that could be perceived as politically connected and also argue that the judge could have handled the consequences better.
Regardless of their opinion on whether or not the judge should have attended the event, many lawyers believe that asking for his resignation was unnecessarily divisive and disproportionate. Everyone The Irish Times spoke to this week was adamant that the controversy was well and truly over and it was ‘business as usual’ at the Supreme Court.
“The judges are mature professionals, they know they don’t need to like each other to work together and they work together. Golfgate is over,” according to a senior source.
It may be over, but concerns remain about what David Kenny, associate professor of law at Trinity College Dublin Law School, describes as the “repeated blurring of lines over the past two years” between what is right and what is guidance.
“This blurring of lines is deeply problematic. From a rule of law perspective, legal obligations must be clear.
While stressing that he was very sensitive to the need for the government to act quickly in response to the public health crisis posed by the pandemic, Dr Kenny believes that the lack of clarity has worsened as the pandemic progressed. He worries about the potential impact. “There is a real risk, if you mislead people about what the law is, they will stop taking it seriously.”
Dr Kenny, who was one of the co-authors of a 2021 report from the TCD’s Covid-19 Law and Human Rights Observatory that reviewed four laws and more than 65 sets of enacted regulations between March and December 2020 in response to the pandemic, said he was “astonished at the little law” resulting from the emergency measures put in place over the past two years.
“I would never have expected, in my lifetime, to see such extraordinary measures without judicial review.”