Article 15 Constitutional Challenge against the Covid-19 Laws

Image of a court house

I confirm that we have initiated a peoples challenge against the unlawfulness of the Covid-19 laws – so first and foremost, we wish to thank the 2,300 odd people who have generously donated to our Go Fund Me campaign because without your support this legal challenge would not have been possible. Also, it is fair to say that given the number of donors to this campaign, that this legal action is in the public interest.

The Plaintiff in this legal action is Tracey O’Mahony and the Defendants are The Minister for Health, Ireland and the Attorney General.

Section 31A of the Health Act as amended by the Health Preservation and Protection and Other Emergency Measures in the Public Interest Act 2020 empowers the Minister for Health to make regulations for the purpose of limiting, minimising or slowing the spread of Covid-19 – it is under this authority that the Minister for Health has enacted into law regulations which have closed businesses, decided what businesses are essential and non essential, restricted travel, stopped people being legally able to visit with family, closed churches, required the wearing of face coverings and so on. The issue that we take with the Minister drafting and enacting all of these regulations is that we say it is on breach of Article 15.2.1 of the Constitution as the Oireachtas cannot delegate its legislative function to the Minister for Health.

Why do we say this? We say this because Article 15.2.1 of the Constitution states:-

“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

In Ireland we have the concept of the separation of powers. In this regard we have 3 organs of the state who are legally required to remain separate and independent from one another, in order that no one organ of the state has too much power.

The 3 branches of the state are:

  • The Legislature – which consists of Dail Eireann, Seanad Eireann and the President;
  • The Judiciary – which is the courts; and
  • The Executive – which is the Government.

In summary, this legal action challenges the authority conferred on the Minister for Health (who is part of the Executive) to make secondary legislation pursuant to section 31A of the Health Act 1947.

To date, the Minister for Health has promulgated in excess of 70 regulations using this authority and in circumstances where these regulations are some of the most far reaching in the history of the State, we say that section 31A of the Health Act 1947 is repugnant to Bunreacht na hÉireann in that it:

  1. a) confers on the Minister for Health an unconstitutional power to amend primary legislation; and
  2. b) confers on the Minister for Health an unconstitutional power to author legislation that is unrestricted by principles and polices.

This legal action has been initiated through Plenary Proceedings and could easily take 12 months or more to come before the Courts.

Finally, on behalf of Tracey O’Mahony, the ICHR and those that sit on the board of advisors to the ICHR, we wish to sincerely thank you for your support.

You have made today possible and you are the reason that tomorrow will be different.

© Copyright - Irish Council for Human Rights
The Irish Council for Human Rights is a company limited by guarantee. Registered Company Number: 683461. Registered in Ireland. Registered address at The Black Church, St. Mary’s Place, Dublin 7.
Company Directors: Tracey O’ Mahony and Neil O’Mahony.