Shift in Burden of Proof in Judicial Reviews of Public Health Measures: O'Doherty and Waters v. Minister for Health

Introduction

The case of O’Doherty and Waters v. The Minister for Health, Ireland and the Attorney General & Ors [2021 IESCDET 129] is a pivotal decision by the Supreme Court of Ireland that addresses the procedural thresholds for challenging governmental public health measures. The applicants, Gemma O'Doherty and John Waters, sought to appeal against the denial of leave to bring a judicial review challenging the constitutionality of several COVID-19 related legislative measures.

The key issues revolved around whether the applicants sufficiently demonstrated that the challenged measures had a disproportionate impact on their constitutional rights and whether the burden of proof in such judicial review applications should shift under certain conditions.

Summary of the Judgment

The Supreme Court granted the applicants leave to appeal, but limited it to a specific aspect of their argument. While recognizing that the COVID-19 measures significantly impacted several constitutional rights, the Court noted that the applicants failed to provide sufficient evidence to establish an arguable case. Nevertheless, the Court identified a critical issue regarding the burden of proof in judicial reviews of proportionality concerning constitutional rights, which warranted further examination. Consequently, the Court permitted an appeal on whether the burden of proof should shift to the respondents when the validity of measures with clear and significant constitutional impacts is challenged.

Analysis

Precedents Cited

The judgment references previous determinations that have shaped the constitutional framework for granting leave to appeal. Notably:

• B. S. v. Director of Public Prosecutions [2017] IESCDET 134: This case addressed general principles for granting leave to appeal, particularly in the context of the Thirty-third Amendment.
• Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73: Delivered by O'Donnell J., this unanimous judgment further elucidated the criteria for leave to appeal, emphasizing the necessity of meeting constitutional criteria in judicial review applications.

These precedents collectively established a robust framework for evaluating applications for leave to appeal, focusing on constitutional criteria and the importance of demonstrating an arguable case.

Legal Reasoning

The Supreme Court’s reasoning centered on two primary factors:

• Adherence to Constitutional Criteria: The Court reiterated the importance of the applicants meeting constitutional thresholds established in prior cases. Despite the significant impact of the measures on constitutional rights, the lack of substantial evidence undermined the applicants' position.
• Burden of Proof: A critical aspect of the Court’s reasoning was the potential shift in the burden of proof. Traditionally, applicants bear the responsibility to establish an arguable case. However, the Court pondered whether, in scenarios where legislation has a clear and significant constitutional impact, the burden should shift to the respondents to justify the necessity and proportionality of the measures.

The Court found that while the applicants failed to substantiate their claims sufficiently, the questions raised about the burden of proof in such judicial reviews are of considerable public importance and merit further judicial consideration.

Impact

This judgment has significant implications for future judicial review applications, especially those challenging public health measures or other legislative actions that impinge upon constitutional rights:

• Procedural Thresholds: Clarifies the necessity for applicants to provide concrete evidence when challenging the proportionality of governmental measures.
• Burden of Proof: Opens the door for potential shifts in the burden of proof in cases where challenged measures have profound constitutional implications, potentially altering how future cases are argued and decided.
• Judicial Oversight: Emphasizes the judiciary’s role in scrutinizing the balance between public interest and individual rights, especially in emergency contexts.

Legal practitioners must now consider these factors when preparing judicial review applications, ensuring robust evidence and arguments to meet constitutional criteria effectively.

Complex Concepts Simplified

Judicial Review: A legal process where courts examine the actions of public bodies or officials to ensure they comply with the law.

Proportionality: A principle in law assessing whether the extent of governmental action is appropriate and necessary in relation to the intended objective.

Burden of Proof: The obligation to present evidence to support one's claim. Typically, the applicant must demonstrate that their case is arguable.

Leave to Appeal: Permission granted by a higher court to review the decision of a lower court.

Constitutional Threshold: The set of criteria derived from the constitution that must be met for a legal challenge to proceed.

Conclusion

The Supreme Court's decision in O’Doherty and Waters v. Minister for Health underscores the critical balance between individual constitutional rights and public interest measures, especially in times of crisis. While the applicants did not meet the evidentiary requirements to advance their challenge, the Court's willingness to explore the shift in the burden of proof marks a significant moment in Irish jurisprudence. This development may lead to more stringent scrutiny of public health measures and ensure that governmental actions remain within constitutional bounds, thereby safeguarding individual liberties while addressing collective needs.