S.C. No. 203 of 2000

IpsofactoJ.com: International Cases [2008] Part 5 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

T.D., a minor

(by his mother & next friend, M.D.)

- vs -

Minister for Education

KEANE CJ

DENHAM J

HARDIMAN J

MURPHY J

MURRAY J

17 DECEMBER 2001


Judgment

Keane CJ

Introduction

  1. The appeal to this court in these cases comes at the end of a lengthy sequence of such cases in the High Court, where the court has been asked to ensure that the State discharges what is claimed to be its constitutional obligation to provide for the accommodation needs of children with particular problems. The order appealed against requires the first and fifth named respondents in the first entitled proceedings (hereafter “The Ministers”) “(in relation to all the aforesaid entitled proceedings) [to] take all steps necessary to facilitate the building and opening of secure and high support units in places as follows ....”

  2. There follows a list of ten “high support” or “special care” units which, under the terms of the order, are to be built and opened by specified dates in different parts of the State. A list of the units so specified will be found in the Appendix to this judgment.

  3. The order was made on the 25th of February 2000 for the reasons set out in the reserved judgment delivered on that day by Kelly J.

  4. Since the judgment and order has its origins in the first of the cases in the title, T.D., it is convenient to set out the facts of that case at the outset. The applicant was born on the 9th January 1983 and is accordingly now aged eighteen. At the date of the judgment and order in the High Court, he was aged seventeen. He began his educational career in Goldenbridge National Schools, Dublin, and in 1990 was enrolled in the Phoenix Park Special School for pupils with emotional disturbance and attended there for one year. He was then placed in Warrenstown House, an Eastern Health Board residential unit which also provided educational facilities, from May 1991 to September 1992. He attended St. Laurence O’Toole Special School until June 1995, but did not return in September as it was alleged that he was being bullied by other pupils. On the 19th November 1996, the District Court made an order pursuant to S.58(4) of the Children Act 1908, (hereafter “the 1908 Act”) as a result of which he was placed in St. Laurence’s, Finglas, Dublin. Thereafter he was placed in a number of different institutions. At the date of the hearing in the High Court, he was living with his parents in Inchicore.

  5. A report from Dr Gerard Byrne, a consultant psychiatrist, dated 30th November 1998, stated that:-

    T. needs to be placed in an environment with a high staff ratio where he can learn better controls in the context of forming attachments to staff who care for him. He does not need a secure unit and, indeed, I think a secure unit is contraindicated. A secure unit is likely to place him in contact with a far more delinquent peer group. Given his difficulties with impulse control and general immaturity such a setting would cause a deterioration in his general state.

  6. Proceedings were commenced by way of judicial review in the High Court. The relief sought included inter alia an order of mandamus directing the respondents to provide for appropriate education suitable to the needs of the applicant in a suitable educational establishment. The matter appears to have come before the learned trial judge for the first time on the 5th November 1998, at which stage T.D. was being detained in Oberstown Boys’ Centre. It was ordered that that should continue until further order and that the matter should be listed for review by the court on 1st December 1998. On 4th December 1998, the court directed that specified information should be placed before the court not later than the 27th January 1999: this related to the provision by the state agencies of particular facilities and the time within which those facilities would be provided. The further hearing was then adjourned until 29th January 1999. It appears to have been adjourned again until the 16th March 1999, when T.D. was ordered to be arrested and detained in St. Patrick’s Institution until further order. The matter came before the court on the 26th March, and was adjourned again until the 26th April. Ultimately, on the 11th October 1999, the case was adjourned generally with liberty to re-enter.

  7. These comparatively lengthy adjournments were given by the trial judge, with the agreement of the appellants/respondents, so that they could place before the court evidence as to the progress being made by the appellants/respondents in the provision of facilities for children in the position of T.D. However, when the matter came before the High Court again on the 16th December 1999 and evidence was given by officials as to these matters, it was also pointed out on behalf of the appellants/respondents that, given the age of T.D., the proceedings were effectively moot as far as he was concerned. At that stage, there were a number of other applications pending before the High Court which also arose out of the lack of appropriate residential facilities for children in the same position as T.D. The trial judge indicated the approach he was adopting as follows:-

    In principle, it seems to me that the applicants are entitled to injunctive relief but I am not going to make a final decision on that until I have heard further submissions. What I am going to do is permit the applicant to set down a notice of motion, not merely in the (T.D.) proceedings but in all of the proceedings, one single motion which can be entitled in all of the proceedings so a technical objection taken by the Minister can no longer have any effect. That motion can be set down for early next term, in which you can spell out with precision injunctive relief. What I have in mind is that you will seek injunctions which will accord precisely with what has been put before me by way of oral evidence from the Department of Health concerning

    (a)

    the facilities that are to be provided and

    (b)

    the time in which such facilities are to be provided.

    I am not interfering in departmental policy. I am merely taking steps to ensure that if such an injunction is granted, having heard further submissions from counsel on all sides, that if such an injunction is granted it will simply mean that the departmental word will be its bond insofar as this court is concerned, and that if there is to be a further departure from the time scale that has been given to me, it can only be brought about on application to this court. It will also mean that I will be fully apprised of all the developments. As I said in D.B. a variation of the time scale chosen by the Department, given the sworn testimony by the Department, will not be departed from save for various strong and cogent reasons.

    (The reference to D.B. is to a decision of the trial judge reported sub. nom DB v Minister for Justice [1999]1 IR 29.)

  8. In accordance with the approach thus indicated, a notice of motion was served on behalf of T.D., and the eight minors named as applicants in the other proceedings, claiming an injunction directing the Ministers to take all the steps necessary to facilitate the building and opening of the secure and high support units in the places specified in the Appendix. On the hearing of this application, further oral evidence was adduced on behalf of the Ministers confirming earlier evidence that the units and places would be provided within the time limits specified in the Appendix. The trial judge also heard submissions on behalf of the applicants and the respondents: it was made clear on behalf of the Ministers that they were not prepared to give an undertaking to the court that the units and places would be provided within the time scale specified.

  9. Before considering the reserved judgment delivered by the trial judge on the 25th February 2000, the legal and factual context in which he gave that judgment must be referred to in more detail.

    The Legal Background

  10. The sequence of events which culminated in the judgment and order under appeal began with the decision of the High Court (Geoghegan J.) in FM v The Minister for Education [1995] 1 IR 409. The applicant in that case was a twelve year old child whose father was unknown and whose mother - dead at the time of the application - had had no contact with him since an early age. After he had spent a period of time with foster parents, the Eastern Health Board obtained an order under S.58(4) of the 1908 Act which empowers the District Court, on the application of a guardian, parent or “fit person” who is unable to control a child and who understands the consequences of an order under the subsection, to order the child to be sent to a certified industrial school named in the order. Following the obtaining of that order, the Eastern Health Board subsequently provided various types of accommodation for him. He was ultimately diagnosed as suffering from what was described as a “hyperkinetic conduct disorder” by a consultant psychiatrist who recommended that he should spend a period of time in a secure unit which could contain him safely while addressing his behaviour. On the application of the Eastern Health Board, an order was made under S.58(4) of the 1908 Act: however, the managers of the industrial school named in the order - St. Joseph’s in Clonmel - were not willing to take him. The managers of the only other certified industrial school in the country at that time, St. Laurence’s in Finglas, were also not prepared to take him. In the course of his judgment, Geoghegan J. pointed out that, at the time of the passing of the 1908 Act, there were a large number of certified industrial schools, the list of which is to be found in O’Connor’s ‘The Irish Justice of the Peace’ (volume 2, p.162).

  11. The applicant was then given leave by the High Court to apply for relief by way of judicial review in the form of a declaration that the respondents to the application (The Ministers, Ireland and the Attorney General) had failed to protect and vindicate the applicants’ constitutional rights under Articles 40.3 and 42 of the Constitution and an order of mandamus directing the respondents to protect and vindicate the constitutional rights of the Applicant by inter alia:-

    (a)

    providing forthwith secure accommodation for the Applicant;

    (b)

    providing forthwith for the religious and moral, intellectual physical and social education of the Applicant.

  12. The circumstances in which that application came before the court are not entirely clear. As already noted, the applicant’s father was unknown and his mother was dead. He is described as suing by his next friend M.H., but there is no indication as to the relationship between the next friend and the applicant. The Eastern Health Board are described in the judgment as the “guardian” of the applicant, but I assume that this is because one of the legal consequences of the making of a “fit person” order was that the person concerned enjoyed the same control over the child as its parent or guardian would have enjoyed in the absence of such an order. The Eastern Health Board were joined as notice parties and (a statement of opposition having presumably been filed on behalf of the respondents) the substantive hearing came on before Geoghegan J.

  13. In the meantime, a place had become available for the applicant in an institution called “Glen House”, which was not a certified industrial school but was a health board institution for housing more difficult children. Counsel for the Eastern Health Board indicated to the court that his clients, as the persons having control of the applicant under the fit person order, were satisfied that the appropriate course was for the applicant to be accommodated there, at least for the time being.

  14. However, counsel for the applicant objected to that course of action being taken on both legal and factual grounds. In the first place, he submitted that the Health Board, having applied to the District Court under S.58(4) of the 1908 Act, were now functus officio and that “the matter is in the hands of the District Court”. The trial judge rejected this submission, pointing out that the District Court had no jurisdiction to order the applicant to be sent to any particular certified industrial school without first ascertaining that the manager was prepared to take him, as was made clear by S.62(1) of the Act. Consequently, he took the view that the health board continued to be responsible for the child and was entitled to place the child in such institution as it thought fit, subject to his legal and constitutional rights.

  15. The Glen House proposal was also opposed by counsel for the applicant on a number of grounds, i.e. that the actual physical building was unsuitable, that there would be other children there who would have criminal tendencies, that the staffing would be inadequate and that it did not comply with the requirements of “containment for treatment” indicated by the medical witnesses. However, while the trial judge was satisfied that these criticisms were to some extent well founded, he considered that, as a temporary solution at least, the applicant should go to Glen House.

  16. On one view, that should have been enough to dispose of the case, since the Health Board, the body in control of the child in the absence of a parent or guardian, was satisfied that accommodation appropriate to his needs, at least for the time being, was available in Glen House. If the parents of F.M. had been parties to the proceedings and had told the court that they were in agreement with the view of the Health Board that the child should be accommodated at least for the time being in Glen House, it is difficult to imagine that the court would have given any weight to objections from any other party, and the Health Board were, of course, in the same position in legal terms as the parents.

  17. It was, however, submitted on behalf of the Ministers and the other respondents that there was no constitutional obligation on the State to provide services beyond what was at present available so as to cater for the particular needs of a person in a position of the applicant. The trial judge rejected that contention, saying that he was satisfied that, in the case of children with “very special needs” which could not be provided by their parents or guardians, there was a constitutional obligation on the State to cater for those needs in order to vindicate the constitutional rights of the child. He went on:

    It would seem to me that on the balance of probabilities the provision of such necessary accommodation, arrangements and services by the State as might meet the necessary requirements of this applicant is not so unpractical or so prohibitively expensive as would come within any notional limit on the State’s constitutional obligations. There may be differences of opinion among the experts as to the level of staffing arrangements which would be required even on a temporary basis, for the proper care of F.M. but I am not convinced at present that even the more extreme view taken by Dr Byrne as to staff ratio is prohibitively expensive. He has given evidence that similar facilities are available in Canada and other countries. I would have thought that in considering questions of expense and practicality, the State would have regard not merely to the immediate cost but to a possible long term saving of cost if the special treatment of recalcitrant children led in the long term to a reduction of crime and drug abuse. But these are obviously to some extent areas of policy. I advert to them merely to indicate why it is not self evident to me that the more elaborate requirements suggested by Dr Byrne fall outside the ambit of any constitutional duty owed by the State.

    In summary I take the view that the State is under a constitutional obligation towards the applicant to establish as soon as reasonably practical, either by use of S.58(4) of the Act of 1908 or otherwise, suitable arrangements of containment with treatment for the applicant. In the meantime I am accepting that Glen House is as good a temporary solution as any. I do not propose to make any immediate declaration or order in this case for the time being. I will, however, order that the case should stand adjourned and will discuss with counsel the length of the adjournment.

  18. The further history of that case is summarised as follows by Kelly J. in D.B.:-

    Seven days after he delivered judgment in March 1995, Geoghegan J. was apprised of developments proposed by the Minister for Health concerning the provision of residential places for both young offenders and children in need of special care. This information was obviously considered by the court as demonstrating the clear intention on the part of the Minister to address in a realistic and timely way the entitlements of F.M. and others like him. As far as the court was concerned, there was no reason to believe other than that those proposals would be implemented.

    D.B. was also a case in which the applicant, then aged fourteen years, was in need of accommodation in a secure environment from which he could not readily escape. A number of orders were made by judges of the High Court as to his custody, care and control, and ultimately he applied to the court for an order directing the Ministers for Justice, Health and Education to make available to the Eastern Health Board sufficient funding to allow them to build, open and maintain a secure, twenty-four bed, high support unit at Portrane in Dublin. They also sought an order directing the Ministers to take all steps necessary to facilitate the building, opening and maintenance of the unit. Finally they sought an order directing the Ministers to take such steps as to the court might seem fit and proper to ensure that there was adequate secure high support accommodation available for the applicant “and for others with similar needs”.

  19. In his judgment, Kelly J. said that, since shortly after his appointment to the bench in April 1996, he had been involved in dealing with cases of this type. During the course of a hearing before him in April 1997, it had emerged for the first time that the proposals of which Geoghegan J. had been informed in March 1995 had been, as he put it,

    substantially departed from without that fact ever having been made known to the court.

  20. He went on to review what developments had taken place since then and referred to proposals for the provision of two units, a detention unit and a high support unit. (A high support unit does not have the same type of detention facilities as are provided in a detention unit proper.) Two sites were identified, one at Ballydowd, Lucan, Co. Dublin and the other at Portrane, Co. Dublin. At the time of the hearing before the trial judge on the 29th July 1998, it was estimated that these facilities would not be in place, in the case of Ballydowd, until 2000, and in the case of Portrane until the end of 2001. The trial judge found that these delays were the result of frequent changes of policy on the part of the Minister. He also referred to the evidence on behalf of the Eastern Health Board that sixty places - a mixture of detention places and high support units - were required to accommodate children with needs such as those of the applicant: the position at that time was that there were only eighteen such places available.

  21. Kelly J. was highly critical of the manner in which the executive had dealt with the problem, describing the interdepartmental wrangles, delays in drafting and redrafting legislation and reverses in policy as “a scandal”. Having said that he was satisfied that the court had jurisdiction to make orders to ensure that the constitutional rights of persons such as the applicant were upheld, although it was not a jurisdiction to be exercised lightly, he went on:

    It has also been suggested that little would be achieved by the grant of such an injunction. I do not agree. The granting of this injunction means that the Minister is no longer at large concerning the approach to be adopted to solving this problem. The developments proposed will now have to be completed and within the time scale specified. If there is to be any future change of policy or if the times indicated cannot be met, application will have to be made to this court on the part of the Minister for a variation of the injunction. This will mean that not merely will the court have to be informed of all of these developments (something sadly lacking to date) but objectively justifiable reasons will have to be furnished to it as to why an injunction should be varied. A variation will not be granted lightly. This will afford to the court an opportunity of much greater involvement than it has been possible to have in the past. It will mean for these minors that the court, having declared their entitlements, will now see to their implementation in a direct way.

    The Factual Background

  22. The circumstance of each of the other applicants in the present proceedings should be next summarised.

  23. The applicant D.B., at the time of the hearing in the High Court, was aged sixteen years and one month. His behaviour appears to have deteriorated from the age of eight onwards and he was accommodated in a number of different institutions, but did not display any significant improvement. He was ultimately the subject of criminal charges, but no conviction was recorded against him. On 22nd October 2000, he was placed in Trinity House pursuant to an order of the High Court.

  24. M.B. was aged fifteen years at the time of the hearing in the High Court. She was also accommodated in a number of different institutions, but the results were unsatisfactory: she was eventually admitted to Oberstown Girls Centre on 19th May, 1998 pursuant to an order of the High Court. At the time of the High Court hearing, she was residing in Newtown House pursuant to a High Court order.

  25. G.D., having attended a variety of different institutions, was ultimately sent to St. Michael’s Remand and Assessment Centre by order of the Dublin Metropolitan Children's Court on 22nd October 1998. He continued to reside in St. Michael’s under the order of the High Court dated the 16th February, 1999 when he transferred to Oberstown Boys Centre. He remained there until 15th July when he moved to Newtown House where he was in residence at the time of the High Court hearing.

  26. Gary D. reached the age of sixteen in April 2000. After failing to attend a number of institutions where places had been found for him, he was sent to St. Michael’s Remand and Assessment Centre by an order of the Dublin Metropolitan Children's Court on 22nd October 1998. He continued to reside there as a result of a High Court order until 16th February, 1999 when he transferred to Oberstown Boys Centre. He remained there until 15th July when he moved to Newtown House where he was residing at the time of the High Court hearing.

  27. Glen D. was aged about thirteen years at the time of the High Court hearing. At that stage, he was enrolled in Scoil Eoin, Crumlin, attending on a daily basis.

  28. P.H. was aged sixteen years and two months at the time of the High Court hearing. On foot of court proceedings for non attendance at school, he was remanded to St. Michael’s Remand and Assessment Unit and continued to reside there under order of the Children's Court. That court having decided that he could not be remanded any further to St. Michael’s, an application was made to the High Court and his detention in St. Michael’s continued by an order of the High Court. He was subsequently transferred to a house in Churchtown, then to a house in Knocklyon with similar facilities and finally to St. Augustine’s Special School, Blackrock, which he had stopped attending shortly before the High Court hearing.

  29. B.J. was aged thirteen years at the time of the High Court hearing. He was described as being out of the control of his mother for some time and was the subject of charges before the Dublin Metropolitan Children's Court. He was remanded to St. Michael’s Remand and Assessment Unit in Finglas for a three week period ending on 27th September. He was recommended for a place in St. Laurence’s, Finglas, but there was not a place immediately available there and he was again remanded to St. Michael’s from the 8th October. On the 9th December the District Court struck out the charges against the applicant, who continued, however, to be maintained overnight in St. Michael’s on a voluntary basis. On the 10th December, the High Court ordered him to be placed in St. Michael’s until a place became available in St. Laurence’s, which happened on the 14th January 2000.

  30. T.L. was aged sixteen years and three months at the time of the High Court hearing. After having attended a number of institutions, she was the subject of an order pursuant to S.58(2) of the 1908 Act in March 1995 and on the 4th June 1997 was placed in Oberstown Girls Centre pursuant to an order of the High Court. She was placed in Killinarden House on 15th December 1997. She had passed the Junior Certificate examination in June 1999 and, at the date of the High Court hearing, was residing in An Grianan, Whitehall, with the approval of the High Court.

  31. S.T. was aged thirteen years and two months at the time of the hearing in the High Court. His behaviour started to deteriorate following the separation of his parents and he was enrolled in St. Peter’s Special School, Orwell Road in September 1997. His behaviour continued to give rise to concern. At the time of the High Court hearing, he was residing in Tallaght in the care of staff of the Eastern Health Board.

  32. It should be noted that, while some at least of the minors had appeared in the District Court on criminal charges, in no case had any conviction been recorded against any of them. However, because of the absence of available places in sufficiently secure units with appropriate facilities for minors with behavioural problems of this nature, it will be seen that it was found necessary in some cases to accommodate them in detention centres intended for the reception of children convicted of criminal charges, a situation which has given rise to understandable concern.

  33. It appears from the judgment of the High Court in the present case that at the time of the hearing the mandatory injunction granted by the court in D.B. was being complied with by the Ministers. When the application of T.D. first came before the court, Kelly J. was satisfied that the provision of appropriate accommodation for minors in the position of the applicants was now being dealt with in an appropriate manner by the departments concerned. It was for that reason that he granted the comparatively lengthy adjournments already referred to. However, on the renewed hearing he expressed his concern that the time frames within which the units would be provided had not been adhered to in any case. While he accepted that this was due in some instances to circumstances outside the control of the departments concerned, such as industrial disputes, planning objections, unforeseen site difficulties etc., he said that he was also satisfied that this was not always so, instancing in particular delays in the provision of a high support unit in Castleblayney. In that case, the time for completion had been extended from mid 2000 to early 2002, because of delays in reaching agreement as to the price to be paid to the Department of Defence for the premises (they had been formerly an army barracks.) The trial judge was extremely critical of the fact that during that period no attempt had been made to present a planning application in respect of the proposed development.

  34. As already noted, the evidence before the High Court in December 1999 and January 2000 was that the Ministers hoped that the units in different parts of the country specified in the Appendix would be made available within the times indicated, but were not prepared to give an undertaking that they would be so completed within the specified times to the court.

    The High Court Judgment

  35. In his judgment, the trial judge said that, on the basis of the evidence he had heard, he had come to the conclusion that the Department of Health and Children had not proceeded in a manner which could reasonably be expected of it so as to address what he described as “the quite scandalous situation which has now obtained for years .While he acknowledged that substantial progress had been made, he also said that none of the time scales given in evidence before the court in April 1999 or even December 1999 would now be met and that this had been the result on many occasions of “manifest inefficiency”. In the light of those findings, he then proceeded to consider the submissions made by the parties as to whether the injunctive relief sought should be granted.

  36. While it had been argued that the injunction sought was not sufficiently specific, he said that he was satisfied that this was not so: on the contrary, the injunction would do no more than spell out what the State had already agreed would be done and that, in any event, if the Minister encountered difficulties beyond his control, he could always apply to the court with a view to seeking a variation of the order.

  37. The trial judge next considered a submission that the applicants lacked locus standi, since it had not been demonstrated that any one of them would benefit directly from the granting of the relief sought. He said he was surprised to hear such a submission, since, following the decision in F.M., the plans of which the court had been informed were put forward, not on a piecemeal case by case basis, but rather by addressing the needs nationally. Having referred to the evidence of Mr. Ruairi O’Cillin, a divisional inspector in the Department of Education and Science, with acknowledged experience in this area, he said that it was clear from that evidence that the absence of the facilities now being sought did have an effect, in practical terms, on the ability of the state agencies to meet the needs of the present applicants. Having said that the applicant’s interests had been adversely affected by the failure to provide the appropriate facilities, the trial judge concluded that they had sufficient locus standi to make the application.

  38. The trial judge then dealt with the submission that the court had no jurisdiction to grant injunctions of the type sought because to do so would be to trespass on the role of the executive in the determination of policy. Having referred to what he had said in D.B. v The Minister for Justice, he reiterated his view that there was a jurisdiction vested in the court “to intervene in what has been called policy in an appropriate case.” Such an intervention would, however, occur only in limited circumstances and where it was absolutely necessary for the court to carry out its duties under the Constitution in securing, vindicating and enforcing constitutional rights. He was also of the view, however, that no question arose in this case of the courts intervening in a policy area, since the executive had already formulated a policy which, if carried into effect within the specified time scale, would address in an adequate, albeit belated fashion, the rights of the applicants.

  39. The trial judge went on to identify four factors which he considered should be taken into account in deciding whether or not to grant the relief sought. The first was the fact that the High Court had already granted declaratory relief concerning the obligations of the State in cases of this nature. Secondly, he had regard to the fact that, if the declaration was to be of any benefit to the minors in whose favour it was made, the necessary steps consequent upon it would have to be taken expeditiously. Thirdly, the effect of a failure to provide the appropriate facilities would have a profound effect on the lives of children and put them at risk of harm. Fourthly, due regard was to be had to the efforts made on the part of the State to address the difficulties to date. He said that, if the court were to conclude that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the State’s response was proportionate to the rights which fell to be protected then normally no order of the type sought should be made. He summed up his conclusions as follows:

    Just as in the case of D.B. I have come to the conclusion that in the absence of an appropriate undertaking on the part of the Minister the time has now come for this court to take the next step required of it under the Constitution so as to ensure that the rights of troubled minors who require placement of the type envisaged are met.

    The order that I propose making will ensure that the Minister, who has already decided on the policy, lives up to his word and carries it into effect. I am neither dictating nor entering into questions of policy but if the Court is to keep faith with its own obligations under the Constitution and with the minors with whose welfare it is concerned the injunction sought must be granted.

    The effect of this injunction is that the proposed developments must be now completed within the time scale specified in evidence in the latest hearing before me. If there is to be any change in this it will have to be the subject of an application to the court on the part of the Minister for a variation of the injunction. There will have to be objectively justifiable reasons present to warrant such variation being granted.

    Submissions of the Parties

  40. Mr. Paul O’Higgins S.C., on behalf of the appellants/respondents submitted that the case on their behalf as to locus standi was that the applicants did not have the standing to seek the particular orders granted, whereby particular buildings were ordered to be built at specified locations within prescribed time limits. There had been no evidence in the High Court as to the particular needs of the applicants: in particular, it had not been demonstrated how the requirement that particular high security and high support units should be provided would meet the particular needs of these applicants. It was further urged that even if the court was entitled to conclude that the rights of the applicants had been infringed by the failure of the respondents to provide the units now directed by the court to be provided, which was not accepted, that was a breach which could only be dealt with by way of an award of damages. He said it was clear that, rather than addressing the specific needs of the applicants in these proceedings, the judgment and order was seeking to ensure the existence of a series of units which would be available to any children who may need them over the coming years. He cited in support the decisions of this court in King v A.G. [1981] IR 233 and Madigan v A.G. [1986] ILRM 123 and of the High Court in Mhic Mhathuna v Attorney General [1989] IR 504.

  41. It was further submitted that, in effect, the learned trial judge was not examining the individual needs of individual applicants in the course of the hearing, but rather the manner in which the relevant departments (and in particular the Department of Health and Children) had formulated and implemented policy in relation to the provision of high security in high support units for children at risk. He was accordingly concerning himself with policy matters of general application rather than issues which were specifically referable or relevant to the needs of individual applicants. It was expressly acknowledged by counsel for the applicants and the trial judge himself that the case of T.D. was being used as a vehicle for reviewing the progress generally in relation to the provision of facilities. It was submitted that, in compelling the Minister to use his executive powers in such a way as to implement a particular policy for the good, not of specific applicants but rather of children at risk generally, the court was clearly entering into questions of policy. This was in violation of the separation of powers which confers the power to make policy on the executive, the executive in turn being answerable to the Oireachtas.

  42. It was further submitted that the right to formulate and implement policy must necessarily include a right to change that policy and requiring the Minister to apply first to the court before implementing any change in that policy constituted a usurpation by the judicial power of an executive power.

  43. It was further submitted that it was of importance for the executive to be in a position to change its policy: the evidence before the court indicated that the development of high support places, together with other individualised arrangements for children, would reduce the requirement for high security accommodation for such children. He cited in support the decisions of this court in District Judge McMenamin v Ireland [1996] 3 IR 100, Feeney v Minister for Finance [1986] ILRM 164 /166 and Riordan v An Taoiseach [Supreme Court] U/R; 21st July 2000.

  44. It was further submitted that the effect of the order under appeal was to require specific expenditure by the executive on the construction of the units in question and that this was an attempt to direct the manner in which the central fund is to be administered. It was urged that this was also a breach of the doctrine of the separation of powers, citing in support Mhic Mhathuna v Attorney General and the judgment of the High Court in O’Reilly v Limerick Corporation [1989] ILRM 181.

  45. It was further submitted that the order under appeal, being mandatory in nature, should only have been granted if the applicants had demonstrated a very strong probability upon the facts that grave damage would accrue to him in the future if the order were not granted, citing Redland Bricks Limited v Morris [1970] AC 652. Nor should an injunction be granted if it would inflict damage on the defendant out of all proportion to the relief to which the plaintiff was entitled, citing Sharpe v Harrison [1922] 1 CH 502.

  46. It was also submitted that a court should not normally grant a mandatory injunction if it was likely to involve the court in constant superintendence of the work to be done, as was held in Ryan v Mutual Tontine Association [1893] 1 CH 116. It was also urged that, while the court had indicated that it would consider allowing variations to the order in respect of what it described as “non-culpable” departures from the time scale involved, there was no indication as to what might constitute such a “non-culpable” departure. It was submitted that the appellants, who as state entities would be concerned not to be in contempt of a High Court order, might find themselves applying on an almost weekly basis because of delays threatening the ability of the appellants to complete the buildings within the time frame provided.

  47. It was also submitted that the trial judge was not entitled to take into account, as he clearly did, the possible obligations of the State towards other children at risk. As to the concern of the trial judge that the failure to provide the appropriate facilities would have a profound effect on the lives of children and put them at risk, it was submitted that there was no indication that this was a factor of any specific relevance to the making of the order so far as the individual applicants were concerned.

  48. It was also submitted that, while the trial judge said that he had had regard to the efforts made on the part of the State to address the difficulties to date, it was clear that he had not given sufficient weight to what had in fact been done. The unchallenged evidence was that capital funding of IR£4.6 million had been committed in respect of the seven Health Boards (excluding the Eastern Health Board) together with a revenue allocation of £5.3 million committed over that period also. In addition £30 million of revenue funding would be made available to support the further development of child care services in the year 2000 which would allow not only for the development of special residential care services but also for the further development of a range of alternative services such as family support, early intervention and fostering services. Of that sum, £3 million had been specifically earmarked to allow the Health Boards to ensure that they were in a position to carry out their duties under the Children's Bill when it was enacted. In addition, the evidence of Mr. O’ Cillin indicated that £165.8 million was to be allocated for the further development of youth services.

  49. It was submitted that the evidence established that, since the F.M. case, new units had been opened at Newtown House, Killenarden House, Gleannalainn, Mullingar and Kilkenny. In addition, although the court treated the provision of the premises at Ballydowd and Portrane as examples of full compliance with a court order, the evidence in fact established that it had not been possible, despite the existence of the order, to comply with it fully: in particular difficulties were experiences in obtaining the numbers of staff required for a premises such as Ballydowd. No distinction, moreover, was drawn in the order between those the premises at Castleblayney, where the court considered that there had been “culpable delay” and other premises where there was no indication that the delay was culpable.

  50. On behalf of the respondents, Mr. Gerard Durcan SC., submitted that, insofar as the arguments of the appellants as to locus standi were grounded on the claim that the relief sought did not address the specific problems of individual applicants, they were misconceived. Such arguments were relevant, not to the issue of locus standi as such, but to the appropriateness of the relief claimed. It was not disputed that the applicants had a bona fide interest or concern in seeking adequate and suitable facilities and services and accordingly they met the test laid down by this court in Society for the Protection of the Unborn Child (Ireland) Limited v Coogan [1989] IR. 734. It was, in those circumstances, not relevant that the order made by the trial judge would not benefit the particular applicants, if that were the fact.

  51. As to the submission that there was no evidence tendered on behalf of the applicants as to their particular circumstances or needs, it was submitted that this disregarded the fact that each of the applicants had appeared in the High Court on a number of occasions before the learned trial judge who would have had the benefit of many reports in regard to their circumstances: the situation of each applicant was well known and had been dealt with by the court on a number of occasions. It was further submitted that it was clear from the evidence of Mr. O’Cillin that he would expect all of the applicants to benefit from the facilities in respect of which the injunction was being sought. It was submitted that there was ample evidence on which the trial judge could have arrived at the conclusion that each of the applicants had sufficient locus standi and that, accordingly, that finding should not be set aside.

  52. As to the argument that the granting of the order constituted a violation of the doctrine of the separation of powers enshrined in the Constitution, he submitted that the courts not only had a right, but an obligation, to supervise or interfere with the exercise by the Government of its executive functions if the Government was acting otherwise then in accordance with the provision of the Constitution. He cited in support the observations of Fitzgerald C.J., in Boland v An Taoiseach [1974] IR 338, of Finlay C.J., in Crotty v An Taoiseach [1987] IR 713 and of Hamilton C.J., in McKenna v An Taoiseach (2) [1995] 2 IR 10.

  53. Mr. Durcan further submitted that, since it was accepted by the appellants that the High Court had extensive powers to ensure the protection of constitutional rights as laid down by this court in the State (Quinn) v Ryan, the issue raised in these proceedings was as to how the court should have used those powers to ensure the upholding of constitutional rights. That required a consideration of the nature of the constitutional right in question, the nature of the failure to vindicate that right and of how best such a breach could be remedied. He submitted that an analysis conducted in that manner could only lead in the present case to a conclusion that damages would not be an appropriate remedy: where, as here, the right was positive in nature, i.e., a right to have provided adequate services and facilities catering for the special needs of the applicants. He cited in support of that proposition the decision of the United States Supreme Court in Brown v Board of Education [347] US. 483 and Brown v Board of Education (2) 349 US. 294, where the court remanded the issue of the full implementation of the constitutional principles to local district courts. That case demonstrated, as did the decisions in Boland and McKenna (2) that, while the primary obligation to uphold the constitutional right of the claimant might rest on a particular body - in this case the executive - circumstances could arise where the court was obliged to intervene, not simply by interfering with the actions of the body, but also by supervising those actions.

  54. He further submitted that this was not a question of the court making policy in violation of the separation of powers, but rather of ensuring that a policy was adopted and implemented which would remedy the breach of the Constitution. In this case, the legitimate concern of the High Court was to ensure that the rights of the applicants were vindicated with suitable expedition: within that framework, it remained for the State to determine how best to satisfy those constitutional rights.

  55. As to the submission that the court had no jurisdiction to grant a mandatory injunction of this nature, he submitted, that while this might be so in an ordinary lis inter partes, different considerations arose where the court was being asked to ensure the proper protection of constitutional rights. Nor was it a case in which, as the defendants claimed, the court had failed properly to balance the interests of the parties in a proportionate manner: the damage suffered by the applicants in the present case as a result of the absence of the facilities was real and substantial and, given that the appellants themselves had framed the programme which the order of the court required them to implement within the specified time, it could not be said that it imposed a disproportionate burden on them. As to the objection that compliance with the injunction would require constant supervision by the court, he submitted that this alleged difficulty was overstated: the obligations imposed on the applicants by the order were clear and specific and in accordance with their own programme and there should be no need for any supervision of their compliance. The fact that they would have to come to court if they proposed to depart from the time scale prescribed by the court meant that they were in no different position from any other party who was the subject of an injunction and who sought to have its terms varied.

  56. Mr. Durcan submitted that the appellants were, in effect, saying that the courts were precluded from granting mandatory injunctions so as to ensure that the other organs of government carried out their constitutional duties. If that were the law, it would mean that the courts would be powerless to ensure the upholding of the Constitution. In fact, he urged, the courts had on more than one occasion recognised that circumstances could arise in which the courts would grant mandatory relief as against the other organs of government, citing Byrne v Ireland [1971] IR 241. In the present case, the only way in which the applicants’ rights could be upheld was by the granting of such a mandatory injunction.

    The Constitutional Rights of the Applicants

  57. The right claimed on behalf of each of the applicants can be defined as

    a right to be placed and maintained in secure residential accommodation so as to ensure, so far as practicable, his or her appropriate religious and moral, intellectual, physical and social education.

  58. No such right is expressly recognised by the Constitution and, to the extent that it exists, it must be as one of the unenumerated personal rights guaranteed under Article 40.3.1º of the Constitution in accordance with the construction of that article adopted by the High Court and this court in Ryan v The Attorney General [1965] IR 294.

  59. Article 42.1 of the Constitution provides that

    The State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

    Article 42.5 provides that

    In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State, as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

  60. In G. v An Bord Uchtala, O’Higgins C.J., referred to the rights of children as follows:

    The child also has natural rights. Normally, these would be safe under the care and protection of its mother. Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his/her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 40.5 of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons.

  61. It was also made clear by Finlay C.J., giving the judgment of this court in In Re: The Adoption (2) Bill 1987, that Article 42.5 was not to be confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. He said:

    In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.

    In F.M. v The Minister for Education, Geoghegan J expressed the view that the right claimed on behalf of the applicant in that case - broadly similar to the right asserted on behalf of the applicants in the present case - was one of the unenumerated rights of children which parents were obliged to protect and uphold and that their failure to do so rendered that case an exceptional case within the meaning of Article 42.5 in which the State was obliged to uphold and protect the right.

  62. In the judgments which they deliver this morning, Hardiman J reserves the question as to whether this case was correctly decided and Murphy J expresses the view that it was wrong in law and should not now be followed. The correctness of the decision, however, was not challenged on behalf of the appellants in the present case or indeed in any of the previous cases to which they were parties.

  63. Geoghegan J arrived at his conclusion in FM v Minister for Education, at least in part, in the light of the passage I have already cited from the judgment of O’Higgins CJ in G v An Bord Uchtala. In his judgment, Murphy J points out that the proposition there laid down by the learned Chief Justice was not expressly assented to by a majority of the court. It is also clear that the passage in question is an application to the particular case of children of the doctrine of unenumerated rights first laid down by the High Court and endorsed by this court in Ryan v Attorney General.

  64. The implications of that doctrine have not at this stage been fully explored by the courts. Two questions, in particular, merit further consideration. The first is as to the criteria by which the unenumerated rights are to be identified. In the High Court in that case, Kenny J said that there were many personal rights of the citizen which flow from “the Christian and democratic nature of the State” which are not mentioned in Article 40. There was no explicit endorsement of that view in this court, perhaps because the right under discussion in that case was conceded on behalf of the Attorney General to be such an unenumerated right. Whether the formulation adopted by Kenny J is an altogether satisfactory guide to the identification of such rights is at least debatable. Secondly, there was no discussion in the judgment of this court as to whether the duty of declaring the unenumerated rights, assuming them to exist, should be the function of the courts rather than the Oireachtas.

  65. In my judgment in I O’T v B [1998] 2 IR 321, I said that:

    .... Save where such an unenumerated right has been unequivocally established by precedent, as for example in the case of the right to travel and the right of privacy, some degree of judicial restraint is called for in identifying new rights of this nature. (See, in this context, the remarks of McCarthy J writing extra-judicially in “Observations on the Protection of Fundamental Rights in the Irish Constitution”, Constitutional Adjudication in European Community and National Law, (Dublin, 1992) at pp. 179 - 182 and of G.W. Hogan in “Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990 - 1992) Irish Jurist NS 95).

  66. For the reasons there set out and in the light of the considerations so forcefully urged by Murphy J in his judgment in this case, I would have the gravest doubts as to whether the courts at any stage should assume the function of declaring what are today frequently described as “socio-economic rights” to be unenumerated rights guaranteed by Article 40. In my view, however, the resolution of that question must await a case in which it is fully argued.

  67. For the purposes of this case, it is sufficient to say that, assuming that the passage from the judgment of O’Higgins CJ in G v An Bord Uchtala correctly states the law, Geoghegan J was clearly correct in holding that the right claimed on behalf of the applicant in that case was one of the unenumerated rights of children which parents were obliged to protect and uphold.

  68. It should, however, be pointed out that the right thus identified, and which I have endeavoured to formulate with as much precision as possible, is one which arises from the special position of children. They are dependent in their childhood for the nurture, care and education, which is essential for their physical, intellectual and emotional growth, on their parents. In the great majority of cases, those needs are met by the parents, making use, obviously, in modern conditions of the great range of educational facilities now provided by the State, directly or indirectly. It is clear that the applicants in these and similar cases, because of behavioural problems deriving from various causes, require special treatment in secure units and, in the result, they clearly constitute exceptional cases in which the State is under a duty to ensure that that their right to such treatment is upheld.

    Locus Standi

  69. The law in general requires that a person, who seeks to challenge the validity of laws passed by the Oireachtas or actions or omissions of the executive, demonstrates that a particular right which he/she enjoys is threatened or endangered by the alleged invalidity: he/she cannot rely on the fact, if it be the fact, that the invalidity will have that effect on the rights of others, although not on his/hers. (See the decisions of this court in Cahill v Sutton, King v Attorney General, Madigan v Attorney General and Mhic Mhathuna v Attorney General.) That general principle, however, must on occasions yield to the overriding necessity that laws passed by the Oireachtas or acts and omissions of the executive should not go unchallenged, simply because it is difficult, if not impossible, for individual citizens or groups to establish that their individual rights are affected. Thus, in cases where legislation affected all the citizens in the same manner, as in the case of the electoral laws challenged in O’Donovan v Attorney General, the State’s becoming a party to the European Single Act in Crotty v An Taoiseach or the expenditure of money for an allegedly unlawful purpose by the Oireachtas and executive during a referendum campaign (McKenna (No. 2) v An Taoiseach) , the courts have afforded locus standi to persons whose bona fide concerns were not in doubt but who could not demonstrate that their individual rights or interests were particularly affected.

  70. In the present case, it is clear that, having regard to their respective ages, some of the applicants will derive no conceivable benefit from the order granted by the High Court. Indeed, since all of them are in the catchment area of the Eastern Health Board and the units to be provided on foot of the order are, without exception, situated outside that area, it is difficult to see what benefit will accrue to any of them from the provision of these units. While it may be that a general improvement in the provision of facilities on a national basis would ensure that the facilities available in the Eastern Health Board area were not being used to meet any deficiencies in other areas and that, in that indirect manner, children in need of facilities, including the applicants, might derive some benefit from their provision, the fact remains that, as the evidence clearly demonstrated, the damage was already done in the case of the applicants by the undoubted failure of the State to deal adequately with this problem in the past.

  71. However, I am satisfied that the submission advanced on behalf of the applicants that these considerations are relevant to the form of relief to which the applicants might be entitled rather than to their locus standi or lack of it is well founded. They have undoubtedly been affected by the failure on the part of the state agencies to meet their particular needs and that, of itself, would appear to me to afford them locus standi in these proceedings. I do not think that their position can be equated to that of the plaintiffs in Cahill v Sutton, King, Madigan and Mhic Mhathuna. In each of those cases, the plaintiffs were held to be precluded from questioning the constitutional validity of parts of the legislation under consideration which did not in any way affect their personal circumstances. In this case, the applicants are all persons who were held by the High Court to have been entitled to the provision of appropriate facilities which were in fact not provided to them and from which they would have benefited and it is clear from the evidence that that was a finding which the trial judge was entitled to make.

  72. It may be that in some of the cases the granting of the relief sought would not in any way redress the breach of their rights which has already taken place and, in other cases, would at best have a peripheral effect only so far as they were concerned. But, as persons affected by the failure of the Ministers to uphold their constitutional rights, I am satisfied that they have sufficient locus standi to raise the more general issue of public importance as to the nature of the remedy available in such cases.

    The Separation of Powers

  73. In Buckley v Attorney General [1948] IR 3, O’Byrne J, speaking for the former Supreme Court, said that,

    The manifest object of [Article 6 of the Constitution] was to recognise and ordain, that, in this State, all powers of Government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.

    In Boland v An Taoiseach, Griffin J, referred to Article 6 and other articles and said that

    In my view, these articles demonstrate that the Oireachtas, and the Oireachtas alone, can exercise the legislative power of the Government; that the Government, and the Government alone, can exercise the executive power of Government; and that the judicial power of Government can be exercised only by judges duly appointed under the Constitution in courts established by law under the Constitution ....

  74. Article 28.2 provides that

    The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.

  75. The Ministers in the present case, in determining that particular resources should be allocated to the building and staffing of the units which are now the subject of the order, were beyond argument exercising the executive power of the State on behalf of the Government as a whole. The monies required to provide and staff the units can only be made available to the Ministers by Dail Eireann under the appropriation machinery prescribed under Article 17.2 and then only on the recommendation of the Government.

  76. If it was established in any proceedings that the Government had acted in a manner which is in contravention of the Constitution, then the exclusive role afforded to them in the exercise of the executive power of the State would not prevent the courts from intervening with a view to securing compliance by the Government with the requirements of the Constitution. It is, however, not in dispute that the orders made by the trial judge in this case and in the earlier case of D.B. are without precedent in that they not merely find the executive to have been in breach of their constitutional duties: they also require the executive power of the State to be implemented in a specific manner by the expenditure of money on defined objects within particular time limits. No precedent has been cited for so far reaching an assumption by the courts of what is, prima facie at least, the exclusive role of the executive and the legislature.

  77. It is noteworthy that in F.M. v The Minister for Education, Geoghegan J not merely afforded no relief of that nature: he also refrained from granting any declaration that the respondents had failed to protect and vindicate the applicants’ constitutional rights until the State had been given an opportunity to make suitable arrangements for the accommodation of the applicant. It would appear from the judgment of Kelly J in D.B. that such declarations have been granted in other cases, but that was the first instance of an order having been granted by the High Court directing a Minister to ensure the provision of particular facilities within a specified time.

  78. In the case of D.D. v The Eastern Health Board, (U/R; Judgment delivered 3rd May, 1995) Costello J ordered the Board to care for and accommodate the applicant until further order in a unit or institution managed by it and to arrange for the provision of suitable education and therapeutic care for him, either in that unit or elsewhere. While mandatory injunctive relief of that nature is undoubtedly unusual, it was apparent from the judgment that the parties were agreed that the court had jurisdiction to make whatever order it considered appropriate in the interests of the applicant. The judgment cannot, in my view, be regarded as authority for the proposition that the court was entitled to make the order which it did in the present case.

  79. In Sinnott v The Minister for Education (U/R; Judgments delivered the 12th July 2001) this court set aside an order of the High Court which prescribed in detail the nature of the primary education and training which the plaintiff in that case was to receive. Since, in that case, a majority of the court held that the plaintiff was not entitled as a matter of constitutional right to the particular education and training - beyond the age of 18 - which was at issue in that case, it was not found necessary by them to determine whether an order in that form was consistent with the distribution of powers between the different arms of government under the Constitution. In my dissenting judgment in that case, however, I expressed the view that it was not so consistent and I agreed with the detailed analysis carried out by Hardiman J in his judgment of the issue. In particular, the following passage from his judgment in that case is worth recalling:-

    .... the constitutionally mandated separation of powers is a vital constituent of the sovereign independent republican and democratic State envisaged by the Constitution. It is not a mere administrative arrangement: it is itself a high constitutional value. It exists to prevent the accumulation of excessive power in any one of the organs of Government or its members, and to allow each to check and balance the others. It is an essential part of the democratic procedures of the State, not inferior in importance to any article of the Constitution.

  80. Both the High Court and this court have stressed on more than one occasion that, where the Oireachtas or the executive are found, whether by act or omission, to have acted in a manner which violates the Constitution, they are entitled to expect that the other responsible arms of Government will take such steps as are necessary to redress the wrongs in question. Thus, in McMenemin v Ireland this court found that, due to changing circumstances, the operation of certain statutory provisions had led to an unjust and inequitable result where the pension entitlements of a district judge were concerned. The court, however, set aside the finding in the High Court that the plaintiff was entitled to a declaration to that effect. In the course of his judgment Hamilton C.J., said

    This situation requires to be remedied by the Oireachtas in accordance with the provisions of Article 35 and 36 of the Constitution because the present situation has led to an unjust and inequitable result whereby the applicant has suffered loss, whether by way of excessive reduction in his pension or the payment of an inadequate lump sum by way of gratuity.

    The manner in which this situation is remedied is a matter for the Oireachtas and it is not open to this court to interfere with the manner in which this situation is dealt with by the Oireachtas unless the Oireachtas fails to have regard to its constitutional obligations in this regard and this court must assume at this stage that the Oireachtas will have regard to such obligations.

    I do not propose to make a declaration giving effect to my views because, having regard to the respect which the separate organs of Government, the legislature, the Government and the judiciary have traditionally shown to each other, I am satisfied that once the Government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with law and in accordance with its constitutional obligations.

  81. In the present case, of course, it is clear that, following the decision in F.M., the executive unhappily did not take the necessary steps to remedy the constitutional injustice which that decision had found to exist. Accordingly, it was understandable that, in subsequent cases, the High Court should have found it necessary to take the further step of granting a declaration that the executive were in breach of their constitutional duty to applicants in specific cases. The issue in this case is as to whether the court was also entitled to make an order specifying in detail the manner in which they were to carry out their functions so as to remedy the breach.

  82. I am satisfied that the granting of an order of this nature is inconsistent with the distribution of powers between the legislative, executive and judicial arms of Government mandated by the Constitution. It follows that, as a matter of principle, it should not have been granted by the trial judge, however much one may sympathise with his obvious concern and exasperation at the manner in which this problem had been addressed at the legislative and executive level. It is of fundamental importance that each of the organs of Government should not only carry out the duties imposed on it by the Constitution but should recognise, as Finlay C.J., pointed out in Crotty, that the Constitution also defines the boundaries within which they are confined in carrying out their functions.

  83. The difficulty created by the order of the High Court in this case is not simply that it offends in principle against the doctrine of the separation of powers, though I have no doubt that it does. It also involves the High Court in effectively determining the policy which the executive are to follow in dealing with a particular social problem. This difficulty is not met by the contention advanced on behalf of the applicants that the Ministers are being asked to do no more than carry into effect a programme prepared by them and which they assert it is their intention to implement. The evidence in this case establishes clearly that, in what is unarguably an extremely difficult area, approaches which at one time seemed appropriate may have to be reconsidered: in particular, officials are naturally concerned with how equivalent problems are being dealt with in other countries. There is no reason in principle why the executive should not adopt a flexible and open minded approach to the problems of children with special needs while at the same time ensuring that their constitutional right to have those needs met is respected. The making of the High Court order in this form, as the judgment of the trial judge emphasises, will make it necessary for the Minister to return to the High Court to obtain its sanction to any change in policy which necessitates a departure from the precise terms of the order. It cannot be right that the executive power of the Government can only be exercised in a particular manner, even though so to do would not contravene any person’s constitutional rights, without the sanction of the High Court.

  84. This, it should be emphasised, is not a case in which it is contended on behalf of the State that the facilities in question cannot be provided by them because the resources are not available to the State. As Costello J, as he then was, pointed out in O’Reilly v Limerick Corporation [1989] ILRM 181, it is not the function of the courts to make an assessment of the validity of the many competing claims on national resources: as he said, in exercising that function, the court would not be administering justice in the normal sense but would be engaged in an entirely different exercise, i.e., an adjudication on the fairness or otherwise of the manner in which other organs of State had administered public resources. In this case, the State acknowledge that the resources are available, but take issue with what they say is the assumption by the courts of the role of the executive in determining how best the resources, admittably available, should be applied in achieving the agreed result, i.e., the vindication of the children's constitutional rights. I find the conclusion inescapable that, since the High Court first began the difficult task of grappling with this problem, a Rubicon has been crossed, clearly from the best of motives, in which it is moving to undertake a role which is conferred by the Constitution on the other organs of State, who are also entrusted with the resources necessary to discharge that role in the interests of the common good.

    Conclusion

  85. I would allow the appeal and discharge the injunction granted by the High Court.

    A P P E N D I X

    Two six bedded high support units with ancillary educational facilities at Castleblaney in the County of Monaghan on or before the 31st December 2001

    A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2000

    A five bed high support unit at Elm House in the County of Limerick on or before the 31st October 2000

    A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001

    A five bed high support unit in the County of Clare on or before the 31st July 2001

    A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001

    An additional high support place in the Waterford region on or before the 31st May 2000

    An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May 2000

    An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2000

    A five bed high support unit for boys in the Southern Health Board region on or before the 31st August 2001

    Denham J

    1. ISSUES

  86. There are two matters arising for decision in this appeal. First, whether the applicants have the standing to seek the orders in the terms they were invited to by Kelly J. in 1999. Secondly, whether the court had jurisdiction to make the mandatory order it did against two Ministers of the executive.

    2. THE HIGH COURT JUGE,EMT

    2.1 Plans of the respondents

  87. Kelly J. was in charge of the High Court judicial review list before which these applicants and many others came seeking places for children in secure high support units. However, there was a lack of places for such children in special residential care. Witnesses on behalf of the respondents willingly described the plans of the executive for the future. Of these plans Kelly J. stated at p. 12 of his judgment, given on the 25th February, 2000:

    THE PLANS

    In October, 1998 the Department of Health and Children established what was called a senior managers’ resource group. That group was representative of all eight health boards in the State. It was set up to review the need for special residential care provision nationally and to make recommendations on the provision of an integrated service. Such an approach makes perfect sense and seeks to deal with the problem on a national basis. I was apprised of the setting up of this group at a hearing which took place in December, 1998 and January, 1999 in the case of the first named applicant. In the light of the information which I was given on those occasions I directed a further hearing to review progress to take place in April, 1999.

    At the April, 1999 hearing I was told that the senior managers’ resource group had met on three occasions since the preceding hearing. I was told that that group was recommending the provision of an additional 40 high support places in the seven health boards outside the Eastern Health Board area (48 places had already been identified as being required in the Eastern Health Board area and were to be provided in the Lucan and Portrane facilities, the subject of the earlier injunction). I was also told that each health board had undertaken a review of the need for further high support residential places identifying the necessity to provide an additional 40 places for children. These 40 places were broken down by region. 10 were to be provided in the Northern region and 30 in the Southern region. They were to be distributed between the various health boards in each of those regions. I was told that the estimated time frame for completing the development of all 40 places, subject to suitable premises being identified and the availability of staff, was 24 months. In other words by April, 2001 all 40 places ought to be available.

    In addition, I was given evidence that it was planned to have an additional 18 places which would come on stream in 1999. Eight of these were to be provided in the Southern Health Board at a premises known as Bessboro and ten were to be provided in the Mid Western Health board at an existing facility. These eighteen places were to be in operation by the end of 1999.

    I was encouraged by the evidence which I was given in April 1999. It appeared to demonstrate concerted action on the part of the State which would bring about a solution to the problem. I was impressed by the testimony given to me by the witness from the Department of Health and Children. I accepted that evidence, both as to the efforts which were being made and the time scale within which it was expected these facilities would be provided. I took the view that whilst the Court continues to be confronted on an almost daily basis with trying to find accommodation for problem children, the time scales which were indicated to me were in all the circumstances reasonable. It was suggested to the Court that in these circumstances a lengthy adjournment should be granted. I acceded to that application. I was not anxious to divert public resources into Court hearings when they could be better employed in providing the facilities for the children in need. I therefore adjourned the matter for eight months and indicated that I would conduct a further review in December, 1999. No objection was raised to this course by any of the parties to the litigation.

    In granting this lengthy adjournment I hoped that the review hearing scheduled for December, 1999 would be short because the progress indicated in April of that year would be maintained. This hope was unfortunately, misplaced.

    2.2 Culpable delay of respondents

  88. The learned High Court judge found that there had been culpable delay in implementing the plans. The passage of time was specifically relevant to the position of the first applicant. Kelly J. described at p. 18 how the application for an injunction took place:

    Following the hearing in December, 1999 I indicated that such were the culpable delays which had taken place that I was of opinion that prima facie there was an entitlement to injunctive relief so as to compel the Minister to proceed to provide the places in respect of which I had been given evidence. At that stage there was mooted for the first time a suggestion on the part of the Minister that the then applicant before the Court, namely T.D. would not be entitled to such an order because he was not then in need of such a place. His case has had to be adjourned generally because no place could be provided for him. In the light of this I suggested that the application for injunctive relief if it was sought to be pursued should be brought not merely in the name of T.D. but of all the other applicants who are in need of such facilities. Thus the present application is brought in the name of many of the applicants who have figured before this Court on a regular basis.

    2.3 Details of injunctions sought are those of the respondents policy

  89. The application to the High Court was for an injunction against the named parties to adhere to the plans which the executive itself had made and which had previously been described before the court by witnesses on behalf of the respondents. Kelly J. held:

    The present application seeks a series of injunctions directing the Minister to take all steps necessary and to do all things necessary to facilitate the building and opening of secure and high support units in places as follows:

    (a)

    Two six bedded high support units, with ancillary educational and recreational facilities, at Castleblayney in the County of Monaghan on or before the 31st January, 2002.

    (b)

    A five bed high support unit at Moyhill in the County of Limerick on or before the 31st July, 2000.

    (c)

    A five bed high support unit at Elm House in the County of Limerick on or before the 31st October, 2000.

    (d)

    A five bed high support unit in the County of Tipperary on or before the 30th April, 2001.

    (e)

    A five bed high support unit in the County of Clare on or before the 31st July, 2001.

    (f)

    A five bed secure unit for boys in the Mid Western Health Board region on or before the 31st December, 2001.

    (g)

    An additional two high support places in the Waterford region on or before the 31st May, 2000.

    (h)

    An additional high support place in the Tipperary region on or before 31st May, 2000.

    (i)

    An additional two high support places for girls in the Gleann Alainn Unit in Co. Cork on or before the 31st July, 2000.

    (j)

    A five bed high support unit for boys in the Southern Health Board region on or before the 31st August, 2001.

    I should make it clear that the number of units, their location and the dates which are set forth in each of these proposed injunctive reliefs are those specified by the officials who gave evidence before me on behalf of the Minister. In other words the injunction seeks to do no more than to compel the Minister to adhere to the latest plans which have been put before this Court within the time specified.

    2.4 Piecemeal approach

  90. The learned High Court judge considered the alternative option, the piecemeal approach, the taking separately of each of the cases in the list before him and the making of orders in each case. He stated:

    If an injunction is to be granted in each individual case then the Minister may be faced at any one time with a series of orders which will have to be complied with in the short term and which may seriously put out of kilter his overall plans created on a State wide basis. Although the reality of that difficulty was accepted nonetheless the Minister persisted to make this argument. It seems to me to be an argument which if successful will create more difficulties for the Minister than he already has. Nonetheless I must consider it on its merits and I now proceed to do so.

    2.5 Evidence

  91. The learned High Court judge considered the evidence which had been given before him. He referred to that of Mr. Ruairí Ó’Cillín, a divisional inspector of the Department of Education and Science, whose evidence included the fact that the applicants would be expected to avail of the facilities in respect of which injunctions were being sought; that the absence of the facilities would impact on some of them; that in the previous year five children had been detained in Oberstown Detention Centre on foot of court orders because there was not a suitable alternative high support or secure unit placement available for them, that the children had been placed in a criminal facility because there was nowhere else to put them; that the problem had been ongoing for years, since F.N. v The Minister for Education [1995] 1 I.R. 409; that there was evidence that high support or secure unit places are needed, that in some cases the children have suffered some damage as a result of the absence of the appropriate facility; that in the majority of cases the children’s chances would be better if the appropriate facility were available even given the difficulties of dealing with children who have problems in early, mid and late adolescence.

  92. Detailed relevant evidence was given by Mr. Ó’Cillín on the 18th January, 2000. Having referred to the situations of eight of the applicants Mr. Ó’C illín was asked:

    Q

    If (sic) relation to the various persons mentioned, how many of them would be expected to avail of any of the facilities in respect of which injunctions are sought before the court today?

    A

    I will just go through them again (READING NOTES). All of them.

    Q

    In practical terms, is the absence of the facilities sought before the court today something which impacts on the way in which they can be dealt with now?

    A

    For some of them it would, yes.

  93. Mr. Ó’Cillín gave evidence in relation to the position of each of the applicants. He agreed that some children had been placed in a criminal facility institution because there was nowhere else to put them, which situation had been ongoing since the F.N. case.

    2.6 High court decision on standing of applicants

  94. Having considered the evidence Kelly J. held:

    In light of this evidence it is difficult to see how as a matter of fact it can be said that these applicants do not have an entitlement to apply for the orders sought .... In these proceedings, the court has already found that the State has a constitutional obligation and I am concerned with the enforcement of it. Not merely that but I am dealing with applicants who quite apart from having disabilities which place them at risk also have a legal disability in that they cannot assert their own constitutional rights, this has to be done on their behalf either by a next friend or a guardian ad litem. Normally, a parent would exercise such a right but in many cases involving children like this the parents are either unwilling or unable to do so. The rights could of course be asserted by the Attorney General but he is always named as a respondent in these type of proceedings because the allegation is that the State itself which is represented by him is to be found wanting.

    I am of opinion that these applicants’ interests have been adversely affected, or stand in real or imminent danger of being adversely affected by the failure to provide the appropriate facilities.

    By no stretch of the imagination could these applicants be considered to fall within the description of those whom the practice rule of locus standi is designed to exclude namely, the crank, the obstructionist, the meddlesome, the perverse, or the officious man of straw (per Henchy J. in Cahill v Sutton [1980] I.R. 269 at 284).

    In my view they have a sufficient locus standi to mount this application and I reject the Minister’s contention to the contrary.

    3. THE HIGH COURT ORDER

  95. Thus, on the 25th day of February, 2000 the High Court ordered that the first and fifth named respondents in the first entitled proceedings do, in relation to all the entitled proceedings, take all steps necessary to facilitate the building and opening of secure and high support units and places of a specified nature, number of beds and locations by specified dates, being:

    (a)

    Two six bedded high support units with ancillary educational facilities at Castleblayney in the County of Monaghan on or before the 31st December 2001.

    (b)

    A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2001.

    (c)

    A five bed high support Unit at Elm House in the County of Limerick on or before the 31st October 2000.

    (d)

    A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001.

    (e)

    A five bed high support unit in the County of Clare on or before the 31st July 2001.

    (f)

    A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001.

    (g)

    An additional high support place in the Waterford region on or before the 31st May 2000.

    (h)

    An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May 2000.

    (i)

    An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2000.

    (j)

    A five bed high support Unit for boys in the Southern Health Board region on or before the 31st August 2001.

  96. Liberty was granted to the first and fifth named respondents (of the first entitled proceedings) on 72 hours notice to seek variation in the terms of the injunction relief granted.

    4. APPEAL

  97. Against the order and judgment of the High Court the Minister for Education, Ireland, the Attorney General and the Minister for Health and Children, hereinafter referred to as the respondents, have appealed. The Eastern Health Board did not file written submissions and took no active role in the appeal, but had counsel in court on a watching brief.

  98. There were two principal grounds of appeal. The first related to the separation of powers and to the form and extent to which courts may make a mandatory order. The respondents submitted that the court did not have jurisdiction to make the order, that the order was in breach of the separation of powers. Secondly, the respondents queried whether on the evidence the applicants, who it was accepted have locus standi to seek orders relating to their own cases, whether they have locus standi to seek orders in the terms they were invited to by Kelly J. The respondents submitted that the court orders go beyond the arena in which the applicants have locus standi . The respondents submitted that the applicants had no locus standi to seek the general order granted whereby particular buildings were directed to be built in particular places within particular time scales. Further, they submitted that there was no evidence as to the particular needs of each applicant and how they should be met in the future. On behalf of the respondents it was also submitted that if the State had failed the applicants in the past any such failure could be addressed by an award of damages; that the court order does not address the individual needs of the applicants into the future; rather the order will benefit different applicants of the future. In essence the respondents submitted that because the specific orders made do not on the evidence address the individual needs of all or any of the individual applicants, the applicants do not have sufficient locus standi to entitle the trial judge to make the orders he made.

    5. DECISION

    (A) The standing of the applicants

  99. There are a number of factors important to the issue of the standing of the applicants. I shall consider them individually.

    (i) Individual Remedy

  100. Each of the applicants has standing to bring his or her individual case before the court. Each has locus standi to bring an individual case and seek specific orders for his or her own case. The court has jurisdiction to make a decision in each case and where appropriate to grant an individual remedy, in other words to take such a piecemeal approach. The learned High Court judge pointed out that a piecemeal approach, an individual order for each of the many applicants listed in the special list of such cases, would be expensive and would pose problems for the respondent Ministers, as money would have to be diverted to the litigation, perhaps to the detriment of the development of high support places.

    (ii) The F.N. Case

  101. There is a constitutional obligation on the respondents to vindicate the constitutional rights of each of the children, the applicants. The relevant constitutional principles have been established and were not disputed on this appeal. F.N. v The Minister for Education [1995] 1 IR 409 held that a child has a constitutional right to be fed and to live, to be reared and educated and to have the opportunity of working and realising his or her full potential and dignity as a human being and that those rights must be protected and vindicated by the State. In the situation of a child with very special needs which could not be provided by his or her parents or guardian then there is a constitutional obligation on the State under Article 42, s.5 to make reasonable efforts to cater for those needs in order to vindicate the constitutional rights of the child. Secure accommodation, services and such arrangements as were necessary to meet the requirements of F.N. were held to be not so impractical or so prohibitively expensive as to come within any notional limitation of the State’s constitutional obligations. It is on that case, that law, that these cases proceeded. The decision in F.N. was not put in issue.

  102. On the premise of the F.N. case, on the 4th December, 1998 in T.D. v The Minister for Education, the first case listed herein, Kelly J. directed that the court should be informed of the progress of the work being done by the State to meet their constitutional obligation. The respondents provided the information in a report to the High Court. The matter was adjourned for a lengthy period to enable the work proceed. Further reports updated the information to the High Court in April, 1999 and December, 1999. In December, 1999 there was oral evidence. It was this evidence which gave rise to Kelly J. raising the matter of an application for injunctive relief.

    (iii) Rights Affected

  103. The rights of all the children were in issue. It is clear that the children’s constitutional rights were in issue as a consequence of the action or lack of action of the respondents.

    (iv) Delay

  104. In this case the parties were in court over a long period of time. Steps were taken. Information was given. Plans were explained. Initially the court adjourned the matters for a lengthy period - not even declaratory orders were sought by counsel for the applicants as all parties sought a solution. However, there was considerable delay which the learned trial judge held was culpable. There was evidence before the court upon which the learned trial judge could reasonably arrive at such a conclusion.

    (v) Children

  105. The applicants do not have access to the courts themselves, the cases have been taken on their behalf by their mother, father or guardian ad litem. The court has a duty to ensure that children’s rights of access are not impeded and that their constitutional rights are protected.

    (vi) The exceptional circumstances

    (a)

  106. The circumstances of this case were exceptional. After the F.N. case there was a growing list of cases of children seeking secure residential care, with high support. In time they came to be listed before Kelly J. mainly. Over time the burden of the interim arrangements became greater as the learned High Court judge was asked to consider arrangements for children in the list before him. It came about that Kelly J. was told by the State that certain things were being done. All parties accepted that the High Court should be told of the plans for the future of high security centres for children. It appeared that proper arrangements were being planned and would be available later. The court made interim orders having received this information.

    (b)

  107. The list of cases was not brought on for hearing. Counsel for the applicants informed the court that there were 40 to 50 cases in the list and that they were not brought on for full hearing in the context of what the High Court had been told. Consequently, as a result of the plans and general information given to the High Court by the respondents, the applicants’ cases were adjourned from time to time and other interim orders made insofar as it was possible.

    (c)

  108. In the circumstances counsel for the applicants, and others, did not press their case on for hearing. The individual cases were not fought out to obtain a specific declaration of breach of constitutional obligation by the State in each case. The circumstances were such that the reasonable inference was that the applicants were children for whom the State was not meeting its constitutional obligation but that the respondents were in the process of putting the necessary facilities in place, the respondents had accepted responsibility and planned, and were about to effect, a national arrangement. Pending that arrangement being put in place the cases were adjourned and interim solutions sought. This reasonable and sensible approach was adopted by all parties to the cases listed before Kelly J.

    (d)

  109. However, there was considerable delay with the plans. The cases were still listed in court. In the circumstances the first case listed in the title herein was taken as a vehicle which was accepted by all. The Minister for Health was joined at the request of counsel for the child.

    (e)

  110. It is quite clear that a considerable time had passed during which the list of cases was adjourned. The court was given information about the plans of the respondents and further adjournments were made. Counsel did not seek an injunction until that time had passed. Indeed, an injunction was sought only after the learned trial judge raised the possibility of such an approach. It is clear that there had been a reluctance by counsel on behalf of the applicants to seek an injunction. The list of children’s cases and the many adjournments pending the implementation of the plans of the respondents illustrate this fact.

  111. It is clear that counsel and the court were facilitating the respondents.

    (f)

  112. In all the circumstances it is clear that at the time of the motion for an injunction Kelly J. had been in charge of the list of cases for quite some time, had heard many applications in relation thereto, had heard evidence in relation to the children and had heard evidence in relation to the national plans of the respondents. Kelly J. was in a unique position of knowledge in relation to the position of all the parties. At the time the motion for an injunction arose each of the applicants had been before the court many times, reports had been furnished to the court and the learned High Court judge who dealt with these applicants had charge of the court list containing the cases of these and other applicants seeking the provision of special facilities, services and high security units.

    (vii) Conclusion on Standing of the Applicants

  113. In all the circumstances, including the above named important factors, I am satisfied that the learned High Court judge had jurisdiction and was correct to determine that the applicants had standing for the approach which he suggested. A group approach, of children from the long list of cases listed before the trial judge, as suggested by the learned trial judge, was an efficient and effective approach on behalf of all the State institutions, the State as a whole, toward determination of the issues. I would uphold the decision of the trial judge on this aspect of the appeal.

    (B) The Separation of Powers

    (i) The Separation of Powers in the Irish Constitution

  114. The Constitution provides that all powers of government, legislative, executive and judicial, derive from the people whose right it is to designate the rulers of the State: Constitution of Ireland, Article 6.1. These powers are exercisable under the Constitution only by or on the authority of the organs of State established by the Constitution: Constitution of Ireland, Article 6.2.

  115. The three great organs of government, legislative, executive and judicial, are given separate powers under the Constitution. They are independent institutions. The sole and exclusive power of making laws for the State is vested in the Oireachtas: Constitution of Ireland, Article 15.2.1. The executive power of the State is exercised by or on the authority of the Government: Constitution of Ireland, Article 28.2. Justice is administered in courts established by law by judges appointed in the manner provided by the Constitution: Constitution of Ireland, Article 34.1.

  116. Fundamental powers of government are distributed between these three great organs of State. A separation of powers is described although it is not a strict division or distribution of power. It is not a doctrine applied rigidly in the Constitution. A framework for government is established which includes a functional separation of powers to independent organs of State. It is the separation and independence of the institutions which is important. However, checks and balances are created between the three organs of State, for example the power given to the superior courts to review legislation, and the power given to the Government to appoint judges and to Dáil Éireann and Seanad Éireann to remove a judge.

    No Paramountcy

  117. It has long be recognised that no one of the three great institutions of State is paramount. In Murphy v Corporation of Dublin [1972] IR 215 at p. 234 Walsh J. stated:

    As the legislative, executive and judicial powers of government are all exercised under and on behalf of the State, the interest of the State, as such, is always involved. The division of powers does not give paramountcy in all circumstances to any one of the organs exercising the powers of government over the other.

  118. The scheme under the Constitution does not give any one institution paramountcy in all circumstances. There is a division of power between all three organs of State. All three exercise power, and the functions exercised by all three are exercised for the benefit of the State. It is to the benefit of the State that all three organs are independent in the exercise of their functions.

    Respect

  119. As all powers of government derive from the people and are exercised by the institutions of State established by the Constitution for the people it is proper that each branch of government respect the others. Thus, when the courts commenced reviewing legislation under the provisions of the Constitution of Ireland, 1937 they developed the concept of the presumption of constitutionality. In Pigs Marketing Board v Donnelly Dublin) Ltd [1939] 116. IR 413, Hanna J. stated at p. 417

    When the court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representative of the people, is presumed to be constitutional unless and until the contrary is clearly established.

    The principle was explained by O’Byrne J. in Buckley (Sinn Féin) v The Attorney General [1950] IR 67 at p. 80 as:

    .... [it] springs from, and is necessitated by, that respect which one great organ of the State owes to another.

    In exercising the functions of State it behoves each organ of State to respect the other organs of State and their independence and functions and to act accordingly.

    (ii) Separation of Powers and Court Intervention

  120. The separation of powers has long been recognised in case law. In Buckley (Sinn Feín) v Attorney General [1950] IR 67 at p. 81, O’Byrne J. giving the judgment of the court stated:

    The manifest object of [Article 6] was to recognise and ordain that, in the State, all powers of government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.

  121. However, the doctrine of the separation of powers does not protect the Government if there is a clear disregard of its constitutional powers and duties. The law was described by Fitzgerald C.J. in Boland v An Taoiseach [1974] IR 338, where he held at p. 361-362:

    .... [Article 6] .... [established] beyond question the separation of the executive, legislative and judicial powers of government .... Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.

  122. This approach was also taken in the same case by Griffin J., at p. 370 - 371, where, having referred to Article 15.2.1, Article 28.2 and Article 34.1, he stated that:

    In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view it would be the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts.

  123. The duty of the courts to intervene was identified by Finlay C.J. in Crotty v An Taoiseach [1987] IR 713 at p. 775:

    Furthermore, I interpret the decision of Griffin J. in Boland v An Taoiseach [1974] IR 338 as being consistent with the view already expressed by me that where an individual person comes before the courts and establishes that action on the part of the executive has breached or threatens to breach one or other of his constitutional rights that the courts must intervene to protect those rights but that otherwise they cannot and should not.

  124. Having considered the words of Fitzgerald C.J. in Boland v An Taoiseach [1974] IR 338 especially at p. 362 and the words of Finlay C.J. in Crotty v An Taoiseach [1987] IR 713 especially at p. 775, Hamilton C.J. stated in McKenna v An Taoiseach (No. 2) [1995] 2 IR 10 at p. 32:

    These dicta clearly establish that

    (1)

    The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts with the restraints imposed by the Constitution on the exercise of such power.

    (2)

    If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

    (3)

    The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.

  125. Consequently, it has been determined in many cases that the courts are entitled to intervene if there has been a clear disregard by the Government of its powers and duties, under the Constitution. In fact the courts have a duty to intervene in such circumstances. This arises because the courts are the guardians of the Constitution.

  126. The courts have the power and obligation to protect constitutional rights. This protection may be acknowledged and remedied after an event. However, the court also has jurisdiction to protect a person from an anticipated breach of a constitutional obligation. This was recognised by Walsh J. in East Donegal Co-operative v Attorney General [1970] IR 317 at p. 338, where he stated:

    Rights which are guaranteed by the Constitution are intended to be protected by the provisions of the Constitution. To afford proper protection, the provisions must enable the person invoking them not merely to redress a wrong resulting from an infringement of the guarantees but also to prevent the threatened or impending infringement of the guarantees and to put to the test an apprehended infringement of these guarantees.

  127. It has long been recognised that the courts have a wide power to remedy breaches of constitutional rights. Perhaps the most quoted dictum on the topic was that in The State (Quinn) v Ryan [1965] IR 70 by O’Dalaigh C.J. who stated at p. 122:

    It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented.

    The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and the Courts’ powers in this regard are as ample as the defence of the Constitution requires.

  128. However, the breadth of remedy described was repeated in other decisions. For example, in Byrne v Ireland [1972] IR 241 at 264, Walsh J. stated:

    In several parts in the Constitution duties to make certain provisions for the benefit of citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights.

    He continued at p. 280:

    In my view, that was clearly enforceable against Saorstát Éireann if no provision had been made to implement that Article of its Constitution. There are several instances in the Constitution of Ireland also where the State undertakes obligations towards the citizens. It is not the case that these are justiciable only when some law is being passed which directly infringes these rights or when some law is passed to implement them. They are justiciable when there has been a failure on the part of the State to discharge the obligations or to perform the duties laid upon the State by the Constitution. It may well be that in particular cases it can be shown that some organ of the State already has adequate powers and in fact may have had imposed upon it the particular duty to carry out the obligation undertaken by the State, but that would not mean that the State was not vicariously liable for the non -performance by its various organs of their duties.

    He stated also at p. 281:

    Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available.

  129. It is clear from the cited decisions that the High Court had jurisdiction to make an individual order in relation to each of the applicants, and individually for the others in the list of children seeking a similar remedy, in relation to their constitutional rights and the respondents’ constitutional obligations. This was not contested. The issue before this court is whether the High Court had jurisdiction to make the form of order which it did which was mandatory and addressing a number of person’s rights rather than an individual person’s right. The nature of the remedy in this case has given rise to the submission on behalf of the respondents that the courts, applying the doctrine of the separation of powers, have not got jurisdiction to make the mandatory orders made in these cases.

    (iii) Mandatory Orders

    Practice

  130. The State submitted that the mandatory orders were in effect a transfer of overall policy to the courts from the executive and consequently were contrary to the separation of powers. While accepting that a piecemeal approach would be constitutional (i.e. a specific order for each of the applicants) it was submitted that the order in question was a step too far.

  131. In general the courts do not favour the making of mandatory orders against the executive. If a constitutional issue arises relevant to executive actions then the best practice is for the courts to make a finding and declare a right in a situation where the executive has indicated that it will abide by the determination of the court. In consequence a mandatory order is unnecessary, a simple declaratory order suffices. As a matter of practice it happens regularly that counsel indicate to a court that should the decision be against the executive (be it a Minister or other body) then a mandatory order would not be necessary. This is an illustration of the two institutions (the court and the executive) exercising their powers for the ultimate benefit of the State as a whole, with the interest of the State and the people as the fundamental concern. Quite apart from constitutional principles such as the separation of powers, mandatory orders sit uneasily with the difficult dynamics of social deprivation and behavioural difficulty.

  132. A decision of a court, even if it is in relation to a single individual, may affect policy. The expense of the case itself and its outcome may have profound and far reaching effects. Simply because a case affects a policy of an institution does not per se render it unconstitutional or bring it into conflict with the principle of the separation of powers. Nor is it a reason to abdicate the responsibility of a court to give a decision on the constitutionality of a situation. That is illustrated by the many cases cited previously where courts have not abdicated their responsibilities.

    Policy of Respondents

  133. In this case the order is not contrary to the policy of the respondents - it is based on the evidence of the respondents as to their policy. It is based on the respondents’ policy. The issue for determination is whether the order mandating the respondents’ own policy breaches the doctrine of separation of powers so as to be an impermissible order under the Constitution.

    O’Reilly Case, distinguished

  134. Reliance has been placed on the decision of Costello J. in O’Reilly v Limerick Corporation [1989] ILRM 181. The plaintiffs were members of the traveller community residing in caravans on unofficial sites in the city of Limerick in conditions of considerable poverty and deprivation. They did not desire to be rehoused by the Corporation but wished for sites with hard surfaces on which their caravans could be placed, toilet facilities, running water and a regular refuse collection. They sought a mandatory injunction directing the Corporation to provide them with adequate serviced halting sites, claiming that the Corporation had a duty to do so under the Housing Act, 1966. They also claimed that the State should pay them damages for past sufferings which they had undergone. This latter claim was based on an allegation that the conditions which the plaintiffs had been required to endure amounted to a breach of their constitutional rights.

  135. Costello J. refused to grant an order directing the defendant corporation to provide serviced sites, rejecting the plaintiffs’ claim for damages, but granting a declaration that the defendants were obliged to review the building programme. He held that the Housing Act, 1966 does not impose a duty upon a housing authority to provide serviced halting sites. In relation to the application for damages on the basis of the claim that the plaintiffs had a constitutional right to be provided by the State with certain physical resources and services, the High Court held that for the court to adjudicate on this claim it would have to consider the fairness of the manner in which the organs of the State had administered public resources. There was no decision by the High Court that the plaintiffs had constitutional rights. Costello J. held that the case involved a claim that there had been a failure to distribute adequately for the plaintiffs a portion of the community’s wealth. Costello J. contrasted distributive justice and communicative justice. He held that the claim in O’Reilly’s Case was for distributive justice. He stated:

    .... I am sure that the concept of justice which is to be found in the Constitution embraces the concept that the nation’s wealth should be justly distributed (that is the concept of distributive justice), but I am equally sure that a claim that this has not occurred should, to comply with the Constitution, be advanced in Leinster House rather than the Four Courts.

  136. I am satisfied that O’Reilly is distinguishable and I do distinguish it from this case on the following grounds:

    1. The facts in O’Reilly are entirely different from the facts in this case. In O’Reilly the initial part of the case was based on an interpretation of the Housing Act, 1966. As Costello J. pointed out, to succeed in their main claim the plaintiffs had to establish that Limerick Corporation as a housing authority under the Housing Act, 1966 had a duty to provide them with halting sites and that it was a proper case in which the court should make a mandatory order directing them to carry out that duty. He determined that the Housing Act, 1966 did not impose a duty on a housing authority to provide serviced halting sites. No such statutory interpretation arose in O’Reilly

    2. The section of the judgment relied on is the claim for damages. This was grounded on a claim that constitutional rights had been breached. It was submitted that the plaintiffs had a right to a share of the national resources. In effect, a claim was being made that specific socio-economic rights were constitutional rights grounded in the unenumerated rights section of the Constitution or rights in relation to the family and were breached by the defendants. That is not the situation in this case. There was no such claim.

    3. This case proceeded on the premise of the F.N. decision. It appears that all parties proceeded on the basis that the applicants had the constitutional rights identified in F.N.

    4. Costello J. in O’Reilly did not determine that there was a breach of a Constitutional right. Rather he analysed the concept of distributive justice. I agree with his analysis of distributive justice and the fact that such a concept does not apply to the justice rendered by the courts. The distribution of the nation’s wealth is a matter for the executive and the legislature. In this case the applicants are not making a case that the nation’s wealth be justly distributed. Their cases have been brought to protect constitutional rights which had been recognised and acknowledged.

    5. The courts have a duty to make adjudications to protect constitutional rights. It was this jurisdiction the High Court evoked. The cases proceeded on the back of the F.N. case. In fact when F.N. was decided there were other cases decided on the same issues such as G.L. v Minister for Justice, Equality and Law Reform and D.T. v Minister for Justice, Equality and Law Reform (Unreported judgments), The High Court, (Geoghegan J.) 24th March, 1995.

    6. No argument was made that the F.N. case be reviewed by this court. Consequently this case is different from O’Reilly in that in this case recognised constitutional rights existed in circumstances where the High Court was being requested to protect those rights.

    7. In such circumstances, where there is a constitutional duty on behalf of the court to protect a constitutional right, the issue of a mandatory order may arise. This was not the situation in O’Reilly.

    8. I am satisfied that in exceptional circumstances it may be open to the court to make a mandatory order in circumstances where a constitutional right has not been protected by defendants and where there are no reasonable grounds to balance such a decision against the protection of constitutional rights. This issue did not arise for consideration in O’Reilly. The basis of O’Reilly was entirely different. In the applicants’ cases before this court exceptional circumstances exist in a situation where constitutional rights have not been protected - indeed they have been breached.

    Sinnott Case

  137. There was no issue on the separation of powers for decision in Sinnott v The Minister for Health, as I stated at the time, (Unreported, Supreme Court, 12th July, 2001). No decision fell to be made on the issue of a mandatory order.

  138. It is clear from the case law that in rare and exceptional cases, to protect constitutional rights, a court may have a jurisdiction and even a duty to make a mandatory order against another branch of government. The separation of powers in the Constitution of Ireland is not absolute. It is a fundamental principle underlying the exercise of the powers of the basic institutions of the State and applied in a functional manner. It is a principle relevant to the three great organs of State - the legislature, the executive and the courts - which are independent institutions - and their dynamic relationship one with the other. However, the powers and duties of each organ of State extend across theoretical lines of separation and checks and balances established in the Constitution breach a rigid concept of the separation of powers. The doctrine of the separation of powers has to be balanced with the role given to the courts to guard constitutional rights.

    (iv) Guardian of Rights

  139. An important principle of the Constitution is that the basic law - the Constitution - is supreme and the superior courts are its guardian. The jurisdiction of the High Court was specifically stated to extend to the question of the validity of any law having regard to the provisions of the Constitution: Article 34.3.2. Thus the Constitution specifically requires the court to adjudicate by judicial review the constitutionality of legislation; it is the power, duty and responsibility of the High Court and the Supreme Court to guard the Constitution. This is a fundamental principle in the Constitution. The principles of the separation of powers and the principle that the Constitution is supreme must be construed harmoniously.

  140. The Constitution should be construed so that fundamental principles may be interpreted harmoniously. In The People (D.P.P.) V. O’Shea [1982] IR 384 at p. 426, Henchy J. stated:

    Any single constitutional right or power is but a component in an ensemble of interconnected and interacting provisions which must be brought into play as part of a larger composition, and which must be given such an integrated interpretation as will fit harmoniously into the general constitutional order and of modulation. It may be said of such a Constitution, more than of any other legal instrument, that ‘the letter killeth, but the spirit giveth life’. No single constitutional provision .... may be isolated and construed with undeviating literalness.

  141. In a situation, thus, where there is a balance to be sought between the application of the doctrine of the separation of powers and protecting rights or obligations under the Constitution the courts have a specified constitutional duty to achieve a just and constitutional balance. Whilst acknowledging the separation of powers, and the respect which must be paid to all the great organs of State, if it is either a matter of protecting rights and obligations under the Constitution or upholding the validity of a statute then the Constitution must prevail. Similarly in relation to constitutional rights the appropriate institution must exercise its powers in the light of the of the Constitution. When a court is required to determine such an issue a declaratory order is the preferable procedure. On those very rare occasions when such a declaratory approach is not feasible then the court has the power and indeed the duty and responsibility to uphold the Constitution and to vindicate constitutional rights. This is at the core of the duty and responsibility of the High and Supreme Courts of Ireland.

  142. The very nature of the division of power under the Constitution together with its checks and balances may cause tension between the organs of government. The level of that tension may ebb and flow. However, all institutions of State have a responsibility to the State itself to act in a constitutional manner which is to the benefit of the State as a whole. Consequently, when an issue arises, such as in this case, where the boundaries of the separation of the powers are in issue, both of the relevant institutions should approach the matter constructively. This approach may be illustrated by a relatively common situation which arises where counsel for the executive may argue against a plaintiff’s claim and interpretation of the Constitution but counsel may inform the court that should the court hold against the executive then there is no need for a mandatory order. By such a practice institutions act constructively for the State. The executive argues strongly for that which it considers the correct interpretation of the Constitution and the law. The court exercises its duty and responsibility in applying the Constitution and the law. A constitutional decision is achieved. Parties proceed in a manner mindful of the scheme of checks and balances established under the Constitution. Indeed such a constructive approach in implementing a constitutional obligation is illustrated by the actions of counsel for all parties involved in this action between 1998 and 2000. They and the judge were mindful of the situation of all the applicants and all the respondents.

    (v) Nature of Order - Executive’s Policy

  143. The very nature of the order in this case is important. It is an important factor that the mandatory order in issue is to implement the respondents’ own plans. These plans had been willingly (and long previously) presented to the court, by which the court was guided in its initial decisions to adjourn. Also important is the express right given to apply to the court, the implied right to apply to the court to review the situation, and the de facto situation that Kelly J. had for years managed these lists of cases where matters were constantly under review, weekly, if not daily or hourly, and where counsel had, quite appropriately, kept the court fully appraised of the situation. The nature of the order while being in fact the policy of the respondents corresponded also with the vindication of the previously recognised constitutional rights of the applicants and the obligations of the State.

    (vi) Factors

  144. There are important factors in this case relevant to the analysis of the balance to be achieved between protecting constitutional rights, enforcing constitutional obligations and the application of the doctrine of the separation of powers. The important factors include:

    1. The first matter is to note what the case is not. This is not a case where there is a conflict between caring parents and the State as to a responsible decision to be made in relation to the children. These children are in the care of the State.

    2. Nor is there an issue as to the welfare of the children - it is clear that the welfare issue of the children will be best met by places in secure high support units.

    3. This case is grounded fundamentally on Article 42.5 of the Constitution. Thus it is grounded on concepts including education and the common good. The right to education is a specially acknowledged right under the Constitution. The common good is a collective concept, to be advanced by the State, through each of its institutions which include the respondents and the courts. Thus the case has a firm constitutional grounding.

    4. The applicants each have constitutional rights which were not contested.

    5. These rights were described in the F.N. case. There was no challenge at the hearing of this appeal to the decision in F.N.

    6. The applicants are children. This raised at least two fundamental matters of importance:

      1. the court has a duty to ensure that the process enabled the children’s rights be protected,

      2. the nature of the constitutional rights in issue meant that time was of the essence.

    7. There had been culpable delay by the respondents.

    8. Delay is an important factor in light of the nature of the rights being protected and the age of the applicants and the effect of not vindicating the rights during the children’s youth. Damages at a later state would not be an adequate remedy.

    9. For some considerable time the judge had been in charge of the list of cases of children, including the applicants and others, who were seeking to have their constitutional rights to high support places protected. He had an extensive knowledge of all the cases.

    10. The judge, with the support of all parties, heard evidence of the plans of the relevant bodies for the respondents. All parties participated willingly in setting out for the judge the plans of the respondents for establishing relevant facilities.

    11. Counsel for the applicants did not process their cases, in light of the evidence of the respondents of their plans and the expectation that the plans would be implemented. Thus the applicants altered their position in not proceeding with their proceedings. This alteration was to their detriment.

    12. The respondents fully informed the court of their plans, which plans the court accepted as being appropriate in the circumstances. As a consequence the respondents had the benefit of considerable lengthy adjournments and the absence of litigation individually by each applicant and others seeking individual orders relating to their constitutional rights and obligations. The respondents benefited from their actions and the actions of the applicants.

    13. The learned trial judge (after the culpable delay) suggested that the matter proceed by way of motion for an injunction.

    14. The order of the court was to enforce the policy of the executive. It was not a situation where the court investigated the basis for a policy or established a policy. The policy being enforced was that of the executive with the right to apply to vary. It was a policy consistent with previously recognised constitutional rights and the obligations of the State as a whole.

    (vii) Exceptionalism

  145. This case includes the concept of exceptionalism. This term has been used to describe cases which include exceptional circumstances which call for an exceptional decision. The Constitution specifically refers to exceptional cases - indeed it does so in an article most relevant to this case. Article 42.5 states:

    In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

  146. The term ‘exceptional’ has a clear meaning. The Concise Oxford Dictionary, 8th Edition, describes the term as:

    1.

    forming an exception

    2.

    unusual; not typical (exceptional circumstances)

    3.

    unusually good; outstanding.

  147. I am satisfied that in the Constitution the term ‘exceptional’ means forming an exception, unusual, not typical, being exceptional circumstances. Thus the Constitution specifically recognises exceptional cases and that in such exceptional cases decisions of an exceptional nature may be made. Indeed this concept is at the root of the concept of justice itself where a decision is sought that is just for the parties involved.

    (viii) A Balance

  148. In determining this matter a harmonious balance of the rights and duties of all the parties is sought. In the exceptional circumstances of this case the constitutional rights, obligations and principles must be weighed in the balance. In the rare and unusual circumstances of this case where each individual has rights and the respondents have obligations the fact that the cases proceeded by way of a type of group action for the mandatory injunction relating to the buildings rather than a series of individual orders for individual places in such buildings has meant that the respondents have now sought a decision on the balance to be achieved as between constitutional obligations and duties on the one hand as against the enforcement of a doctrine, the separation of powers. The Constitution established the special duty of the courts to protect fundamental rights and the Constitution. This duty, a relatively advanced concept in 1937, is now a duty commonly found in constitutions of democratic states. The court has a right, and indeed a duty, to make a mandatory order in certain circumstances if there has been a breach of the Constitution, if an obligation has been evaded, if constitutional rights are being set at nought. I am of the opinion that it would have been an abdication of judicial duty to continue to adjourn the applicants’ cases on a chimera of plans. This left the High Court in a position whereby it could make individual orders for each of the applicants. Such an approach, it is agreed, would not have been contrary to the doctrine of the separation of powers. Instead, the High Court took the collective approach herein which is the matter at issue.

    (ix) Judicial Adjudication

  149. The court is a judicial decision maker. It does not plan issues for decision. It has no choice over the issues upon which it is called upon to make decisions. Cases are brought to court and they set the court’s agenda. Further, a decision has to be made. The matter cannot be sent to another body for consideration, for a report etc. A court adjudication is of its nature a different type of decision to that made in the legislature or the executive. The decision is made within the Constitution and the law which form the parameters of the adjudication.

  150. In seeking the decision the court may be in a situation where the decision is clearly indicated, there is a single possibility. Often, however, especially in relation to issues of rights, there are conflicting rights to be weighed and a proportionate and balanced decision sought. Such a decision involves the exercise of judicial discretion within the parameters of the Constitution to achieve a just decision. Under the Constitution such a decision is required of the superior courts.

    (x) Judicial Discretion and Democracy

  151. The judiciary are the third branch of government in the democratic Irish State. The Constitution did not establish a structure of government with a rigid separation of powers. It incorporated a doctrine of the separation of powers and a system of checks and balances by one branch of government of another. The role of the superior courts in relation to the judicial review of legislation to review its constitutionality was specifically incorporated in the Constitution.

  152. It was a sophisticated step taken by the people in 1937 to incorporate such a system of judicial review. Previously Ireland had been governed by the Westminster model - the simple parliamentary sovereignty - democratic majority system - where parliament was supreme and the courts did not have such power of constitutional judicial review. Subsequently Westminster has been changed somewhat by the introduction of the Human Rights Act, 1998.

  153. However, it has not espoused judicial review as introduced to Ireland in the Constitution of Ireland, 1937.

  154. In 1937 Ireland did not favour the Westminster model. Rather an approach was taken more similar to that of the United States of America. As a consequence of this approach the High and Supreme Courts of Ireland were given the Constitutional duty of judicial review. The courts were made guardians of the Constitution.

  155. The 1937 Constitution and the judicial review element is in keeping with a modern democratic state where there are important elements to protect, being of the democratic majority, fundamental rights, and the rule of law. The function of the courts in protecting fundamental rights and the rule of law is part of the balance within a modern constitution. By including such a balance the democratic values, fundamental rights and the rule of law are protected. The ultimate decision maker is neither a majority of representatives elected (in the executive or the legislature) nor the judges but the people in a referendum. By such a system the fundamental rights and the rule of law are protected.

  156. Under the Constitution powers are given to each branch of government. The three branches, legislative, executive and judicial, have powers which are limited, which are subject to checks and balances. Constitutional government is limited government. The separation of powers is an important aspect of the Constitution. However, in addition to that doctrine there is the jurisdiction of the courts to protect fundamental rights. This is not only a jurisdiction but a duty and obligation of the courts under the Constitution.

    The Constitution of Ireland, 1937 presciently heralded in the post World War II democratic constitutions of many countries which include judicial protection of fundamental rights by judicial review. The Constitution of Ireland, 1937 set out fundamental rights, yet it predated the U.N. Declaration of Human Rights and the European Convention on Human Rights. The Constitution of Ireland, 1937 included the duty of judicial review for the superior courts as part of the scheme to protect fundamental rights and the rule of law. This model is now being developed across Europe and the common law world. An apt description of the part played by superior courts in countries with modern constitutions, democracy, the rule of law, fundamental rights and judicial review has been given by Chief Justice Barak of Israel. The place of judicial review and democracy was analysed by the Israeli Supreme Court in United Mizrahi Bank Ltd. v Migdol Village (1995) 49(4) P.D. 221. Although the main issue was as to the power of the court by judicial review to declare a statute unconstitutional the analysis is analogous to the issues in this case, the protection of fundamental rights by the court. Barak C.J. stated:

    .... judicial review of constitutionality is the very essence of democracy, for democracy does not only connote the rule of the majority. Democracy also means the rule of basic values and human rights as expressed in the constitution. Democracy is a delicate balance between majority rule and the basic values of society. Indeed democracy does not mean formal democracy alone, which is concerned with the electoral process in which the majority rules. Democracy also means substantive democracy, which is concerned with the defense of human rights in particular .... Judicial review of constitutionality therefore prevails over what is known as the ‘counter-majoritarian dilemma’. One way to accomplish this is by emphasizing that when judges interpret the constitution and invalidate contradictory laws they give expression to the fundamental values of society that have developed over time. Thus the court safeguards constitutional democracy and maintains the delicate balance upon which it is based. Remove majority rule from constitutional democracy and its essence is harmed. Remove the sovereignty of fundamental values from constitutional democracy and its very existence is called into question. Judicial review of constitutionality enables the society to be true to itself and to honor its basic conceptions. This is the basis for the substantive legitimacy of judicial review. This is also the true basis for the principle of constitutionality itself. We are bound by the constitution that was enacted in the past because it expresses the fundamental outlook of modern society. It may therefore be said that each generation enacts the constitution anew. By means of judicial review we are loyal to the fundamental values that we took upon ourselves in the past, that reflect our essence in the present, and that will direct our national development as a society in the future. It is therefore no wonder that judicial review is now developing. The majority of enlightened democratic states have judicial review. It is difficult to imagine the United States, Canada, Germany, Japan, Spain, Italy, and many other nations without judicial review of constitutionality. The Twentieth Century is the century of judicial review. Thus real meaning is given to the principle of constitutionality to constitutional democracy and to the proper balance between majority rule and human rights between the collective and the individual. It may be said that whoever argues that judicial review is undemocratic is in effect arguing that the constitution itself is undemocratic. To maintain that judicial review is undemocratic is to maintain that safeguarding human rights is undemocratic. To maintain that judicial review is undemocratic is to maintain that defending the rights of the individual against the majority is undemocratic. The democratic nature of the state is not determined by the representative nature of each of its branches but rather by the democratic nature of the government as a whole. In examining the democratic aspect of judicial review it must be noted that every constitution provides for methods by which it may be amended. As long as these methods are not rigid they allow today’s majority to realize its aspirations. The methods by which a constitution may be amended reflect the balance that the society wishes to maintain between past and present between long term values and short term aspirations, between value and policy. These methods are set forth in the constitution itself and are shaped by political forces.

  157. I adopt this analysis of the place of judicial review and the protection of fundamental rights in a modern democratic constitution. The Constitution of Ireland, 1937 is such a modern constitution which protects democracy, fundamental rights and the rule of law. It is a duty and obligation of the courts to protect constitutional rights and to judicially review decisions. This is done within the parameters of the Constitution and the law. Judicial adjudications are made and discretion is exercised in accordance with the Constitution and mindful of the principle of the separation of powers. However, ultimately the court is the protector and guarantor of the fundamental rights and the rule of law under the Constitution. Such a duty to guard fundamental rights should not be shirked or abdicated.

    (xi) Common Good

  158. The concept of the common good is a principle itself incorporating a balance. It has been referred to in cases relating to a variety of rights under the Constitution. It is a concept at the foundation of the Constitution. The preamble to the Constitution states:

    We, the people ....

    .... seeking to promote the common good ....

    .... adopt, enact and give to ourselves this Constitution.

  159. Article 42.5, which is of particular relevance to these cases, specifically incorporates the concept of common good, as noted previously in this judgment. All three of the great institutions of State have a duty to promote the common good in accordance with the Constitution.

  160. The respondents, as part of the State, as guardian of the common good, made plans and the respondents informed the High Court of their plans for the benefit of these (and other) children. The cases were adjourned pending the implementation of the plans. However there was culpable delay. The court, a branch of government of the State, as guardian of the children’s constitutional rights, had a duty to vindicate those rights - and in the circumstances of this case this involved a concept of the common good for all the applicants.

    (xii) Conclusion on the Separation of Powers Issue

  161. The circumstances of these cases are exceptional. They include factors as identified in this judgment. There are circumstances in which a court has a duty to intervene to protect constitutional rights. The court has a jurisdiction to make mandatory orders. The orders sought in this case are at the extremity of this jurisdiction. Consequently, in making any such order a court has a heavy burden to acknowledge the respect it must give to the people’s other organs of state and act accordingly. In light of the exceptional circumstances of these cases I am satisfied that the court had a jurisdiction to make the mandatory orders in issue. In so deciding I am persuaded also by the ongoing nature of the review of the situation by the High Court and the right (expressed and implied) of the respondents to apply to the court. On any such application it is appropriate for the court to approach the issues with the respect required for great institutions of state - the respondents. I am satisfied that the order in question is necessary in the circumstances to vindicate the rights of the children. By such an order the people’s institutions of state may, on balance, achieve a vindication of the children’s constitutional rights. In the circumstances the use of a mandatory order directing the Minister to take all necessary steps and do all things necessary to facilitate the building and opening of the named high support units (the provision of which the Minister had previously indicated to the court was already in hand), was consistent with the obligation of the court to vindicate constitutional rights.

    6. CONCLUSION

  162. In the circumstances I am satisfied that the applicants had standing, they had the right of access to the court, to seek the order in issue. I am also of the opinion that in the exceptional circumstances of these cases it was within the court’s jurisdiction to make the mandatory order. The order is a proportionate response in the exceptional circumstances to protect the rights of the applicants. I would not interfere with the exercise of discretion by the learned High Court judge. I would dismiss the appeal.

    Justice Murphy

  163. In his judgment the Chief Justice concluded that the mandatory order made by Kelly J. in this matter on the 25th day of February, 2000, though made from the best of motives, constituted an impermissible intrusion by the judiciary into the role conferred by the Constitution on other organs of State. The Chief Justice decided that the learned trial judge was not entitled to make the mandatory order in question as a means of vindicating a constitutional right of the applicant. I would go further. I would question the existence of the constitutional right in respect of which the order was made.

  164. With the exception of Article 42 of the Constitution, under the heading “Education”, there are no express provisions therein cognisable by the courts which impose an express obligation on the State to provide accommodation, medical treatment, welfare or any other form of socio economic benefit for any of its citizens however needy or deserving. It is true that the exploration of unenumerated constitutional rights in Ryan v Attorney General [1965] IR 294 has established the existence of a constitutional right of “bodily integrity”. The examination of that right in the State (C) v Frawley [1976] IR 365 and the State (Richardson) v The Governor of Mountjoy Prison [1980] ILRM 82 certainly establishes that the State has an obligation in respect of the health of persons detained in prisons. However these authorities do not suggest the existence of any general right in the citizen to receive, or an obligation on the State to provide medical and social services as a constitutional obligation.

  165. In G. v An Bord Uchtála [1980] IR 32 (below) Henchy J. identified the right to bodily integrity (at p. 90-91) in the essentially negative terms following:-

    As to a constitutional right to bodily integrity, such a right arises for judicial recognition or enforcement only in circumstances which require that, in order to assure the dignity and freedom of the individual within the constitutional framework, he or she should be held immune from a particular actual or threatened bodily injury or intrusion.

  166. With the exception of the provisions dealing with education, the personal rights identified in the Constitution all lie in the civil and political rather than the economic sphere. These are indeed important rights which were won for citizens in different societies over a period of centuries often in the face of bitter opposition. Whilst limited poor law relief or workhouse accommodation has existed in this and neighbouring jurisdictions for many years the demand for a coherent system of socio economic rights, and more particularly the acceptance of that demand, does not appear to have emerged until the widespread acceptance of socialist doctrines following the Second World War resulting in the now generally accepted concept of the Welfare State.

  167. The absence of any express reference to accommodation, medical treatment or social welfare of any description as a constitutional right in the Constitution as enacted is a matter of significance. The failure to correct that omission in any of the twenty-four referenda which have taken place since then would suggest a conscious decision to withhold from rights which are now widely conferred by appropriate legislation the status of constitutionality in the sense of being rights conferred or recognised by the Constitution.

  168. The reluctance to elevate social welfare legislation to a higher plane may reflect a moral or political opposition to such change or it may be a recognition of the difficulty of regulating rights of such complexity by fundamental legislation which cannot be altered readily to meet changing social needs. Alternatively it may have been anticipated that the existence of a constitutional right enforceable by the courts would involve - as the present case so clearly demonstrates - a radical departure from the principle requiring the separation of the powers of the courts from those of the legislature and the executive. The inclusion in the Constitution of Article 45 setting out directive principles of social policy for the general guidance of the Oireachtas - and then subject to the express provision that they should not be cognisable by any Court - might be regarded as an ingenious method of ensuring that social justice should be achieved while excluding the judiciary from any role in the attainment of that objective. Indeed a similar approach was adopted in the Constitution of India 1949, which having provided in Part IV thereof for certain “Directive Principles of State Policy”, went on to provide in Article 37 that:-

    The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

  169. It may be that the Constitution of India has not excluded the courts from consideration of matters of social policy as effectively as Article 45 of our Constitution but there is a distinct similarity in the approach made in both Constitutions to this difficult problem.

  170. The status of socio economic rights in our Constitution and the detailed provisions in relation to education were explained by Professor Gerard Quinn in his essay “Rethinking the Nature of Economic, Social and Cultural Rights in the Irish Legal Order” in Fundamental Social Rights (2001) (edited by Costello C) at p. 49 in the following colourful terms:-

    De Valera cleverly genuflected before socio economic rights but made sure to insert them into a part of the Constitution that is unenforceable by the courts (Article 45 on Directive Principles of Social Policy). One socio economic right escaped into the hard text: Article 42 on the right to education. Its presence in the text has more to do with history than with logic. The intention of the British in the 1830s was to set up and find a network of free primary schools on a purely non denominational basis. This was fiercely resisted by all Churches. In the compromise that ensued, the State agreed to pay for the education and the religious bodies agreed to provide it. The main intention of Article 42 seems to have been to copperfasten this historic arrangement between Church and State ....

  171. There are, as I would see it, serious arguments against inferring the existence of positive socio economic rights (apart from the anomalous rights relating to education) but there are impressive authorities to the contrary.

  172. The immediate authority for the making of the order by Kelly J. was the decision of Mr Justice Geoghegan - then a judge of the High Court - in FN v Minister for Education [1995] 1 IR 409. In the circumstances of that case Geoghegan J. held that where there was a child with very special needs in respect of accommodation, maintenance and sustenance which could not be provided by his parents or guardians there was a constitutional obligation on the State under Article 42.5 of the Constitution to cater for those needs. That judgment was in turn based upon the decision of this Court in G v An Bord Uchtála [1980] IR 32. There are far-reaching observations contained in some of the judgments delivered in that case which do support the conclusions reached by Geoghegan J. What is a matter of concern is that some of these observations do not appear to have been essential to the decision of the Court and furthermore may not have represented the views of the majority. My concern is reflected in the comments of Henchy J. (at p. 83) when he said:-

    The single issue arising from those facts is whether, in pursuance of s. 3, sub-s. 2, of the Adoption Act, 1974, the Adoption Board should be authorised to dispense with the consent of the plaintiff mother in the making of an adoption order in favour of the couple (the notice parties) to whom the child was given for adoption .... Insofar as opinions or observations on wider and unargued topics emanate from this case, I do not wish my silence on those obiter dicta to be taken as concurrence.

  173. In considering the rights of an illegitimate child where an order was sought authorising the Adoption Board to dispense with the consent to adoption of the natural mother O’Higgins C.J. went on to identify the nature of the child’s rights (at p. 55-56) in the following terms:-

    The child also has natural rights. Normally, these will be safe under the care and protection of its mother. Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42, s.5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons. In the same way, in special circumstances, the State may have an equal obligation in relation to a child born outside the family to protect that child, even against its mother, if her natural rights are used in such a way as to endanger the health or life of the child or to deprive him of his rights. In my view this obligation stems from the provisions of Article 40, s.3 of the Constitution.

  174. In G v An Bord Uchtála, Walsh J. reaffirmed a distinction which he had drawn (in McGee v The Attorney General [1974] IR 284) between constitutional rights on the one hand and natural or human rights on the other and then went on to say (at p. 69):-

    Not only has the child born out of lawful wedlock the natural right to have his welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion and to follow his or her conscience. The right of life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.

  175. It does not appear that Kenny J. accepted this fundamental distinction. At page 97 of the report - having quoted a passage from The State (Nicolaou) v An Bord Uchtála [1966] IR 567 dealing with Article 40 of the Constitution he went on to say:-

    It seems to me that in that passage there is an equation of “natural rights” and “constitutional rights”. I do not accept that there is such a connection, particularly as the word “natural” is so ambiguous. When used in connection with the relationship of a mother and child, it may mean the link between them formed by the facts that she has conceived the child, that it issues from her body and is fostered and nurtured by her; or it may mean that the theory of natural law, on which so much of that part of the Constitution dealing with fundamental rights is based, recognises such a right.

  176. The fact that O’Higgins C.J. and Parke J. dissented from the judgments of the majority emphasises the complexity of the issues under consideration and the measure of diversity which exists in the five wide-ranging judgments delivered in that important case.

  177. Whatever ambiguities may arise from an analysis of the judgments in G. v An Bord Uchtála no such problems arise in relation to the decision of this Court delivered by Finlay C.J. in the Adoption (No. 2) Bill 1987 [1989] IR 656. The then Chief Justice made it clear that Article 42 s. 5 of the Constitution should be given a wide construction when he said (at p. 663):-

    Article 42, s. 5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.

  178. What remains to be examined, however, is the extent of those parental duties and whether they derive solely from the relationship between parent and child or whether the rights as against the parent - and in default against the State - may vary with the age of the child.

  179. The extent to which positive socio economic rights can and should be separated from the complex constitutional rights and duties in respect of education and upheld or rejected independently of that particular right has never been explored adequately by this Court. No doubt lawyers have been reluctant to assert and rely upon an undefined unenumerated welfare-type right when there is room to argue that rights of accommodation, medicine and nurture are available under the heading of "Education" to children as against their parents and, where the parents default for moral or physical reasons, against the State. I suspect that this attractive argument is based on a very broad interpretation of the distinction made by Ó Dálaigh C.J. between medication and education in Attorney General v Ryan [1965] IR 294 when he said at p. 350:-

    (Counsel for the Plaintiff) contends that the provision of suitable food and drink for children is physical education. In the Court's view, this is nurture, not education. Education essentially is the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral. To teach a child to minimise the dangers of dental caries by adequate brushing of his teeth is physical education for it induces him to use his own resources. To give him water of a nature calculated to minimise the danger of dental caries is in no way to educate him, physically or otherwise, for it does not develop his resources.

  180. That homely example was sufficient to dispose of the argument in that case which had been based upon Article 42 of the Constitution. The addition of fluoride to a water supply did not offend that Article. On the other hand, I am sure that the learned Chief Justice would be appalled if it were to be suggested that his helpful example had identified for all times and all purposes the nature and extent of education particularly in the different contexts in which it is mentioned in Article 42 as aforesaid. If education could be defined so widely as to include every facility or device the availability of which would assist an individual to develop his personal resources, then every programme of medical rehabilitation and every custodial sentence, having as some part of its purpose the reform of the prisoner, could be viewed from the standpoint of a constitutional right to education of a child as against its parents in default of which a corresponding duty would fall upon the State.

  181. Apart from the reluctance of litigants to forsake their express rights under Article 42, practical difficulties may be observed in the reluctance of the Executive to contest - or even in the judiciary to permit the Executive to contest - the existence of a particular socio economic benefit as a constitutional right when it is conceded as is so often the case, that those benefits are available in accordance with legislative provisions or Ministerial schemes. In O'Donoghue v The Minister for Health [1996] 2 IR 20 the High Court had concluded that although the applicant was profoundly mentally handicapped the State was obliged to provide him with education which could properly be described as "primary". The appeal by the respondents was compromised on the basis of an order which is quoted at the conclusion of the report (at p. 72) and on terms which recognise the existence of different views as the fundamental rights of the parties:-

    Whereupon and upon opening and debate of the matter, this Court being informed by counsel for the applicant and by counsel for the respondents that the State is now providing for the infant applicant education appropriate to his current condition, this Court substitutes for the declaration in the High Court a declaration that the infant applicant is entitled to free primary education in accordance with Article 42.4 of the Constitution and the State is under an obligation to provide for such education. And this Court notes the statement of counsel for the respondents that the said respondents are not to be taken as accepting the manner in which the learned trial judge interpreted the said obligation ....

  182. Again, in the equally tragic case of Sinnott v The Minister for Education (Unreported, Supreme Court, 12th July, 2001) the respondent contested only to a very limited extent the findings of the learned High Court judge as to the rights of the applicant.

  183. It is, of course, entirely understandable, and desirable politically and morally, that a society should, through its laws, devise appropriate schemes and by means of taxation raise the necessary finance to fund such schemes as will enable the sick, the poor and the underprivileged in our society to make the best use of the limited resources nature may have bestowed on them. It is my belief that this entirely desirable goal must be achieved and can only be achieved by legislation and not by any unrealistic extension of the provisions originally incorporated in Bunreacht na hÉireann. I believe that Costello J. was entirely correct when in O'Reilly v Limerick Corporation [1989] ILRM 181 he concluded that the courts were singularly unsuited to the task of assessing the validity of competing claims on national resources and that this was essentially the role of the Oireachtas. It is only fair to add, as I have already pointed out, that those who framed the Constitution seem to have anticipated this problem and provided a solution for it.

    Justice Murray

    The Appeal

  184. “The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequences would be the substitution of their pleasure for that of the legislative body." (The Federalist. No. 78; Hamilton). These words of one of the framers of the American constitution focus on one of the limits placed on the role of the judiciary in a constitutional framework which recognises a separation of powers between the different organs of government, executive, legislative and judicial. The concept of the separation of such powers, albeit in a variety of forms, has been a constant in the evolution of the modern democratic state. One of the principal grounds relied upon by the Appellants in this case is that the Order made by the learned High Court Judge in this case in favour of the Respondents exceeded, in its form and content, the bounds of the jurisdiction of the Courts under the Constitution.

  185. In these proceedings the State has not contested the constitutional obligations which it is bound to fulfil with regard to children of minor age in need of special care and facilities according to the judgment of F.N. v The Minister for Education (see below). On the contrary it has adopted a national policy and programme specifically designed to meet those obligations and the implementation of which, as it happens, the learned High Court Court Judge in this case found would fulfil them. The issue is not the obligation but whether the Courts may incorporate a policy or programme of this nature in a mandatory Order.

  186. At this point I would recall that in Sinnott v The Minister for Education , (Supreme Court, Unreported, 12 July, 2001) albeit in a slightly different context, I had occasion to observe concerning the appeal in that case that

    This issue is one of fundamental importance to the parties and has important constitutional ramifications for the organs of State, including the extent to which the powers of the Oireachtas should be limited in the choices it makes in the spending of the public purse in the interests of the community as a whole. In these circumstances it is clearly a constitutional issue which merits, if not requires, in the public interest a final determination and clarification on appeal to this Court as the Court of Final Instance.

  187. The right of appeal to this Court is a constitutional process consecrated in Article 34.4.3 of the Constitution. No citizen, public or State party should feel inhibited or obstructed from participating in that constitutional process where such a party considers it proper to do so. Where proceedings involve issues with important constitutional implications for the organs of State and the exercise of their prerogative powers, there may be constitutional considerations wider than the issues in the particular case in respect of which those exercising prerogative powers may properly feel bound in the public interest must be submitted for final constitutional determination by this Court. I re-emphasise what I said in the Sinnott Case because of public reports of observations suggesting that resort to this Court might in some sense be considered an improper use of constitutional access to it.

  188. The other principal ground upon which the Appellants appeal concerns the locus standi of the Respondents. In this judgment I propose to address mainly the question of whether the learned High Court Judge was entitled to make the Order which he did.

    The High Court Order

  189. The Order made by the learned High Court Judge, made on the 25th February, 2000, in its operative part provides:

    .... that the first and fifth named respondents in the first entitled proceedings do, (in relation to all the aforesaid entitled proceedings) take all steps necessary to facilitate the building and opening of secure and high support units and places as follows: -

    1.

    (a)

    Two six bedded high support units with ancillary educational facilities at Castleblaney in the County of Monaghan on or before the 31st December 2001.

    (b)

    A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2000.

    (c)

    A five bed high support Unit at Elm House in the County of Limerick on or before the 31st October 2000.

    (d)

    A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001.

    (e)

    A five bed high support unity in the County of Clare on or before the 31st July 2001.

    (f)

    A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001.

    (g)

    An additional high support places in the Waterford region on or before the 31st May 2000.

    (h)

    An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May 2000.

    (i)

    An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2000.

    (j)

    A five bed high support Unit for boys in the Southern Health Board region on or before the 31st August 2001.

  190. The import of the injunction was explained in the learned High Court Judge’s own judgment in the following terms:-

    The effect of this injunction is that the proposed developments must now be completed within the time scales specified in evidence in the latest hearing before me. If there is to be any change in this, it will have to be the subject of an application to the Court on the part of the Minister for a variation of the injunction. There will have to be objectively justifiable reasons present to warrant such a variation being granted.

  191. It was not really an issue in the appeal that the form and extent of the mandatory Order against two Ministers of Government is unique, apart from an order of a similar nature made by the learned High Court Judge in an earlier case which was not appealed to this Court.

    The Judgment of the High Court

  192. In the High Court proceedings the Plaintiff’s case was based on the claim that they were minors with very special needs which could not be provided by their parents or guardians and that there was a constitutional obligation on the State to provide special facilities, by way of secure and high support units and places, providing special care for minors with their special needs. The facts and circumstances of the case including the arguments of the parties and the history of these proceedings have been comprehensively set out in the judgments of the Chief Justice and Hardiman, J. which I gratefully adopt so that I need only refer to them where the particular context requires.

  193. The point of departure for the learned trial judge was the judgment of Geoghegan, J. in F.N. v The Minister for Education [1995] IR 409. Geoghegan, J. summarised his decision as follows: -

    In summary I take the view that the State is under a constitutional obligation towards the Applicant to establish as soon as reasonably practicable, either by use of s.58, sub-s.4 of the Act of 1908 or otherwise, suitable arrangements of containment with treatment for the Applicant.

    That decision was not appealed by the State. Nor has any issue been argued in these proceedings calling in question the decision of Geoghegan, J. Murphy J. in his judgment has addressed substantive issues arising from the decision in that case. I reserve my position with regard to them until they should arise directly in other proceedings. The Order made by Geoghegan, J. was declaratory and did not involve any mandatory element.

  194. As the learned High Court Judge pointed out, F.N.’s case was not an isolated one. Subsequently there was a succession of cases

    dealing with children whose circumstances required that the State should provide suitable arrangements of containment with treatment.

  195. In those cases he notes that the Court made no formal declaration of the type made in F.N.’s case “because in such cases the State recognised that these children were entitled to rights of a type similar to those declared in favour of F.N.”. There was then no reason to believe that the proposals which had been advanced by the Minister for Health for the provision of residential places would not be implemented in a timious fashion.

  196. Most, if not all, of those cases had come before the learned High Court Judge. More cases of a similar nature were to follow including those in which T.D. and D.B. were Plaintiffs. In the course of those proceedings details of certain plans which had been adopted by the Minister with a view to addressing the national needs of children requiring special care were placed before the Court. In one case the Minister proposals were implemented in full and in accordance with the forecast time scale. As regards other proposals, the learned trial Judge concluded that

    Whilst I do not deny for a moment that substantial progress has been made, the plain fact is that none of the time scales which were given in evidence before this Court as recently as April, 1999 even December, 1999 will now be met.

  197. I think it is important to come to the genesis of these proceedings which is explained in the judgment of the High Court in the following terms:

    Following the hearing in December, 1999 I indicated that such were the culpable delays which had taken place that I was of the opinion that prima facie there was an entitlement to injunctive relief so as to compel the Minister to proceed to provide the places in respect of which I had been given evidence. At that stage there was mooted for the first time a suggestion on the part of the Minister that the then Applicant before the Court, namely T.D., would not be entitled to such an Order because he was not then in need of such a place. His case had to be adjourned generally because no place could be provided for him. In the light of this I suggested that the application for injunctive relief if it was sought to be pursued should be brought not merely in the name of T.D. but of all other Applicants who are in need of such facilities. Thus the present application is brought in the name of many of the Applicants who have figured before the Court on a regular basis.

  198. Following the learned trial judge’s initiative, this application was brought and it sought, as the learned trial judge put it, “.... a series of injunctions directing the Minister to take all steps necessary and to do all things necessary to facilitate the building and opening of secure and high support units in places as follows ....” and there followed a list of building facilities, each to be completed by a specified date which correspond with the facilities referred to above and paragraph 1(a) to (j) in the Order of the High Court as ultimately made.

  199. As regards the formulation of the injunctions sought in the present application, the learned High Court Judge observed

    I should make it clear that the number of units, their location and dates which are set forth in each of these proposed injunctive reliefs are those specified by the officials who gave evidence before me on behalf of the Minister. In other words the injunction seeks to do no more than to compel the Minister to adhere to the latest plans which he had been put before this Court within the time specified.

  200. What was before the learned High Court Judge prior to the initiation of the application in these proceedings was a programme devised by policy makers under the aegis of the Minister and adopted by him as a matter of policy with a view to addressing the constitutional obligation owed by the State to minors in need of special care facilities as declared in FN v The Minister for Education .

  201. I consider it important to note that the trial judge appears to have been satisfied at that point, confirmed by the Order which he has made in this case, that the proposed programme was indeed sufficient to address those obligations.

  202. The reason given by the learned High Court Judge for proceeding to consider and ultimately grant the mandatory Order arose from the fact that although he was assured of the good intentions and commitment of the relevant departments to provide the places in question within specified times these had to be extended for reasons of “culpable slippage”. In the absence of a formal undertaking from the Minister to the Court as to future compliance he reached certain conclusions arising from previous delay. These were that the department of Health and Children had not proceeded in a manner which, “could reasonably be expected of it so as to address the quite scandalous situation which has now obtained for years”. He expressed the conclusion that time had been lost “as a result of manifest inefficiency”. He cited the Castleblaney premises as the worst example. He concluded that reasonable progress has not been made. On the other hand he of course did acknowledge that substantial progress had been made. He also stated

    I wish to make it clear that I accept the bone fides of all the agencies and personnel who are attempting to deal with these problems. For the presence of bone fide good intentions counts for little if result are not being achieved which go to address the rights of these young people in a timious fashion.
  203. The fundamental issue which preoccupied the mind of the learned trial Judge was not the nature and extent of the programme which the Minister had adopted nor indeed the planned time scale for the establishment of the various centres but rather the risk of delay in its implementation referred to in his ‘Conclusions on Delay’. No issue as to the good faith of the Minister was involved. He also accepted that the time scales envisaged in the Minister’s programme might not be capable of being met for good reason, hence his express willingness to alter the terms of the Order from time to time on an application from the Minister.

  204. On the question of policy and the separation of powers the learned High Court Judge concluded that “the Order that I propose making will ensure that the Minister who has already decided on policy, lives up to his word and carries it into effect. I am neither dictating nor entering into questions of policy.” He also concluded that in any case there is jurisdiction vested in the Court to intervene in what has been called policy in an appropriate case.

    Such an intervention would only occur in limited circumstances and where absolutely necessary in order for this Court to carry out its duties under the Constitution in securing, vindicating and enforcing constitutional rights.

    If the Court were to conclude that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the States response was proportionate to the rights which fell to be protected, then normally no Order of this type should be made.

  205. However there were four factors which the learned High Court Judge stated he should take into account before deciding on whether or not to grant the mandatory injunctions.

    First, the High Court has already granted declaratory relief concerning the obligations of the State towards minors of the type involved here. Secondly, if that declaration is to be of any benefit to the minors in whose favour it was made, the necessary steps consequent upon it must be taken expeditiously. Otherwise the minors will achieve majority without any benefit being gained by them. Thirdly, the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of children and put them at risk of harm. It continues to do so. Fourthly, due regard must be had to the efforts made on the part of the State to address the difficulties to state.

  206. In deciding that the Court had jurisdiction to make the Orders sought to vindicate the rights identified by Geoghegan, J. in F.N. v The Minister for Education the learned High Court Judge cited the following authorities:-

    Hamilton C.J., in D.G. v The Eastern Health Board [1997] 3 IR 511 at 522 said:-

    If the Courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the Courts had the jurisdiction to do all things necessary to vindicate such rights. As stated by O’Dalaigh C.J. in the course of his judgment in the State (Quinn vRyan [1965] IR at page 122 of the report:-

    It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodian of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts powers in this regard are as ample as the defence of the Constitution requires.
  207. The learned High Court judge then went on to cite what he had stated in his judgement D.B. v The Minister for Justice [1999] 1 IR 29 at page 40:-

    These quotations seem to me to establish the proposition that in carrying out its constitutional functions of defending and vendicating personal rights, the Courts must have available to it any power necessary to do so in an effective way. If that were not the case the Court could not carry out the obligations imposed upon it to vindicate and defend such rights. This power exists regardless of the status of a Respondent. The fact that in the present case the principle respondent is the Minister for Health is no reason for believing that he is in some way immune from Orders of the Court in excess of mere declarations If such Orders are required to vindicate the personal rights of a citizen.

    He then went on to quote what Finlay C.J. had said in Crotty v An Taoiseach [1987] IR 713 at 773

    With regard to the executive, the position would appear to be as follows:-

    This court has on appeal from the High Court a right and duty to interfere with activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of such rights.

    The right of intervention is expressly vested in the High Court and the Supreme Court by the provisions of Article 34, s.3, sub-s.1 and 34, s.4,sub-s.3 of the Constitution and impliedly arises from the form of judicial oath contained in Article 34, s.3, sub-s.1 of the Constitution.

    Decision

    Separation of Powers in general

  208. The concept of the “separation of powers” as applied to the exercise of executive legislative and judicial powers of government has been extant for some centuries, emerging in the Age of Enlightenment in Europe and embraced by the framers of the American constitution who regarded Montesquieu as “the oracle who is always consulted and cited on this subject ....” (The Federalist No. 47, Madison). It was not always a concept associated with representative democracies as we now know them. It was Montesquieu’s fear that

    When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise less the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.

    He expressed the concern:

    Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the Judge would then be the legislator. Were it joined to the executive power, the Judge might behave with all the violence of an oppressor ....

     (De l’Esprit des lois.)

  209. Whether the concept be considered as a distribution of the powers mentioned among different branches of government, executive legislative judicial, or a balancing of powers among those branches or a form of “checks and balances”, the separation of powers, in one form or another, is today regarded as an essential and inherent part of the modern liberal democracy founded on the rule of law. Although the basic objective is the same, to avoid an excessive concentration of these powers, or a combination of them, in one authority, there is no pure or ‘perfect’ model of the separation of powers. It is found in different forms in different countries according to the differing structures of constitutional government such as in France, the United Kingdom, Germany, the United States and this country. Particular emphasis is placed on the democratic accountability of the executive and the legislature where the former may be accountable to the latter and both in any event are accountable to the electorate for the use of their powers. The Judicial branch of government is, perforce, not so accountable but is often described as the “least dangerous branch” having power over neither “purse nor sword”.

    The Separation of Powers under the Constitution

  210. The separation of powers in this country is embodied and governed by the Constitution. Accordingly, it is within its rubric that the question concerning the separation of powers as raised by the Appellants falls to be considered.

  211. Article 6 of the Constitution provides as follows:-

    1.

    All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State, and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

    2.

    These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

  212. As this Court has on many occasions had occasion to state, those organs of State are the Government, the Oireachtas and the Courts established by the Constitution. Article 28.2 provides that the executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government which, pursuant to Article 28.4.1 is answerable to the Dail. The Oireachtas, as the national parliament, consists of the President and the two house, Dáil Eireann and the Senate (Article 15). Article 15.2.1. provides that

    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.

  213. In Buckley (Sinn Féin) v Attorney General [1950] IR 67 at 81 the former Supreme Court held

    Article 6 provides that all powers of government, legislative, executive and judicial, derive, under God, from the people, and it further provides that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers. Articles 15 to 27, inclusive, deal with the exercise through the Oireachtas, of the legislative powers of the State, and Arts.34 to 37, inclusive, provide for the establishment of Courts and the appointment of Judges to exercise the judicial powers of the State. At the commencement of the latter set of Articles it is provided, by Art. 34, that justice shall be administered in Courts established by Judges appointed in the manner provided by the Constitution. This seems to us to contemplate and require that justice shall be administered in such manner and not otherwise.

    [emphasis added]

  214. As I have already indicated one of the fundamental objects of the concept of the separation of powers is that no one of the three organs of government is paramount in the exercise of State power. As Walsh, J. stated in Murphy v Corporation of Dublin [1972] IR 215, 234

    The division of powers does not give paramountcy in all circumstances to any one of the organs exercising the powers of the government over the other.

  215. It follows that in order to avoid the paramountcy of one organ of State, each must respect the powers and functions of the other organs of State as conferred by the Constitution. Each must exercise its powers within the competence which it is given by that Constitution. The Oireachtas cannot exercise a judicial function attributed to the Courts no more than the Courts may exercise a function attributed to the Executive or the Oireachtas.

  216. There is a fundamental distinction between the Courts determining whether policies or measures of the Executive or the Oireachtas are compatible with their obligations under the law or the Constitution and the Courts taking command of such matters so as to in substance actually exercise a core constitutional function of one of those organs of State.

    The Role of the Courts

  217. Thus it is not in issue that the Superior Courts, in determining cases brought before them, may make Orders affecting, restricting or setting aside actions of the Executive which are not in accordance with law or the Constitution or make declaratory orders as to its obligations. The learned High Court Judge correctly cited the law in this regard as stated by Finlay, C.J. in Crotty v An Taoiseach

    with regard to the executive, the position would appear to be as follows:-

    This Court has on appeal from the High Court a right and duty to interfere with the activities of the Executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or the activities of the executive threaten an invasion of such rights.

  218. Equally these Courts may set aside an Act of the Oireachtas on the grounds that it is repugnant to the Constitution.

  219. In Landers v Attorney General I.L.T.R. [1976] 1 Finlay, J. (as he then was) in referring to the constitutional discretion left to the State to balance the priority to be accorded to one right as against another in the interests of the common good stated

    The Court must as I construe its obligations under the Constitution be as scrupulous in avoiding such a choosing as it must be energetic in preserving a clear and threatened constitutional right. In the same way I do not consider that it is any part of the function of the Court to adjudicate as to what is the best method by which the State can carry out one of its constitutional duties.

    [emphasis added]

    The Courts have jurisdiction to intervene to prevent an invasion of rights or determine constitutional obligations. The views expressed by Finlay, J. and reflected in other judicial pronouncements which I cite, mean, as I understand them, that it is the Executive not the Courts to decide and implement the policies calculated to carry out its constitutional obligations. Moreover, Finlay J clearly saw no difficulty in the amplitude of the powers of the Court to protect rights while at the same time refraining from trespassing on the exercise of their functions by the organs of State.

  220. Such jurisdiction can only be exercised in deciding on justiciable matters in issue between parties litigating those issues before the Court (other than an Article 26 reference). The Courts have no general supervisory or investigatory functions. De Tocqueville summed up the role of the Courts pithily when he wrote,

    In all nations the judge’s primary function is to act as an arbitrator. Rights must be contested to warrant the intervention of the Court. An action must be brought before a Judge can decide it.

    The “.... judicial power .... can act only when called upon, or in legal language, when it is seised of the matter”. (Democracy in America, Harper, Eng. ed.).

  221. If a judge cannot choose the cases which he might wish to come before him neither does he have the luxury of deciding cases as he might wish but must do so as the law or the Constitution dictates. In principle, the judge decides what the rights of the parties are and their legal or constitutional obligations in respect of them. It is the Legislature or the Executive who may adopt measures or policies simply on the basis they consider them the best and most desireable means of achieving specified objectives or fulfilling obligations. In O’Reilly v Limerick Corporation [1989] ILRM 181 at 195, Costello J., addressing a question of supervision by the Courts of the spending of public monies for policy objectives in the furtherance of the common good, stated

    The Court’s constitutional function is to administer justice but I do not think by exercising the suggested supervisory role it could be said that a Court was administering justice as contemplated by the Constitution .... In exercising this function the Court would not be administering justice as it does when determining an issue in relation to commutative justice but it would be engaged in an entirely different exercise, namely an adjudication of the fairness or otherwise of the manner in which other organs of state had administered public resources.

    Costello, J. went on to add

    .. the manner in which justice is administered in the Courts on a case by case basis, makes them a wholly inappropriate institution for the fulfilment of the suggested role.

    In my view the Courts are equally inappropriate institutions to make an Order directing how national policy should be implemented rather than addressing issues on a case by case basis.

  222. Adopting a policy or a programme and deciding to implement it is a core function of the executive. It is not for the courts to decide policy or to implement it. It may determine whether such policy or actions to implement such policy are compatible with the law or the Constitution or fulfil obligations. That is not deciding policy.

    Judicial Review in a democracy

  223. Thus the powers of the Court include judicial review of acts of the Executive and the Legislature. It is a feature common to many democracies, particularly with a written constitution. Judicial review permits the Court to set aside executive actions or legislative measures which offend against the law or the Constitution. Judicial ‘review’ does not in such democracies give the Courts jurisdiction to exercise rather than review executive or legislative functions. Judicial review permits the Courts to place limits on the exercise of Executive or legislative power not to exercise it themselves. It deals with the limits of policy, not its substance. That is why judicial review by the Courts, which are not answerable to any constituency other than the law and the Constitution, is democratic. Of course one may hypothesis as to all kinds of circumstances, exceptional or otherwise, in which judicial review of the Executive or the Oireachtas may arise. But, to paraphrase Edmund Burke, circumstances are infinite, or infinitely combined, are variable and transient, and one cannot loose sight of the fundamental principles according to which the power of judicial review is exercised.

  224. As Budd, J. observed in Boland v An Taoiseach [1974] IR 338 at 366

    It is for the Executive to formulate matters of policy. The judiciary has its own particular ambit of functions under the Constitution. Mainly, it deals with justiciable controversies between citizen and citizen, or the citizen and the State, and matters pertaining thereto. Such matters have nothing to do with matters of State policy.

  225. Damages, even exemplary damages, may be awarded in appropriate cases to individuals who have suffered loss or damage as a result of the unlawful or unconstitutional activities of the State or one of its agencies.

    The High Court Order - beyond the bounds

  226. Prior to the initiation of this particular case the relevant Minister had outlined to the Court his national the policy and a programme of action based on that policy. The learned High Court judge held that he was not making policy but rather simply taking the policy formulated by Executive and incorporating it in his Order. In my view the learned High Court Judge was incorrect in this analysis.

  227. The policy which had been outlined by the Minister involves the construction or provision of certain support or care units in different parts of the country and recruiting staff for their opening and the provision of care facilities. It is a programme which involves, generally speaking, the design of premises, engagement of contractors, applications for planning permission, identification of the number and kind of specialised staff and their recruitment just to mention some of its elements. A policy programme of such a nature, whether it is undertaken by the private sector or the State sector, will inevitably involve discretionary decisions on a day-to-day basis with a view to satisfactory implementation to meet, as far as practicable, the objectives set. These discretionary decisions will be taken according as unforeseen obstacles are encountered, administrative difficulties arise, reservations of the planning authorities are considered, planning objections or appeals from third parties are met or indeed as the adaptation of policy is required to make it more efficient or effective according to further insights as the strategy develops in the course of its implementation. Such Executive policy may be determined or altered by Dáil Eireann

  228. The learned High Court Judge expressly acknowledged that delays in the programme may be justifiably required subject to his approval. Although the learned High Court Judge did not expressly say so it may be inferred that if the Minister were to apply to him also to permit a change of policy in the future he would so if there were “objectively justifiable” reasons for doing so. In his judgment in D.B. the learned High Court Judge had expressly provided for future applications for a change of policy on such grounds and presumably he did not intend to exclude such a future application in this case. I would add in passing that since the very nature of policy is that it is frequently formed on the basis of subjective reasons it is not at all clear what kind of objective criteria the High Court would apply when supervising what changes, if any, should be permitted in the policy enshrined in its Order.

  229. It seems to me that in incorporating the policy programme as part of a High Court Order the policy is taken out of the hands of the Executive which is left with no discretionary powers of its own. It becomes the policy and programme of the Court which cannot be varied or any decision taken which might involve delay (or an adjustment of policy) without the permission and Order of the Court. A judicial imperative is substituted for executive policy. The Judge becomes the final decision maker. In short he is administrator of that discrete policy. That is not a judicial function within the ambit of the Constitution.

  230. Another inevitable consequence of the High Court Order would be to undermine the answerability of the Executive to Dáil Eireann and thus impinge on core constitutional functions of both those organs of State. Article 28.4.1. provides

    The Government shall be responsible to Dáil Eireann.
  231. As Budd, J. also said in Boland v An Taoiseach (cited above)

    The Court could clearly not state that any particular policy ought not to be pursued.

    The Constitution goes further in indicating how far the polices involved in Government decisions as to policy such as this are removed from the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them.

  232. A Minister who, in the course of such a review, subsequent to the making of the kind of Order as has been made in this case, was called upon to answer in Dáil Eireann on the grounds that the scope of his policy should be reduced or expanded would be bound to respond that his hands were tied by an Order of the High Court and that he was bound to pursue that policy by Order of the High Court. This would be a negation of his answerability to Dáil Eireann. At best it might be said that an application by the Minister to the High Court to alter the policy or its time scale on the basis of a decision of Dáil Eireann might constitute “objectively justifiable” grounds for amending the High Court Order. But this would reduce a Minister, a member of the Executive, to an intermediary between the Dáil Eireann and the High Court and even then the decision of the Dáil Eireann would be subject to approval by the High Court.

  233. This would introduce a degree of judicial hegemony in the domaine of policy formulation and implementation so as to disturb the balance of powers between the three great organs of State, the Executive, the Oireachtas and the Judiciary.

  234. It would involve the High Court in exercising its “will” rather than its “judgment”on justiciable issues between the parties. (In this regard see also the conclusion of Hardiman, J. on the locus standi of the parties in this application to seek the Order granted).

  235. It would offend against the underlying concept in the statement of Walsh, J. in Murphy v The Corporation of Dublin (cited above) that “the division of powers do not give paramountcy in all circumstances to any one of the organs” of State. The proposition of the learned High Court Judge that “the Court has to attempt to fill the vacuum which exists by reason of the failure of the legislature and executive” would, it seems to me, arrogate to the Courts a paramountcy in circumstances not envisaged in the separation of powers under the Constitution and undermine core functions of the executive and the legislature in a representative democracy where their primary answerability for policy matters is to the people. In my view the Order goes beyond the boundaries envisaged in the dictum of this Court in Buckley (Sinn Féin) v Attorney General (cited above) that justice shall be administered in the manner provided by the Constitution and “in such a manner and not otherwise”, and outside the “particular ambit of functions under the Constitution” accorded to the judiciary as mentioned by Budd, J. in the citation above.

  236. The jurisdiction of the Courts as envisaged by the Constitution is sufficiently ample to defend and vindicate rights guaranteed by the Constitution as the experience of many decades has demonstrated. Judicial statements as to the amplitude of the powers of the Court in this regard in such cases as Quinn v Ryan and D.G v The Eastern Health Board can only be interpreted and applied within the ambit of the role conferred by the Constitution on the Courts with due respect to the role and function of the executive and the legislature. Any other approach would introduce incoherence into the concept of the separation of powers as delineated by the Constitution. In my view the grounds relied upon by the learned High Court Judge did not entitle him to make the mandatory Order.

    Other Forms of Mandatory Order

  237. In coming to the conclusions above I do not wish to determine that the Courts may never make a mandatory Order in any form as opposed to a declaratory or other Order, against an organ of State.

  238. In so far as McKenna v An Taoiseach (No. 2) [1995] 2 IR 1, Crotty v An Taoiseach and District Judge McMenamin v Ireland [1996] 3 IR 100 might be said to be authority for the making of some form of mandatory Order where there is “a clear disregard” by the State of its constitutional obligations, it must be borne in mind that in none of those cases was a mandatory Order granted. I have already made the distinction between “interfering” in the actions of other organs of State in order to ensure compliance with the Constitution and taking over their core functions so that they are exercised by the Courts. For example a mandatory Order directing the Executive fulfil a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory Order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its constitutional obligations in an exemplary fashion. In my view the phrase “clear disregard” can only be understood to mean a conscious and deliberate decision by the organ of State to act in breach of its constitutional obligation to other parties accompanied by bad faith or recklessness. A Court would also have to be satisfied that the absence of good faith or the reckless disregard of rights would impinge on the observance by the State party concerned of any declaratory Order made by the Court.

  239. I would recall in passing that in this case there is no question of bad faith on the part of the Minister and indeed the learned High Court Judge expressly found that all those agencies which acted on behalf of the Minister were acting in good faith. I do not consider that “culpable slippage” of an administrative nature or “bureaucratic haggling”, which may include serious legal questions of departmental competencies, or inefficiency may of themselves alone constitute grounds for a judicial mandatory Order against the State. There may be other remedies if persons suffer damage as a result of such administrative deficiencies, but otherwise the Executive is, in principle, accountable to Dáil Eireann for them. I do not consider that the elements necessary for any form of mandatory Order are present in this case.

  240. I do not consider it necessary to develop this matter further except to emphasise that should the occasion arise for the Courts to consider making a mandatory against an organ of State in lieu of a declaratory Order, such an Order could not be such as would involve the Courts in actually exercising the functions constitutionally reserved to those organs of States.

    Locus Standi

  241. Much of what I have said in dealing with the principal issue concerning the separation of powers has implications for the locus standi of the Plaintiffs in this case and in particular whether they have sufficient interest and standing to seek declarations as to national policy rather than such Orders and Relief as they may be entitled to having regard to their individual situations. However, I have had advantage of reading the judgement of Hardiman, J. and I agree with his reason for considering that the Applicants individually or as a group have not shown sufficient interest to give them local standi in these proceedings to seek the mandatory Order in question.

  242. Having regard to the foregoing I would allow the appeal and set aside the mandatory Order of the High Court.

    Hardiman J

  243. Suppose a judge is dissatisfied with a policy of the legislature or government for the discharge of their constitutional obligations, or with its implementation. Is it open to him or her to determine or approve a particular policy, make detailed orders for its execution with public money, and prohibit any change of policy without permission of the Court? Or is that a constitutionally impermissible invasion of the functions of the Government and of its responsibility to Dáil Éireann?

  244. These are the central questions at the heart of the present appeal. Before proceeding to examine the case in detail I wish briefly and in plain language to put these questions into context, so that their significance can be appreciated.

  245. Under our Constitution all political power in the State derives from the people. By Article 6 this general power is divided into the three major powers of government, the legislative, the executive and the judicial. These powers are separate and distinct in order to prevent any one power, or the individuals who hold it, from becoming dominant. The legislative power makes laws and elects the executive Government which is responsible to it. These branches of government are responsible for the formulation and implementation of policy on a vast range of issues of importance to the community as a whole. They are jointly responsible for the expenditure of public monies. Each of these two powers are directly or indirectly elected and are liable to recall and replacement by the democratic process. Their independence of the judiciary is essential if the great democratic value of popular sovereignty is to be maintained.

  246. The role of the judiciary is to administer justice and to uphold the Constitution and the laws. The judiciary are not, and cannot be, directly politically responsible for their decisions, or liable to recall if their decisions are unpopular. An unpopular or powerless individual or a minority are as much entitled to justice as anyone else. The judiciary’s independence of the political branches of government is essential if impartial justice is to be done between citizen and citizen and between the citizen and the State, and if laws are to be kept within constitutional bounds.

  247. In recent times the courts have been asked more than once to make orders more obviously within the ambit of the legislature or executive Government. On each such occasion they have anxiously explored the question of whether it is possible or proper to do so, having regard to their duty to uphold the Constitution and the separation of powers which it requires.

  248. Those who are greatly and often properly exercised by the underlying issues which lead people to seek orders of this kind can be impatient with this process of exploration and its necessary technicality. But the importance of a separation of powers can be explained without any technicality at all.

  249. If a judge considers that there has been a “failure of the legislature and the executive” (to use a phrase of the learned trial judge in this case) in some particular area of constitutionally significant policy, can he or she on that account “attempt to fill the vacuum” by ordering either of those bodies to implement a particular policy? If this is possible, it may gratify those who agree with the judge that there has been a failure, and who find the solution which he or she imposes acceptable. But it would represent an enormous increase in the power of an unelected judiciary at the expense of the politically accountable branches of government. It would attribute to the judiciary a paramountcy over the other branches in the form of a residual supervisory governmental power which, once asserted and exercised, would certainly be appealed to again and again. This paramountcy might develop in a context of widespread popular approval in a particular case, but it would be equally available in all such cases, regardless of public opinion. It would represent a very significant change in our constitutional order, not easily reversed.

  250. Is it constitutionally possible, or desirable, so to increase the power of the judges? This is the most fundamental of the questions raised in the present case. Earlier this year, in the context of the decision of this Court in Sinnott v The Minister for Education (Supreme Court unreported 12th July, 2001), the distinguished legal scholar Dr. Gerard Hogan considered the possibility of socio-economic rights coming to enjoy constitutional protection as a result of a possible referendum. He said:-

    But if this happens, let us also be under no illusion about one key consequence of such a change: it will mean a further significant transfer of power from the elected branches of government to an unelected judiciary which is already by the standards of most western democracies extremely powerful.
  251. If the order made in this case is one that a court can properly make it too would represent a significant transfer of power. Though the other issues in the case are of great importance, especially to the individuals involved, this question is of transcending importance because the answer to it will affect the resolution of many other issues, and indeed the balance of power within our constitutional structures themselves. Before it can be addressed, however, it is necessary to turn to the detailed facts of the present action.

  252. In this appeal, the appellants seek to set aside the order of the High Court (Kelly J.) made the 25th February, 2000 and perfected on the 10th July, 2000. This order will be discussed below.

  253. Because of the course the case has taken, and the circumstances in which eight other similar cases have come to be associated with it, it is desirable to set out in some detail the personal history of T.D., and the history of the proceedings and the background to them. The first can be done with some confidence on the basis of the evidence of Mr. Ruairi Ó Cillín, a divisional inspector in the Department of Education. Mr. Ó Cillín has been involved in this case and in a number of similar cases over a period of years and his extraordinary efforts in that connection have been acknowledged both by the applicants and by the learned trial judge himself.

    T.D.

  254. This young man is now over 18 years of age having been born on the 9th January, 1983. He has been the recipient of special services of one kind or another since 1990, when he was enrolled in a special school for pupils with emotional disturbance. Between May 1991 and September 1992 he was in an Eastern Health Board Residential Unit with education “on campus”. He then attended a further special school until June of 1995. He did not return to this establishment in September of that year, allegedly on the basis of bullying by other pupils. He was subsequently the subject of an order under Section 58(4) of the Children Act, 1908 and was placed in St. Lawrence’s in Finglas in November, 1996. In November 1997 he was offered a voluntary continuance of his placement there but it was discontinued two months later because he would not co-operate with the arrangements made for him. On the 9th January, 1998 he was interviewed by staff at City Motor Sports and offered an initial 2½ per week placement to begin on the 3rd February. On the 2nd February 1998 he was granted leave to apply for a judicial review by the High Court: this order is the basis of the present proceedings, although they have subsequently assumed a very significantly different form. The history of the proceedings will be considered below. On the 5th August, 1998 he was placed in Oberstown Boys Centre pursuant to an order of the High Court and remained there until the 17th February of the following year when he was transferred to Sarsfield House. His residency here was supported by Eastern Health Board staff and he attended St. Vincent’s Trust on a daily basis, again supported by staff from the Health Board. This “support” apparently extended to his being escorted during working hours by one or two child care workers, at least on occasion. He was however excluded from Sarsfield House by reason of his behaviour and was subsequently placed in St. Patrick’s Institution by order of the High Court where he remained for a period of six weeks. He then attended the Cavan Centre from Wednesday to Sunday of each week, and St. Vincent’s Trust on Mondays and Tuesdays. During this time he was continually supported by Eastern Health Board staff. Following his return from the Cavan Centre he continued to attend St. Vincent’s until the end of July, with activities being organised for him by Eastern Health Board staff when St. Vincent’s closed for vacation. However it became increasingly difficult to get the applicant to co-operate with this regime and on occasions he did not make himself available at all. At approximately the age of 15 the applicant had developed a drug taking habit. Matters came to a head on the 26th August, 1999 when the child care workers who attended the applicant felt it was unsafe for them to continue doing so, apparently due to a fear that he might attack them for money in connection with his drug habit. There is however no suggestion that he actually did so on any occasion. The child care workers did accompany him to Fortune House so that he could engage in a drugs detoxification programme which had been arranged.

  255. Throughout this period, and particularly in the latter years, the applicant was very frequently assessed by various professional persons and was the subject of a considerable number of reports. There were exhibited in the proceedings at different stages reports from Dr. Moran, Dr. Teenan and Dr. Byrne Consultant Psychiatrists; Mr. Hogan, Ms. O’Sullivan, Mr. O’Connor, Mr. Brian Hogan and Mr. Victor Thompson, Social Workers, Ms. McCarthy, Ms. Fry, and Ms. Mulholland, Psychologists, Mr. Howard and Mr. Bryan of the Finglas Childrens Centre as well as Mr. Dowd a key worker at that centre and others. He has had medical examinations to outrule various conditions which has apparently been done and multiple medical examinations in connection with drugs treatment programmes. From the reports of these persons and others such as the Governor of St. Patrick’s Institution, it seems perfectly clear that his case has been the subject of earnest and frequent consideration between 1992 and the present time.

  256. In the affidavit grounding the notice of motion in which the orders appealed against were granted, Mr. Pól Ó Murchú, solicitor for the applicant said that:-

    .... Despite the urgent need of (T.D.) for a place in a high support unit at no time was such a placement in such a unit been made available for him since the commencement of these proceedings. The court has been obliged to deal with the case in the context of inadequate and unsuitable accommodation which is available for young persons such as (T.D.) and the proceedings have now been adjourned generally with liberty to re-enter.

    To this Mr. Ó Cillín replied:-

    .... The State and the Eastern Health Board have made extraordinary efforts to try to provide for (T.D.). Both before and after his release from Oberstown every conceivable effort practicable was made to provide a supportive environment for him. He was permitted to reside at home and attend St. Vincent’s Trust with the support of staff assigned by the Eastern Health Board. Due to the applicant’s non-cooperation this intervention failed. He was provided with a residential facility in Cavan for a period of about two months but this also failed. He expressed an interest in taking up a place in a facility made available in Sligo where he would have become involved in work associated with stables and horses. However, due to his unwillingness to meaningfully address or reform his involvement in drugs the facility in Sligo was ultimately unwilling to provide the place in question.

    .... Due to his continued non-cooperation and unwillingness to assist, the Court adjourned his case generally with liberties to re-enter .... In the circumstances therefore it is appropriate to indicate that rather than accommodation or facilities being inadequate it is the particular applicant’s failure to co-operate or to avail of the various opportunities offered to him which has led to his case been adjourned generally.

  257. It would also appear from the reports cited that the applicant has on occasion been the subject of charges before the District Court. It is not clear in what precise way these charges were disposed of; it would appear that they were taken no further in light of the High Court proceedings.

  258. I am disturbed that duly proffered charges against the applicant seem to have disappeared without trace. The applicant is either guilty or not guilty of these charges. If he is guilty it would be open to the judge before whom he was convicted to consider a range of options, custodial and otherwise, for dealing with him within the criminal justice system. If the issue had arisen, it might have been possible for the Court to consider the report of Dr. Gerard Byrne, Consultant Psychiatrist, exhibited in the present proceedings and dated the 30th November, 1998 in which he said:-

    T.D. needs to be based in an environment with a high staff ratio where he can learn better controls in the context of forming attachments to a staff who care for him. He does not need a secure unit and, indeed, I think a secure unit is contra indicated. A secure unit is likely to place him in contact with a far more delinquent peer group. Given his difficulties with impulse control and general immaturity such a setting would cause a deterioration in his general state.

  259. If, on the other hand, he were acquitted of the criminal charges, he would be freed from the imputation involved in having criminal charges proffered against him but, in circumstances which are unclear, never pursued.

  260. It appears to me that in light of the history summarised above, the various institutions and facilities which were made available to the applicant, the significant number of medical, psychiatric, psychological and social and care work professionals who dealt with him, the summary given by Mr. Ó Cillín in his evidence seems quite accurate. In particular, his conclusion:-

    In the circumstances therefore it is appropriate to indicate that rather than accommodation or facilities being inadequate, it is the particular applicant’s failure to co-operate or to avail of the various opportunities offered to him which has led to his case being adjourned generally.

    seems fully justified.

    The Young Persons and The State

  261. It is of course manifest that, pursuant to Article 42.5 of the Constitution, the State has grave and particular obligations towards children “in exceptional cases where the parents for physical or moral reasons fail in their duty towards their children” to “by appropriate means .... endeavour to supply the place of the parents”. In the case of very young children this obligation can often in practice be discharged only by assuming full responsibility, directly or vicariously, for their shelter, feeding, health, education and general nurture. As the child gets older, however, and passes the age of reason, and the age of criminal responsibility, the State’s duties are complemented by a reciprocal duty on the part of the child or young person to engage and co-operate with the facilities and services made available to him. It is neither realistic nor legally necessary to treat a young person up to his eighteenth birthday as an entirely passive recipient of services whether provided by his parents or by the State, without responsibility of any description for his own behaviour and formation. Indeed, to regard a young person in that way would be quite inconsistent with the policy of the criminal law whereby criminal responsibility may be attached to him prior to his achieving his majority. Recent cases in the Central Criminal Court have evidenced the attachment of criminal responsibility in respect of serious crimes, mainly rape, below this age, and it is clearly necessary that that should be the case. It would also be inconsistent with the ordinary practices of our society in relation to the rearing and nurture of children and young persons. Our education system places very considerable, and some would say would say excessive, pressures and responsibilities on young persons approaching the age of majority, and their performance at this level can significantly affect their future prospects.

  262. Accordingly, while it must be noted that T.D. is a young person with particular needs and difficulties it must also be recorded that these have been acknowledged and sought to be dealt with by State Agencies and professional people connected with them over a long number of years, and that, at times at least, he has manifested “continued noncooperation and unwillingness to assist” in relation to the efforts of these persons and institutions. The evidence summarised above demonstrates, in my opinion, that it would be quite wrong to regard the public services and persons connected with them as having in some general sense failed this young man: on the contrary, they have made conspicuous efforts to address his problems. But no matter what facilities are provided, and regardless of whether they are provided by public bodies or on the private initiative of parents, they will have no beneficial effect on a particular child or young person without his own cooperation. The fact that such cooperation is not forthcoming is not in itself evidence that the services provided are inadequate.

  263. Where a young person becomes uncooperative and unwilling to assist in his own education, difficult to accommodate in schools or institutions because he is felt to be a threat to other students and staff, and prone to taking drugs, a very difficult situation arises. This situation is acute whether the young person is being cared for by the State or by his parents. Considering a similar case, F.N. v The Minister for Education [1995] 1 IR 409, Geoghegan J. was satisfied on the evidence that “.... For the care of the child to be effective there would have to be an element of containment or detention”. There, too, the young person had been the subject of an order under Section 58(4) of the Children Act, 1908 as a result of which he had been sent to a certified school. However, by Section 62(1) of the Act the school to which he could lawfully be sent must be one whose managers are prepared to receive him. This willingness seems to have ceased in relation to the present applicant and the management of St. Lawrences in December, 1997.

  264. While an element of containment may be feasible and consistent with some form of education in the case of a child or a young person at some stage of his development, it appears to me, from a practical point of view, it may be increasingly difficult as the young person approaches his majority. Furthermore, the more nearly a place offering “an element of containment and detention” approaches a totally secure environment, the more closely it resembles a prison or place of detention for persons convicted of, or possibly on remand in respect of, criminal offences. Certain young persons, including the present applicant, have been committed to St. Patrick’s Institution other than in connection with criminal charges. One of these has had a complaint in relation to this detention declared admissible by the European Court of Human Rights. The efficacy of very secure detention, for educational and social purposes, of a person approaching his majority must, to say the least, be variable and the legality of secure detention may not be entirely underwritten merely by the fact that it takes place in an institution other than a penal one. The obligations of the State must, in my view, be assessed in a realistic way, just as the obligations of parents must be. On any view, a real likelihood of progress and cooperation are surely necessary to mandate the forcible detention of a person approaching his majority who is not being actively prosecuted for, or has not been convicted of, any criminal offence. I would reserve my position on the F.N. judgment, insofar as it might be read as requiring the State to detain unconvicted young persons in secure circumstances, until the point arises in another appeal.

  265. I would add that I consider the more fundamental reservations expressed in the judgment of Mr. Justice Murphy in this case as to the nature and status of the underlying rights of the applicant to be weighty ones. I do not however find it necessary to resolve these questions in order to decide this case and accordingly I would reserve my position until the matter arises in another case.

  266. I would however note in passing that the present applicant has not sought to rely, on the hearing of this appeal, on any of the statutory provisions which, it might be thought, may have a bearing on his position. The most obvious of these are the Education Act, 1998, the Equal Status Act, 2000, and the Education (Welfare) Act, 2000. The first of these has a long title which begins as follows:-

    An Act to make provision in the interests of the common good for the education of every person in the State, including any person with a disability or who has other special educational needs ....

  267. I am far from holding that any particular relief could be afforded to the applicant under these or any other statutes: it would be quite impossible to do so since the matter was not argued by or on behalf of the applicant. Also, it is clear that there is a limit to the benefit that any service, statutory or voluntary, can afford the applicant in the absence of his own willing cooperation. But if there is even a possibility of advancing the applicant’s interest under a statutory provision it seems unfortunate that a possibility is not explored before seeking to invoke an alternative method which is fraught with complexity from a legal and constitutional standpoint.

    History of proceedings

  268. The applicant first sought leave to apply for judicial review on the 23rd December, 1997. On that date he was refused leave to apply for relief by way of mandamus declaration and injunction “in respect of the failure of the first-named Respondent to provide for appropriate education suitable to the needs of the Applicant” .

  269. It will be recalled that in December, 1997 the applicant had been in St. Lawrences in Finglas since November 1996, on the basis of a voluntary continuance of his placement. This was discontinued because the applicant would not co-operate with the arrangements made for him. The order does not recite the grounds of the refusal.

  270. Just over a month later the applicant applied again for judicial review. It will be recalled, that on the 9th January, 1998 he had been interviewed by staff at City Motor Sports and offered a two and half week placement there beginning on the 3rd February of that year. On the 2nd February, 1998 however the application for judicial review was made.

  271. In the affidavit grounding this application, the applicant’s solicitor said that judicial review had been refused on the previous occasion because “The Court was of the view that more time should be given to the Minister for Education to provide a suitable school placement for the Applicant”.

  272. He detailed his efforts, which started on Christmas Eve, 1997, to contact various official persons. He refers to the interview with City Motor Sports but not to the fact that the applicant was offered a placement. This may not have been communicated at the date of the swearing of the affidavit, on the 22nd January, 1998.

  273. On the 2nd February, 1998 the applicant obtained leave to apply for the following reliefs:-

    (1)

    Mandamus by way of application for judicial review directing the first-named Respondent to provide for appropriate education suitable to the needs of the Applicant in a suitable educational establishment and the fourth-named Respondent to provide an appropriate child care plan for the Applicant in accordance with its obligation under the Child Care Act, 1991.

    (2)

    Declaration by way of an application for judicial review that the first-named Respondent in failing to provide for appropriate education suitable to the needs of the Applicant in a suitable educational establishment has deprived the Applicant of his constitutional rights under Articles 40 and 42 of the Constitution and in particular under Article 40.1 and 40.3 and Article 42.3.2 and Article 42.3 and that the fourth-named Respondent has failed in its statutory obligation under the Child Care Act, 1991 to provide suitable care for the Applicant having the welfare of the Applicant as the paramount consideration.

    (3)

    An interim injunction by way of an application for judicial review directing the first-named Respondent to forthwith provide for an appropriate education suitable to the needs of the Applicant in a suitable educational establishment and the fourth-named Respondent to provide suitable care and support services for the Applicant.

    (4)

    Such further and other relief as appears necessary so as to defend and vindicate the personal rights of the Applicant.

    (5)

    Costs.

  274. In its statement of opposition filed on the 3rd March, 1998 the Health Board accepted that it had obligations towards the applicant under the Child Care Act, 1991. The Health Board stated that it had used “all reasonable endeavours to ensure that the Applicant’s constitutional and statutory rights were fully defended protected and vindicated”. The Board referred to its having sought and obtained an order in respect of the applicant under the Childrens Act, 1908. The Board stated that it had negotiated with St. Lawrences to keep the applicant for a further year on the basis that the Board funded the provision of an extra special teacher for him, which it was prepared to do. However, “due to the behaviour of the Applicant around this time the Applicant was released from the care of St. Lawrences school”.

  275. In the affidavit grounding the statement of opposition Ms. Fionnuala Byrne, Social Worker, stated that this behaviour consisted of being “constantly abusive unco-operative and threatening when dealing with care staff who were attempting to assist him” until in early December 1997 “it was felt that the Applicant was a danger to both staff and fellow pupils there” i.e. in St. Laurences.

  276. The same affidavit also gives details of the “City Motor Sports” scheme. This is a voluntary scheme, funded by the Health Board, based in James’s Street. It operates on a full time basis five days per week, and also on a part time basis. Education in the nature of basic reading, writing and mathematical skills and life and social skills are taught. Apart from this, it has the merit, as the social worker put it, that it “may provide the Applicant with the necessary protections from extraneous pressure pending the provision of a high support unit”. Despite this, Mr. Ó Cillín recorded in his first affidavit “I regret that the Applicant has not availed of the offered placement except on a small number of occasions”.

  277. The Respondents in their statement of oppositions, the last of which was filed on the 20th April, 1998, opposed the granting of injunctive relief, the Health Board saying:-

    It is denied that mandamus and/or injunctive relief are appropriate orders in the circumstances of the present case.

  278. The applicant was before the High Court on a very large number of occasions throughout 1998. On the 24th July, 1998 he was ordered to attend City Motor Sports three mornings per week and Fortune House five afternoons per week. Presumably because of a collapse in these arrangements he was committed to Oberstown House until further order on the 5th August, 1998 and this order was renewed at various stages up to December, 1998. In the meantime, the Court made various orders requiring it to be given information as to the progress of the provision of facilities for young persons .

  279. In an affidavit sworn on the 16th June, 1998 the applicant’s mother stated that he had been arrested by the guards on the 26th May, 1998 when he was found to have cash in the sum of £560.00 on him, allegedly the proceeds of drug dealing. She also stated that “Over the last number of months (he) has been arrested on a number of occasions by members of An Garda Síochána and currently appears on remand before the Dublin Metropolitan Childrens Court charged with public order offences and an offence of criminal damage”. Apart from one order of the High Court, made the 13th January, 1999 and ordering the Director of Oberstown House to take the applicant to the District Court on the 18th January to give evidence, there is no further information as to what happened in relation to these charges. On the 26th March, 1999 the High Court ordered that the applicant be detained in St. Patricks Institution until further order. It appears that this was not done in the criminal proceedings which had been brought against the applicant (which would not in any event have been before the High Court) but in the purported exercise of an inherent power.

  280. The events of the latter part of 1999, which led directly to the order against which the present appeal is brought, are chronicled in a report of Ms. Gráinne Sullivan, social worker with the Health Board dated the 11th October, 1999 which was exhibited in the High Court proceedings. This records that for some three months prior to the 26th August, 1999 the applicant was participating in a programme which was “quite successful”. However in late August, 1999 the applicant resumed using drugs (smoking heroin) and the following day the child care workers who were accompanying him to and from his placements and other commitments withdrew on the basis that they considered the situation to be unsafe. The applicant was placed on a detoxification programme in Fortune House which was based on methadone and therapy five days per week. There was also provision for weekend methadone. Because of his drug status, he was regarded by the social worker as unsuitable for a planned track riders and stable hand course in Sligo. Consideration was given to sending him on a programme in Wales but his mother declined to consider this as she did not want him to leave Ireland.

  281. It appears from the foregoing that the judicial review proceedings have been adjourned on a very considerable number of occasions in the High Court, with various interim orders, as well as programmes and treatments, in place to care for the applicant. The last of these was apparently going well until the applicant relapsed into drug use.

  282. It appears from the applicant’s solicitor’s letter that the applicant’s case was listed before the High Court for the 14th December, 1999 for “review on the general issue”. This “general issue” related to what progress had been made by the State, and in particular the Department of Health and Children, in providing secure residential accommodation. On that day, it appears, the particular case of T.D. was put in for hearing on the 16th December, 1999. Evidence was heard from four officials on that day and the matter adjourned until the 21st December, 1999. According to Counsel for the applicant the issue before the Court at that stage was:-

    Your Lordship now has to judge, just about eighteen months later, what progress has been made and whether that is sufficient, whether what the State has done is sufficient of vindication of the constitutional rights of the children in question.

  283. In the course of his submissions, counsel for the applicant canvassed the options open to the Court, including the grant of injunctions. But he did not seek the relief later granted and neither was it sought in pleadings.

  284. When counsel for the applicant had finished his submissions the learned trial judge enquired:-

    Are you at this stage applying for injunctions in respect of the other facilities so as to put them on the same standing as the facilities that were the subject of the injunction already?

    Having taken instructions, counsel for the applicant said:-

    I will apply for an injunction, and I will apply for it on this basis; I believe that all the possible remedies should be available from today, all the options should be available. Clearly, if there was no application before the Court, your Lordship would still have an inherent jurisdiction to deal with it.

  285. Counsel for the State acknowledged that there had been a loss of time in carrying out the State’s intended provision of secure places but that the commitment to provide them remained. The nature of the delays was discussed in some detail and the learned trial judge intimated that he considered there had been culpable delay. Counsel said that:-

    The problems are not one of will or means .... but there have been genuine difficulties in advancing projects for reasons which have nothing to do with the finance or the intention or wishes of the Department. Nevertheless, it is hoped that the schedules which now appear before your Lordship can be and will be adhered to.

    The learned trial judge then said:-

    If that is the case then, you would not have any real objection to injunctions being granted which would ensure that you comply with the time limits which you have now put (before the Court)?

  286. Counsel for the State dissented from this. In further argument he queried the jurisdiction to grant injunctions making mandatory the completion of facilities in accordance with the time scale mentioned. The learned trial judge described this as “a very technical point” and Counsel said that it had not been taken, except in the context of the suggestion that an injunction may be granted. He said that he had first heard of that proposal on that morning and that apart from the reliefs claimed in the pleadings

    no other injunction was notified to me, without any disrespect intended to the Court. If I had felt that so far reaching a consequence was a possibility arising out of today’s hearing, that I would certainly have directed myself much more particularly towards the law which might be applicable to it.

  287. The learned trial judge on several occasions described objections to jurisdiction to grant an injunction, and to the locus standi of the plaintiff to seek such relief, as technical points now raised for the first time. Referring to the previous history of the T.D. case he said:-

    .... The understanding throughout was that Mr. D’s case was that was the case in which the application was heard, that it was really with a view to dealing with the national situation that this matter was brought back from time to time. This is the very first time the State has taken this very technical point.

  288. On the 21st December the learned trial judge gave an interim judgment in which he discussed the delays that had arisen and said:-

    I think this has been a substandard performance on the part of the Department of Health and Children.

    He held:-

    What I am going to do is permit the Applicant to set down notice of motion, not merely in the D. proceedings but in all of the proceedings, one single motion which can be entitled in all of the proceedings so a technical objection taken by the Minister can no longer have any effect. This motion can be set down for early next term in which you can spell with precision injunctive relief. What I have in mind is that you will seek injunctions which will accord precisely with what has been put before me by way of sworn evidence from the Department of Health concerning the facilities which are to be provided and the time within which they are to be provided. I am not interfering with departmental policy I am merely taking steps to ensure that if such an injunction is granted .... it will simply meant that the departmental word will be its bond ....

  289. Subsequent to this hearing the solicitor for T.D., on the 10th January, 2000, wrote to other solicitors with clients in a similar position. He said:-

    We confirm over the past number of years Mr. Justice Kelly has carried out a general Inquiry in relation to the adequacy of residential places for children requiring same and this is being carried out in the context of the T.D. case.

    He later said:-

    Please note Senior Counsel in this case .... has requested me to write to your good selves to seek agreement from the solicitors on record in proceedings for a residential placement for children .... that this motion can also be brought in their particular proceedings.

  290. On the 12th January, 2000 the solicitor for T.D. issued a motion with the title that these proceedings presently have, referring to the T.D. case and eight other cases. He sought:-

    (a)

    An order directing the second and fifth named respondents in the first entitled proceedings to take all steps necessary and to do all things necessary to facilitate the building or opening a maintenance of secure and high support units in accordance with the proposed arrangements set out in a report furnished to the High Court on the 16th December, 1999 by the Department of Health and Children.

    (b)

    The further or in the alternative an order directing the second and fifth named respondents in the first entitled proceedings to take such steps as to this Court may seem fit and proper, and within such time as to this Court may seem fit and proper, to ensure that there is adequate and proper secure and high support accommodation available for the Applicants and for other children with similar needs for such secure and high support accommodation.

    (c)

    Such further and other relief as to the Court may seem just and equitable.

    (d)

    An order providing for the costs of this application.

  291. At the renewed hearing on the 18th January, 2000 both counsel for the State and one of his witnesses came under considerable pressure to give an undertaking or explain why an undertaking would not be given. Objection was taken to the grant of an injunction on the basis of “the extent of the Court’s powers as opposed to that of the Executive” and it was pointed out that “the issue is one with implications which have gone far wider than are presented by the issues of this case”. It was also submitted that a court in granting the injunction would be intervening in matters of policy. It was agreed that a proposed injunction was in a form based on the Department’s own statement of its intentions, but it was submitted that it was objectionable to require the executive to apply to the Court in the event that it wished to change its policy. It was also submitted that the injunction was in a form which would not normally be granted, having regard to the difficulty of supervising the works in question in detail.

    Evidence with regard to the other Applicants

  292. In relation to the applicants other than T.D., a brief summary of the position of each of them was given in the evidence of Mr. Ó Cillín on the 18th January, 2000. D.B. was then in Trinity House and “It is hoped to operate a support at work and home programme if he co-operates with it”. M.B. had been in Newtown House since 1997 on a full time residential placement and she was receiving education on campus. G.D. was also in Newtown House having previously been in a remand and assessment centre. G.D. had been for a number of years in Crosbies House in Palmerstown where the Health Board had arranged for one to one tuition for him. In 1999 he was “deemed suitable to attend school outside the Centre” and was enrolled in a school where “he had the support of an additional teacher appointed to the staff, himself and one other boy”. However, his behaviour deteriorated seriously and he had been absenting himself from Crosbies and was at the time of the hearing in Oberstown House. P.H. had been identified as having a learning difficulty and was initially placed in a facility in Churchtown sponsored by the Eastern Health Board, and subsequently in another facility. Tuition was supplied to him there. In the October part of the hearing he was following a course in a special school in Blackrock but just before Christmas he ceased attending there and is believed to be back with his mother at home. V.J. was at the time of the hearing in St. Lawrences Industrial School, as a result of a recommendation of a case conference. T.L. had been the subject of a Fit Persons Order since March 1995. On foot of this she resided in Trudder House in Wicklow for two separate periods and was placed in Oberstown in June 1997. She then remained in another Eastern Health Board facility, Kilinarden House where she was until shortly before the hearing. She was the subject of a care order to last until the day prior to her eighteenth birthday and at the time of the hearing had been transferred to another Eastern Health Board Unit in Whitehall which operated a semi independent regime. According to the witness “she would be moving from full care environment to semi independent in preparation for living in the community”. S.T. was someone who gave rise to “huge difficulty”. He was receiving one to one tuition for a period of time and in 1997 was enrolled in a special school. There was a place for him in that institution at the time of the hearing but he did not want to attend. He was then placed in a Health Board facility with a view to his attending the special school from there but he declined to do so.

  293. The learned trial judge reserved judgment until the 25th February, 2000. On this occasion he delivered a lengthy written judgment and made the following order.

    THE HIGH COURT

    JUDICIAL REVIEW

    Friday the 25th day of February 2000

    BEFORE MR JUSTICE KELLY

    1997 No 461 JR

    BETWEEN

    T.D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M.D)

    APPLICANT

    AND

    THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEY

    GENERAL THE EASTERN HEALTH BOARD AND BY ORDER THE

    MINISTER FOR HEALTH AND CHILDREN

    RESPONDENTS

    [etc. as in title hereof]

    The Return to the Order herein dated the 21st day of December 1999 (wherein IT IS ORDERED that the Applicant in the first entitled proceedings herein be at liberty to apply by way of Notice of Motion for injunctive relief on behalf of all the Applicants in the above entitled proceedings) - coming on for hearing before this Court on the 18th and 19th days of January 2000

    Whereupon and on Reading said Order the Notice of Motion on behalf of all the Applicants in the above entitled proceedings filed on the 13th day of January 2000 the Affidavit of Pol ó Murchu filed on the 13th day of January 2000 the Affidavit of Ruairi ó Cillín filed on the 17th day of January 2000 and on hearing the oral evidence of Eamon Corcoran and Ruairi ó Cillín and on hearing Counsel for the Applicants and Counsel for the Minister for Education and Science Counsel for the Minister for Health and Children and the Eastern Health Board (namely the first fifth and fourth named Respondents respectively in the first entitled proceedings)

    And the Court reserving its judgment

    And the matter coming on for judgment on the 25th day of February 2000

    IT WAS ORDERED that the first and fifth named Respondents in the first entitled proceedings do (in relation to all the aforesaid entitled proceedings) take all steps necessary to facilitate the building and opening of secure and high support units and places as follows:-

    1.

    (a)

    Two six bedded high support units with ancillary educational facilities at Castleblayney in the County of Monaghan on or before the 31st December 2001

    (b)

    A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2000

    (c)

    A five bed high support unit at Elm House in the County of Limerick on or before the 31st October 2000

    (d)

    A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001

    (e)

    A five bed high support unit in the County of Clare on or before the 31st July 2001

    (f)

    A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001

    (g)

    An additional high support places in the Waterford region on or before the 31st May 2000

    (h)

    An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May 2000

    (i)

    An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2001

    (j)

    A five bed high support Unit for boys in the Southern Health Board region on or before the 31st August 2001

    THE HIGH COURT

    And the Court ORDERED that the Applicants in all the aforesaid entitled proceedings do recover against the Respondents their costs including reserved costs arising from the hearing of those proceedings

    IT WAS FURTHER ORDERED that execution on foot of the aforesaid Order be stayed for one week

    Liberty to the first and fifth named Respondents (as per the aforesaid first entitled proceedings) on 72 hours notice to seek variation in the terms of the aforesaid injunction relief granted

    And the matter coming on for mention on this day

    Whereupon and on hearing Counsel for the respective parties IT IS ORDERED that the aforesaid stay on the injunctive relief granted and on the order for costs be lifted

    Liberty to apply

    The form of order

  294. This order is, in places, somewhat oblique in form but is unambiguously mandatory in substance. I am not clear what meaning is to be attached to the bracketed words “(in relation to all the aforesaid entitled proceedings)”. The facilities set out in the lettered paragraphs far exceed those required, on any view, for the applicants named in the titles. But the general effect of the order is clear: the specified facilities are to be built and opened by the dates specified. The two ministers are to “to take all steps necessary to facilitate” this building and opening. Having regard to the context, and to the evidence given, this can only mean that they are to secure the sites where necessary, pay for and procure the building and staff the premises and ensure their opening.

  295. To order the building and opening of ten units and additional places in others is easily done. The order however is virtually silent on the manifold steps and decisions which arise in every building project. What does “take all steps necessary to facilitate the building and opening” of units by particular dates in practise? To address only the difficulties described in evidence, is planning permission to be sought even if the process involves exceeding the time limits? Is VAT to be paid or not on the transfer from one department to another and who is to determine this? Again, are the units to be staffed regardless of the effect this may have on wage negotiations? What if there are no or insufficient applicants?

  296. These matters and others are not addressed specifically at all and are addressed generally only in that there is liberty to apply for variation. Does this mean that the Court will resolve all such problems and make decisions on its own responsibility?

  297. These and other matters lead me to think that there may be much substance in the defendant’s contention that this form of injunction is outside the scope of relief a court can afford, by reason of the difficulty of policing it and enforcing it in detail.

  298. I also believe that the applicants locus standi to seek the injunctive relief claimed in the notice of motion of the 12th January has not been established. I have no doubt that T.D. had locus standi to seek the reliefs claimed in his original proceedings of the 2nd of February, 1998, all of which were personal to himself. While the proceedings taken on behalf of the other eight were not opened to us, I have no reason to believe that they exhibited any absence of locus standi or that the reliefs claimed were other than personal. For the reasons given by the learned Chief Justice I too am satisfied that the these applicants have sufficient locus standi “to raise the more general issues of public importance as to the nature of the remedy available in such cases”. But I do not believe that the evidence provided, orally or on affidavit, in support of the relief claimed in the notice of motion of the 12th January, 2000 is sufficient to show any entitlement in these applicants as a group, or in any one or more of them individually, to the relief granted.

  299. In fact the relief claimed in the notice of motion was heavily influenced by what the learned trial judge said at the end of the hearing on the 21st December, 1999. Having granted leave to issue the notice of motion he said:-

    What I have in mind that you will seek injunctions which will accord precisely with what has been put before me by way of sworn evidence in the Department of Health concerning the facilities which are to be provided and the time within which they are to be provided.

  300. In other words, the individual applicants were to seek, not the facilities which it was alleged that they themselves required but a mandatory injunction in relation to the entire facilities which, on departmental policy as it then stood, were required to meet overall needs.

  301. No applicant that I am aware of, and certainly not T.D., had previously sought to enforce a national or overall solution in this fashion. Subsequent to the 31st December, 1999 the solicitor for T.D. in effect canvassed other solicitors to permit their clients to be joined in this application. The learned trial judge thus suggested the form of relief to be sought by the applicants in the joint motion.

  302. On the hearing of the motion, no evidence was led as to the then needs of T.D., despite an invitation to do so. The Court was given the brief summary, comprehensively summarised above, in relation to the other applicants, but there was no sufficient evidence in my view that the facilities directed to be built by the time directed would meet the needs of the applicants or any of them.

  303. Accordingly I do not believe that the applicants, individually or as a group, have locus standi to apply for the order suggested by the learned trial judge. Additionally, I do not believe that the evidence led on the hearing of the motion established an entitlement in the applicants, individually or as a group, to the relief actually granted.

  304. I do not believe that the plaintiff’s claim to these reliefs is supported by the locus standi which the plaintiff was found to have in Crotty v An Taoiseach [1987] IR 713. There, the plaintiff challenged the purported ratification by the State of the Single European Act. It was found by the Supreme Court that he had locus standi to challenge the Act in the circumstances where its coming into force would affect every citizen notwithstanding his failure to prove any special injury or prejudice peculiar to himself. In this case, the applicants originally alleged specifically injury and prejudice to themselves and undoubtedly had the locus standi to do so. But the specific relief claimed in the notice of motion of the 12th January, 2000 far exceeds anything relevant to themselves, individually or as a group. On the other hand, it is not a form of relief against a development which would affect every citizen, that is the community as a whole. It is a form of relief designed to ensure that a specific policy would be carried out and could not be changed without the assent of the Court.

  305. But it would be inadequate to resolve the present appeal on this or any other purely technical or incidental point. The salient issue raised by the order is whether, consistently with the regime of separation of powers contained in the Constitution, and the functions attributed to each organ of government, a mandatory order in this form can, in principle, be granted by the Courts against the executive branch.

    Separation of powers: nature of the issue

  306. The question of whether relief of a particular kind is within the power of a court to grant or, on the other hand (to borrow the phrase of Costello J. in O’Reilly v Limerick Corporation [1989] ILRM 181) it is of a kind which must be sought in Leinster House and not the Four Courts, involves the application of the constitutional doctrine of the separation of powers. It has nothing to do with the merits or otherwise of the separate question of whether it is desirable that the provision in question should be made.

  307. The question of whether the courts can order that particular steps be taken, or whether the matter at issue is one within the constitutional scope of the legislature or executive, has arisen on a number of occasions. In addition to the cases cited in the judgment of the learned Chief Justice, recent examples include Sinnott v The Minister for Education (Supreme Court unreported 12th July, 2001) and North Western Health Board v W. (Supreme Court unreported 8th November, 2001). Much public commentary in such cases took as its starting point the commentator’s view of the merits or otherwise of the underlying issue, and the issues themselves have been as diverse as whether the State should become a party to the Single European Act and what provision is proper to be made for autistic children. But the question whether a particular issue is within the remit of the courts, the legislature or the executive is a quite different question, raising quite different issues. If the judiciary, the legislature or the executive took to themselves powers to deal with a particular issue simply on the basis that it provoked very strong feelings in the relevant organ and that it had not, in the opinion of that organ, been adequately addressed by the other organs of government, there would be grave danger of subversion of the constitutionally mandated separation of powers. Thus, for example, in the leading case of Buckley v Attorney General [1950] IR 67 the executive and the legislature claimed it was not simply desirable but imperative that a particular action at law be removed from the sphere of the judicial power and dealt with according to specially introduced legislation. But the sincerity and vehemence with which this view was held did not clothe the action taken on foot of it in constitutionality. Nor did what was perceived to be the wholly exceptional nature of the case justify the removal from the courts of an action of which they were properly seised.

  308. The concept of the separation of powers is an essential part of the Constitution of virtually all democratic societies and of the democracy envisioned by the Constitution of Ireland in particular. If the courts (or either of the other organs of government) were to disregard it in a particular case they would expand their own powers at the expense of those of the other organs of government. This would be an unconstitutional proceeding, quite impossible for judges whose declaration obliges them to uphold the Constitution. In Sinnott v The Minister for Education, I set out at some length my views on this topic and I would repeat what I said there by way of an introduction to the resolution of a similar issue in this case. I wish to reiterate in particular that the question is the very reverse of a purely technical one. In Buckley v Attorney General the former Supreme Court said (at page 81):-

    The manifest object of [Article 6] was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.

    [emphasis added]

  309. If the courts were to depart from this imperative requirement in one case, moved perhaps by a great wave of sympathy for the plight of a particular plaintiff, they would naturally and even logically be asked to do so in many other cases, by persons whose plight was no less affecting. Such a course would represent the arrogation by the courts to themselves of powers which the Constitution vests elsewhere.

  310. It would of course be possible by constitutional amendment or by the adoption of an entirely new constitution, to vest the courts with powers and responsibilities in social, economic and other areas which are presently the preserve of the other organs of government. This, perhaps, would give immediate satisfaction to those who thought the courts more likely to adopt their views of the merits of certain social or economic questions than the legislature or executive. But it would vest responsibility in these areas in a body without special qualifications to discharge it which, if its views fell into disfavour, would not easily be replaced by another more congenial. It would also render technical and legalistic discussions which should properly be conducted in quite a different manner. And if courts extend their powers to questions which are essentially political they will soon either fossilise developments on such issues or lose that basis in formal and technical logic and consistency which is an essential hallmark of legal, though not necessarily of political, discourse. In a work whose very title, Government by Judiciary (Harvard University Press 1977) is suggestive on this topic the distinguished scholar Raoul Berger wrote in an American context:-

    The present generation, floating on a cloud of post Warren Court euphoria, applauds a Court which read its libertarian convictions into the fourteenth amendment, forgetting that for generations the Court was harshly criticised because it transformed laissez faire into constitutional dogma in order to halt the spread of ‘socialism’.

    Nature of the separation of powers

  311. The concept of the separation of powers can be traced to antiquity and to the distinction, elaborately expanded by Costello J. (as he then was) in O’Reilly v Limerick Corporation, between distributive and commutative justice. Its modern history however dates from the first stirrings, in the seventeenth century, of the view that the power to govern was not properly based either on the hereditary principle or on naked force but on some form of consent by or contract with the persons to be governed. The elaboration of the theory by Montesquieu in his De l’Esprit des Loix [1748] was influential with the framers of the French Revolutionary Constitutions and, more historically significant, of the United States Constitution. The principle is set out with unusual clarity in the Constitution of State of Virginia [1776]:-

    The Legislative, Executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of the County Courts shall be eligible to either House of Assembly.

  312. There is sometimes a tendency to confuse the separation of powers with the independence of the judiciary. The latter is an essential aspect of the former but it is an aspect only. The Virginian formulation emphasises the mutual independence of the different powers of government. It is right that the judiciary, within their constitutional sphere, should be quite independent of the legislature and the executive, but it is no less right that these, within their respective constitutional spheres, be independent of the judiciary.

  313. Though the principle of the separation of powers is clear, its details vary from country to country in significant degrees. For example, a country whose executive, or the head of whose executive, is directly elected such as the United States will obviously have a different relationship between legislature and Executive to that prevailing in a country such as Ireland where the executive is elected by, and responsible to, the legislature.

  314. The separation of powers under the Constitution of Ireland was comprehensively described by Mr. Justice Costello in O’Reilly v Limerick Corporation (at page 194) as follows:-

    The State .... is the legal embodiment of a political community whose affairs are regulated by the Constitution. The powers of Government of the State are to be exercised by the organs of State established by it. The sole and exclusive power of making laws for the State is vested in the Oireachtas; the executive power of the State is exercised by or on the authority of the Government; and justice is to be administered in courts established by law. In relation to the raising of a common fund to pay for the many services which the State provides by law, the Government is constitutionally responsible to Dáil Eireann for preparing annual estimates of proposed expenditure and estimates of proposed receipts from taxation. Approval for plans for expenditure and the raising of taxes, is given in the first instance by Dáil Eireann and later by the Oireachtas by the enactment of the annual Appropriation Act and the annual Finance Act. This means that questions relating to raising common funds by taxation and the mode of distribution of common funds are determined by the Oireachtas, although laws enacted by the Oireachtas may give wide discretionary powers to public authorities and public officials (including Ministers) as to their distribution in individual cases.

  315. This passage is based on constitutional provisions which, in my opinion, are clear and unambiguous. Article 15.2.1 of the Constitution provides:-

    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 relation to the expenditure of public monies, Article 17.2 of the Constitution provides:-

    Dáil Eireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public monies unless the purpose of the appropriation shall have been recommended to Dáil Eireann by a message from the Government signed by the Taoiseach.

    Article 28.2 provides:-

    The Executive power of the State shall, subject to the provisions of this Constitution, be exercised by or under the authority of the Government.

    Article 28.4.1 provides:-

    The Government shall responsible to Dáil Eireann.

  316. These Articles locate the power to make laws and to appropriate public monies to particular purposes in the non judicial arms of government. The exercise of the executive power is vested in the Government which is responsible to Dáil Eireann. On the ordinary principles of construction I believe that this responsibility is an exclusive one; the Government is not in this respect responsible to any other person or body. As appears from the citation earlier in this judgment from Buckely v The Attorney General, these Articles, combined with Article 6, not merely set forth the distribution of powers, but they “require that these powers should not be exercised otherwise”. I agree with the observations of Murray J. in this case to the effect that the order under appeal would tend to “undermine the answerability of the executive to Dáil Eireann and thus impinge on core constitutional functions of both those organs of State”. In my view those observations are clearly borne out by the passage which follows them in the judgment of Murray J.

  317. In my judgment in Sinnott, I gave a number of reasons why the courts could not assume the policy making role in relation to the multitude of social and economic issues which form the staple of public debate. I said at page 56:-

    Firstly, to do so would offend the constitutional separation of powers. Secondly, it would lead the Courts into the taking of decisions in areas in which they have no special qualifications or experience. Thirdly, it would permit the Courts to take such decisions even though they are not, and cannot be, democratically responsible for them as the legislature and the executive are. Fourthly, the evidence based adversarial procedures of the Court, which are excellently adapted for the administrative of commutative justice, are too technical, too expensive, too focused on the individual issue to be an appropriate method for deciding on issues of policy.

  318. This list is by no means exhaustive. One might add that if the courts (or either of the other organs of government) expand their powers beyond their constitutional remit, this expansion will necessarily be at the expense of the other organs of government. It will also be progressive. If citizens are taught to look to the courts for remedies for matters within the legislative or executive remit, they will progressively seek further remedies there, and progressively cease to look to the political arms of government. Such a development would certainly downgrade the political arms of government and, just as significantly, it would tend to involve the courts, progressively, in political matters. This cannot be permitted to occur. The mandatory procedures whereby the courts give judgment only on legal evidence, almost always heard in public, and legal submissions, necessarily often technical, do not remotely equip them to evolve and to alter policy. Their necessary immunity from election and from popular approbation or the reverse make them quite unfitted to direct the expenditure of public funds.

  319. In my view the courts in their own interest and for the protection of their legitimacy in the discharge of their proper role, should be reluctant even to appear to trespass on the spheres of the political organs of government. Commenting on a similar but much more acute development in the distinctive jurisprudence of the United States, Justice White, giving the Opinion of the United States Supreme Court said in Bowers v Hardwicke 478 US 186 at 194:-

    The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge made constitutional law having little or no cognisable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the fifth and fourteenth amendments. There should be, therefore, great resistance to expand the substantive reach of those clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.

    It is possible to agree with these words without necessarily endorsing everything said in this case.

  320. It is perhaps natural that much legal thinking on the separation of powers has as its primary focus the immunity of the judiciary from improper pressure or interference from the other organs of government. This case brings into sharp focus the fact that the spheres of those other organs are also constitutionally mandated and that the division of powers is in itself a high constitutional value directed at the preservation of the people from the accumulation of excessive power by any one organ or its members. History, ancient and modern, amply demonstrates the necessity for this protection.

  321. Article 34.1 of the Constitution provides:-

    Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

    Article 35.2 provides:-

    All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.

  322. These Articles have often been invoked in cases whose result has been the protection of the judicial sphere from improper incursion by the other organs of government. The classic statement of the distinction between the justice whose administration is provided for in Article 34, and the political functions which are constitutionally bestowed elsewhere, is O’Reilly v Limerick Corporation. I gratefully adopt the whole of the last section of that judgment. In particular, I would draw attention to the following passages:-

    There is an important distinction to be made between the relationship which arises in dealings between individuals .... and the relationship which arises between the individual and those in authority in a political community (which for convenience I will call the Government) when goods held in common for the benefit of the entire community (which would nowadays include wealth raised by taxation) fall to be distributed and allocated.

    An obligation in distributive justice is placed on those administering the common stock of goods, the common resource and the wealth held in common which has been raised by taxation, to distribute them and the common wealth fairly and to determine what is due to each individual. But that distribution can only be made by reference to the common good and by those charged with furthering the common good (the Government); it cannot be made by any individual who may claim a share in the common stock and no independent arbitrator, such as a court, can adjudicate on a claim by an individual that he has been deprived of what is his due. This situation is very different in a case of commutative justice. What is due to an individual from another individual (including a public authority) from a relationship arising from their mutual dealings can be ascertained and is due to him exclusively and the precepts of commutative justice will enable an arbitrator such as a court to decide what is properly due should the matter be disputed. This distinction explains why the Court has jurisdiction to award damages against the State when a servant of the State for whose activity it is vicariously liable commits a wrong and why it may not get jurisdiction in cases where the claim is for damages based on a failure to distribute adequately in the plaintiff’s favour a portion of the community’s wealth.

    [emphasis added]

    The jurisdiction to make the present order

  323. The order of the High Court, recited earlier in this judgment, is undoubtedly one which purports to discharge a policy making and resource distributing function. That is, it purports to exercise functions which, on the face of them, are within the proper remit of the political organs of government. The central issue raised by the present case is whether an order of that sort can properly be made by the High Court or by this Court on appeal.

  324. It is true, as it pointed out the judgment of the learned Chief Justice, that “the Ministers are being asked to do no more than carry into effect a programme prepared by them and which they assert it is their intention to implement”. For the reasons given by the learned Chief Justice I consider that this fact has no bearing on the question of whether the courts have power to make such an order. The jurisdiction to do so cannot depend on whether the Ministers against whom the order is directed might or would do what is ordered to be done in any event. Nor can it depend on the fact that the Court might vary the order if the Minister changed his policy and convinced the Court that it was proper that he should do so. The Court either has, or it has not, jurisdiction to make the order. This is a purely legal question, quite independent of the Minister’s present intentions and of the possibility that the Court might amend the order in the future.

    The jurisdiction claimed

  325. In asserting the jurisdiction to make the order appealed against, the learned trial judge approached the matter in a number of different way. He held that no question of interference with policy arose because “here the Executive has formulated a policy which I am quite satisfied will, if carried into effect within the time scales specified, address in an adequate, albeit belated, fashion the rights of these Applicants. I am not, therefore, making policy or interfering with it”.

  326. For the reasons stated above, and set out more fully in the judgment of the learned Chief Justice, I am satisfied that this is not a point relevant to jurisdiction.

  327. Secondly, the trial judge said:-

    .... I do not accept that the Court in this case is making policy. Or even if it were called upon to do so, I reject the suggestion that this Court does not have jurisdiction to make orders against the administrative branch of government where it is in default of its constitutional obligations towards a litigant. Having said that, however, as I pointed out in D.B. v The Minister for Justice such orders will never be made lightly. That is because our system of government is based on a separation of powers between legislature, executive and judiciary. It is to be expected that each of these branches of government would demonstrate respect for each other and their respective functions.

  328. D.B. v Minister for Justice [1999] 1 IR 29 was a case of a similar sort to the present in which the applicant had sought a mandatory order directing the building of a secure unit and directing the State to finance this. In granting injunctive relief Kelly J. referred to Article 40.3.1 of the Constitution:-

    The State guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate the personal rights of the citizens.

    He then quoted a number of well known judicial dicta including the following from Hamilton C.J. in D.G. v Eastern Health Board [1997] 3 IR 511 at 522:-

    If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the courts have the jurisdiction to do all things necessary to vindicate such rights.

    He also relied upon the passage from the judgment of Ó Dálaigh C.J. in The State (Quinn) v Ryan [1965] IR 70 at 122:-

    It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodian of these rights. As a necessary corollary it follows that no-one can within impunity set these rights at nought or circumvent them, and that the Court’s powers in this regard are as ample as the defence of the Constitution requires.

    Kelly J. also said:-

    It is said that this Court does not have any entitlement to become involved in what was called matters of policy. I am by no means persuaded that this is so. If such an intervention were required in order for this Court to carry out its duties under the Constitution in securing, vindicating and enforcing constitutional rights, then, in my view it would be open to it to do so. One would hope that such a situation would not arise. However, I need not decide this question nor do I purport to do so since any order I make will not involve the Court being involved in questions of policy.

  329. The reason why Kelly J. did not regard the Court in that case as being involved in matters of policy was because “The Order .... will merely ensure that the Minister who has already decided on the policy lives up to his word and carries it into effect”. As already indicated, I do not believe that this is relevant to the question of the jurisdiction to make this type of order at all.

  330. Kelly J. in D.B., at page 45 of the report, addressed the question of whether the order would achieve anything. He said:-

    The granting of this injunction means that the Minister is no longer at large concerning the approach to be adopted to solving this problem. The developments proposed will now have to be completed and within the time scales specified. If there is to be any future change of policy or if the times indicated cannot be met, application will have to be made to this Court on the part of the Minister for a variation of the injunction. This will mean that not merely will the Court have to be informed of all these developments .... but objectively justifiable reasons will have to be furnished to it as to why the injunction should be varied. A variation will not be granted lightly.

  331. Both in argument and in his judgment in this case, the learned trial judge referred frequently to D.B. and pointed out quite correctly that it had not been appealed. I do not understand why no appeal was taken having regard to the fact that counsel for the State in both cases vehemently asserted that there was no jurisdiction to grant the order sought. The matter was clearly one of the highest importance. However I do not consider that the State’s omission to appeal the judgment and order in D.B in any sense estops them from raising the same point on appeal here. But the point as to jurisdiction is clearly one which could profitably have been resolved at an earlier time.

  332. In his judgment of this case, the learned trial judge cited the authorities already referred to in D.B., and others, in support of his jurisdiction to make the orders sought. He also cited other cases including F.N. and District Judge McMenamin v Ireland [1996] 3 IR 100. There judicial observations as to the propriety of certain states of fact were recorded without, however, relief of the sort now sought being granted. After a survey of the history of cases of the present kind before the courts the learned trial judge observed:-

    The Court has to attempt to fill the vacuum which exists by reason of the failure of the legislature and the executive.

    Other points on jurisdiction

  333. Although the learned trial judge did not discuss the separation of powers in great detail, and did not at all address O’Reilly v Limerick Corporation, it has been suggested elsewhere that the latter case is distinguishable and that the separation of powers found in the Constitution is not a rigid separation but a functional separation only which can be departed from in rare and exceptional circumstances. It is “a doctrine of the separation of powers but not in a strict sense”. It is suggested that the power duty and responsibility of the Superior Courts to guard the Constitution is a power which is not consistent with the strict doctrine of the separation of powers. However it is a fundamental principle in the Constitution.

  334. This inconsistency, in the view of Denham J., can be resolved by seeking a balance between the application of the doctrine of the separation at powers and protecting the rights or obligations under the Constitution. In doing this

    whilst acknowledging the separation of powers, and the respect which must be paid to all the great organs of state, if it is either a matter of protecting rights and obligations under the Constitution or upholding the validity of a statute, then the Constitution must prevail. Similarly in relation to constitutional rights the appropriate institution must exercise its powers in the light of the Constitution. When a Court is required to determine such an issue, a declaratory order is the preferable procedure. On those very rare occasions when such an advisory approach is not feasible then the Court has the power and indeed the duty and responsibility to uphold the Constitution and to vindicate constitutional rights.

    Has the Court a jurisdiction?

  335. I believe that all of the suggested foundations for a jurisdiction to make an order of the kind in question here are based on a misapprehension of the powers of the Superior Courts in relation to those of the other organs of government. The Constitution, in my view, does not attribute to any of the branches of government an overall, or residual, supervisory power over the others. It creates three equal powers, none of which is generally dominant. Equality of the powers can only operate in practice on the basis that each has its discrete remit. Since each of the powers, legislative, executive and judicial must “fit harmoniously into the general constitutional order and modulation” as Henchy J. said in DPP v O’Shea [1982] IR 384, the Constitution provided specifically for certain mutual checks and balances. These include the power of the courts to ensure that legislation is consistent with the Constitution, the power of the legislature to remove a judge of the Superior Courts and the power of the executive to tender binding advice to the President as to the appointment of judges.

  336. The existence of these specific powers does not, in my view, suggest that the separation of powers is in any general sense a porous one, still less that a court, or any other organ of government, can strike its own balance, in a particular case, as to how the separation of powers is to be observed.

  337. I believe, with great respect to the High Court judgment, that its view of the separation of powers is unduly courts centred. The proposition that “The Court has to attempt to fill the vacuum which exists by reason of the failure of the legislature and the executive” seems to me to come close to asserting a general residual power in the courts, in the event of a (judicially determined) failure by the other branches of government to discharge some (possibly judicially identified) constitutional duty. If this were accepted I believe it would have the effect of attributing a paramountcy to the judicial branch of government which I do not consider the Constitution vested in it. As Walsh J. said in Murphy v Dublin Corporation [1972] IR 215 at 234:-

    As the legislative, executive and judicial powers of government are all exercised under and on behalf of the State, the interest of the State, as such, is always involved. The division of powers does not give paramountcy in all circumstances to any one of the organs exercising the powers of government over the other.

  338. In O’Reilly, at page 195, Costello J. said:-

    The courts constitutional function is to administer justice but I do not think that by exercising the suggested supervisory role it could be said that a court was administering justice as contemplated in the Constitution .... In exercising this function the court would not be administering justice as it does when determining an issue relating to commutative justice but it would be engaged in an entirely different exercise, namely an adjudication of the fairness or otherwise of the manner in which other organs of State had administered public resources.

  339. Equally, in Boland v An Taoiseach [1974] IR 338, Budd J. said:-

    The judiciary has its own particular ambit of functions under the Constitution. Mainly, it deals with justiciable controversies between citizen and citizen or the citizen and the State and matters pertaining thereto. Such matters have nothing to do with matters of State policy. Viewing the matter from another angle, as to the nature of any relief that could properly be claimed in proceedings of this nature, I ask whether it could be said that the Courts could be called upon to pronounce adversely or otherwise of what the Government proposed to do on any matter of policy which it is in the course of formulating. It would seem that that would be an attempted interference with matters which are part of the functions of the Executive and no part of the functions of the judiciary. From a practical standpoint alone, what action would be open to the Courts? The Courts could clearly not state that any particular policy ought not to be pursued.

    The Constitution goes further in indicating how far the policies involved in government decisions as to policy such as this are removed from the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them. Ultimately, there is the responsibility of the Government to the people who must be consulted by way of referendum where any change of the Constitution is contemplated.

  340. The terms of Article 40.3.1 involve the State in a guarantee to “respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. This guarantee is given by the State and not uniquely by any one of the organs of State. It is a guarantee to respect, vindicate and defend these rights “by its laws”. Since the Constitution is the fundamental law of the State it follows that the solemn task of respecting, vindicating and defending these rights is to be undertaken by all the organs of State, each in its constitutionally mandated and delimited sphere.

  341. These propositions appear to me to be amply borne out by authority. As to the proposition that the obligations imposed by the Article are imposed on each branch of government, in The People v Shaw [1982] IR 1, Kenny J. said of Article 40.3.:-

    The obligation to implement this guarantee is imposed not on the Oireachtas only but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws ....
  342. As to the relevance of the separation of powers to discharge of other functions and obligations imposed by the Constitution, Finlay C.J. said, in Crotty v An Taoiseach [1987] IR 713 at 772:-

    The separation of powers between the legislature, the executive and the judiciary, set out in Article 6 of the Constitution, is fundamental to all its provisions. It was identified by the former Supreme Court in Buckley v Attorney General [1950] IR 67 and has since been repeatedly acknowledged and implemented by this Court. It involves for each of the three constitutional organs concerned not only rights but duties also; not only areas of activity and function, but boundaries to them as well.

  343. In effect, each organ of government shows respect for the others by recognising the boundaries of which Finlay C.J. spoke. I do not believe that the boundaries are porous or capable of being ignored or breached because one organ rightly or wrongly considers that another organ is unwise or inadequate in the discharge of its own duties. It is easy to imagine circumstances in which a hypothetical legislature or executive might be annoyed or frustrated or even outraged by a judicial decision, or even by the very idea that the judiciary would decide a particular issue, as happened in Buckley. But it is now an axiom of our constitutional dispensation that, assuming the decision to be properly within the judicial sphere, the other organs cannot remove the matter in issue from that sphere or set aside the decision in a lis inter partes. There is an obvious corollary of this in relation to matters properly within the sphere of the legislature or executive.

  344. In my opinion, statements such as that quoted from The State (Quinn) v Ryan must be read in context and read with the separation of powers which “is fundamental to all (the Constitutions) provisions” in mind. In my judgment in Sinnott I endeavoured to place Quinn's case in context and observed that:-

    So read, it is clear that it is not an assertion of an unrestricted general power in the judicial arm of government but rather a strong and entirely appropriate statement that a petty fogging, legalistic response to an order in the terms of Article 40.4 of the Constitution will not be permitted to obscure the realities of the case, or to preclude appropriate action by the Courts.

  345. Quinn v Ryan related to one of the most quintessentially judicial of all judicial duties, an inquiry into the legality of the detention of a citizen who invoked the judicial power, specifically provided in the Constitution, to conduct such inquiry. The oft cited dictum, quoted by the learned trial judge, must be read in that context. Its application to the present case must be considered in its quite different context and in particular in light of the fact that the order granted here plainly involved both the dedication of public money to the particular purposes specified and the enforcement by judicial order of a particular policy which, it is clear from the last portion quoted above from the judgment in D.B., cannot be changed without judicial sanction. I am of the view that the statement in D.B. “If there is to be any future change of policy .... application will have to be made to this Court on the part of the Minister for a variation of the injunction”, is an incursion into the field of national policy. The same statement clearly applies to the order now under appeal. It is an express assertion of a power to control policy change in this area.

  346. In Mhic Mathúna v Ireland [1995] 1 IR 484 this Court approved the principles elaborated by Costello J. in O’Reilly v Limerick Corporation. In Mhic Mathúna, the plaintiffs were a married couple with nine children who complained that, over time, the tax free allowance to married couples in respect of dependent children had been reduced to nil, while unmarried mothers and other categories of parents continued to enjoy a tax free allowance in respect of such children. They claimed that certain provisions of the Income Tax Act, 1967 and the Social Welfare Act, 1981 were unconstitutional.

  347. Finlay C.J. set out the issues in the case which included:-

    .... The vital question as to whether it was a proper discharge of the constitutional duty of the State under Article 41 bearing in mind the other constitutional duties of the State and the other demands properly to be made upon the resources of the State.

    As is already indicated in this judgment these are peculiarly matters within the field of national policy, to be decided by a combination of the executive and the legislature, that cannot be adjudicated upon by the Courts.

  348. This was a recognition of the boundary which lies between the remit of the judicial branch of government and those of the other branches. It represents, in my view, the usual and proper restraint which the courts have applied in this area. The reliefs granted in D.B. and in this case are unique. In granting them, I believe, the learned trial judge fell into unconstitutionality, to use the words of Henchy J. in The State (Holland) v Kennedy [1977] IR 193.

  349. One of the reasons why recognition of these boundaries is important is that a failure to recognise them can bring the courts into unwarranted and unjustifiable conflict with the political branches of government. If an order of the sort in question here could properly be made, it could properly be enforced by the ordinary procedures for the enforcement of court orders in civil matters including contempt procedures. Assuming the order to be properly made, if a relevant minister changed his or her policy without court sanction, or was tardy in implementing a policy enshrined in a courts order, the Court might proceed to consider the question of contempt. But this would be a wholly unwarranted and unconstitutional proceeding because, in the words of Chief Justice Finlay:-

    Matters within the field of national policy, to be decided a combination of the executive and the legislature, .... cannot be adjudicated upon by the Courts.

  350. Accordingly, the fundamental requirement for constitutional harmony and modulation imperatively requires that the courts, as well as the other branches of government, recognise and observe the boundaries between them.

  351. This is not to say that the courts can never in any circumstances make an order relating to the functions of the executive. In Mac Mathúna Finlay C.J. asserted towards the end of his judgment:-

    With regard to the provisions of Article 41 of the Constitution, it is clearly conceivable that under certain circumstances statutory provisions, particularly those removing in its entirety financial support for the family, could constitute a breach of the constitutional duty of the State under Article 41. This is not a case where such a total removal of support or absence of support can be asserted. What is asserted here is that the measure of support over a period has become insufficient.

  352. It was also acknowledged in my judgment in Sinnott that court intervention would be justified if, almost impossible to imagine, the political branches of government were to cease to make any provision for primary education. But it was stressed that a power available to deal with an absolutely extreme situation must not be applied to another less acute. In the present case, as the facts summarised in the first portion of this judgment make clear, enormous efforts have been made at considerable expense to address the needs of the applicant.

  353. I have read the judgment of Murray J. in this case and I wish to express my agreement with what he says in relation to the circumstances in which the Court may make a mandatory order compelling the executive to fulfil a legal obligation. First, such a thing may occur only in absolutely exceptional circumstances “where an organ or agency of the State has disregarded its constitutional obligations in an exemplary fashion. In my view the phrase ‘clear’ disregard can only be understood to mean a conscious and deliberate decision by the organ of State to act in breach of its constitutional obligation to other parties accompanied by bad faith or recklessness”.

  354. Secondly, even in such extreme circumstances the mandatory order might direct the fulfilment of a manifest constitutional obligation but “without specifying the means or policy to be used in fulfilling the obligation”.

  355. Such an order, in my view, could only be made as an absolutely final resort in circumstances of great crisis and for the protection of the constitutional order itself. I do not believe that any circumstances which would justify the granting of such an order have occurred since the enactment of the Constitution sixty-four years ago. I am quite certain that none are disclosed by the evidence in the present case.

    Right to appeal

  356. I wish to reiterate in the context of this case an observation which I made in my judgment in Sinnott, as to the right of appeal.

  357. The appellate jurisdiction of this Court proceeds from Article 34.4.3. of the Constitution. A person bringing an appeal to this Court is accordingly invoking a constitutional jurisdiction and availing of a constitutional right of access to the courts. It is most improper that such a person should be in any way criticised or embarrassed for availing of the right of appeal. This applies whether the appellant is a private citizen or the State itself. It would be outrageous if any litigant were hampered or even precluded from exercising his or her right of appeal. I make these observations because there have been public reports of comments tending to criticise or embarrass the appellants in these cases.

    Is O’Reilly’s case distinguishable?

  358. I now turn to the suggestion that O’Reilly’s case, on which considerable reliance is placed in the earlier portions of this judgment, may be distinguishable.

  359. Mr. O’Reilly was the lead plaintiff of a group of members of the Travelling Community living in caravans on unofficial sites in the city of Limerick, in conditions of poverty and deprivation. They did not wish to be housed by the Corporation but required sites with hard surfaces on which their caravans could be placed, toilet facilities, running water and irregular refuse collection. They sought a mandatory injunction requiring the defendant to provide them with adequate serviced halting sites, pursuant to an alleged duty under the Housing Act, 1966. They also claimed that the State should pay them damages for past sufferings which they had undergone. This claim was based on an allegation that the conditions in which they lived amounted to a breach of their constitutional rights.

  360. The portion of the decision which is relevant to this case is found at pages 192 to 195 of the report. In rejecting the claim, the judge proceeds on the basis that if the Court lacked jurisdiction to make a mandatory order for the remedy of the breach of constitutional duty, it equally lacked the jurisdiction to award damages for past breaches of constitutional rights. The case thus involved the jurisdiction to grant both reliefs.

  361. At page 193 of the report the learned judge pointed out that if the Court had jurisdiction “to adjudicate in a claim by travellers that the State had breached a duty to make adequate provision for their welfare” that jurisdiction would extend to similar claims by other deprived persons. He specifically instanced the fact that “It is well established that there are many young people whose lives are in danger of permanently blighted because the educational and welfare services available are not adequate for their needs”. Thus, he said if the Plaintiffs were correct “then the Court has jurisdiction to entertain a claim that the State was under a duty to provide services for .... deprived young persons which they reasonably require”. (sic)

  362. It thus appears that Costello J. specifically envisaged the claim made by the plaintiffs in O’Reilly as analogous to a claim by a deprived young person for whom adequate educational and welfare services were not available. This is a precise description of the claim of the applicants here.

  363. Having set out the nature of the claim, Costello J. went on to state the legal question raised by it as follows:-

    .... can the courts with constitutional propriety adjudicate on an allegation that the organs of Government responsible for the distribution of the nation’s wealth having properly exercised their powers? Or, would such an adjudication be a infringement by the courts of the role which the Constitution has conferred on them?

    O’Reilly's case, accordingly, is not merely incapable of being distinguished from the present one, but it is quite remarkably analogous. At page 192, the learned judge described the general nature of the case:-

    .... what is involved in Plaintiff’s case is an assertion that the State has a duty to provide them with the resources and services they lack and the adjudication the court is asked to make is that the State has failed in that duty and to award damages because of it.

  364. Only in the relief sought in the notice of motion of the 12th January, 2000 does the present case differ. The relief sought in that motion, a fortiorari, offends the principle expounded in O’Reilly.

  365. Costello J’s sympathy with the plight of the Plaintiffs in O’Reilly emerges very clearly from the judgment. He said:-

    .... I am sure that the concept of justice which is to be found in the Constitution embraces the concept that the nation’s wealth should be justly distributed (that is the concept of distributive justice) ....

    He went on to say, however,

    I am equally sure that a claim that this has not occurred should, to comply with the Constitution, be advanced in Leinster House rather than in the Four Courts.

    [emphasis added]

  366. This sentence is a memorable reminder that the obligation of respecting, defending and vindicating the personal rights of citizens is shared by all the branches of government and is not exclusive to any one of them. A recognition of the boundaries of the special remit of each in this regard is by no means a dilution of the commitment to those rights. The courts have over many years developed a sophisticated jurisprudence of fundamental rights, substantive and procedural, and have adapted it to rapidly changing conditions. It is by no means inconsistent with this unending process to recognise that the directly elected representatives of the people, and those to whom such representatives have committed executive power equally have their distinct obligations in this area.

    Conclusion

  367. I would allow the appeal and set aside the order of the High Court.


Representations

Paul O'Higgins S.C. and with him, Feichín McDonagh S.C. & John O'Donnell S.C. for the respondents.

Gerard Durcan S.C. and with him, John G. Hanlon, for the applicants.


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