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Article 15 Constitutional Challenge Against the Legality of the Covid-19 Laws

Status of Proceedings

On the 2nd of March 2021, we initiated a peoples challenge against the unlawfulness of the Covid-19 laws – this legal challenge was only made possible through donations from some 3,300 people (thus highlighting the fact that this legal challenge is in the public interest).

On the 22nd of March 2021, the Defendants entered an Appearance, thereafter on the 23rd of April we issued our Statement of Claim. On the 13th of May 2021, the Defendant issued Notice for Particulars, to which we responded on the 20th of August 2021. On the 6th of October 2021, we issued a 21 Day Warning Letter for Judgement in Default of Defence, to which the Defendants responded on the 1st of November 2021 by issuing their Defence.

On the 27th of July 2022, we issued our Reply to Defence and on the 25th of July 2023, we served Notice of Trial on the Defendants.

Title to Proceedings

O MAHONY -V- MINISTER FOR HEALTH & ORS 2021/1327 P

Parties to the Proceedings

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

Legal Argument

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 enacted into law regulations which closed businesses, decided what businesses were 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 any such regulations is that we say it is in 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 (meaning the Cabinet, Taoiseach and Tánaiste).

In summary, our 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 150 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.

Once we have further information regarding a hearing date for the case, we will provide a further update.

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.