Gaeilge

Title:	D -v- Minister for Education & ors
Neutral Citation:	[2001] IESC 101
Supreme Court Record Number:	203/00
High Court Record Number:	1998 No. 487 JR & ors
Date of Delivery:	12/17/2001
Court:	Supreme Court
Composition of Court:	Keane C.J., Denham J., Murphy J., Murray J., Hardiman J.
Judgment by:	Hardiman J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Keane C.J. Link Denham J. Link Murphy J. Link Murray J. Link Hardiman J. Link

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Keane C.J
Denham J.
Murphy J.
Murray J.
Hardiman J.

Between:
JUDICIAL REVIEW NO. 461 JR/1997

Between:
JUDICIAL REVIEW NO. 93JR/1995

Between:
JUDICIAL REVIEW NO. 255JR/1997

Between:
JUDICIAL REVIEW NO. 487JR/1998

Between:
JUDICIAL REVIEW NO. 139JR/1995

Between:
JUDICIAL REVIEW NO. 396JR/1998

Between:
JUDICIAL REVIEW NO. 452JR/1999

Between:
JUDICIAL REVIEW NO. 269JR/1997

Between:
JUDICIAL REVIEW NO. 133JR/1997

JUDGMENT of Hardiman J. delivered the 17th day of December, 2001.
1. 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?

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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”.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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”.

15. 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”.

16. 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.

17. 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”.

18. 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.

19. 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

20. 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.

21. 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 non cooperation 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.

22. 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 and Ors. [1995] I 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.

23. 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.

24. 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.

25. 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 ”.

26. 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

27. 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”.

28. 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.

29. 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.

30. 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”.

31. 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.

32. 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”.

33. 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”.

34. 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.

35. 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”.

36. 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”.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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”.

42. 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.

43. 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?”

44. 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”.

45. 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”.

46. 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)?”

47. 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”.

48. 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”.

49. 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”.

50. 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 mean that the departmental word will be its bond”.

51. 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”.

52. 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”.

53. 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”.

54. 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

55. 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.

56. 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.

Friday the 25th day of February 2000

BEFORE MR JUSTICE KELLY

BETWEEN

(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 h 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

57. 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.

58. 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?

59. 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?

60. 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.

61. 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.

62. 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”.

63. 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.

64. 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.

65. 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.

66. 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.

67. 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.

68. 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.

69. 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.

70. 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 and Ors. (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.

71. 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 and Ors., 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 and Ors. 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)

72. 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.

73. 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

74. 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”.

75. 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.

76. 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.

77. 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”.

78. 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”.

79. 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”.

80. 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”.

81. Article 28.4.1 provides:-

“The Government shall responsible to Dáil Eireann”.

82. 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 Buckley and Ors. 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.

83. 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”.

84. 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.

85. 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”.

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

87. 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.

88. 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”.

89. 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”.

90. 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

91. 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.

92. 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

93. 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”.

94. 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.

95. 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”.

96. 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”.

97. 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”.

98. 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”.

99. 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”.

100. 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.

101. 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”.

102. 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.

103. 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.

104. 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.

105. 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?

106. 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.

107. 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.

108. 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”.

109. 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”.

110. 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”.

111. 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.

112. 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.”

113. 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 and Ors. [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 and Ors. 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”.

114. 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.

115. 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”.

116. 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.

117. 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.

118. 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”.

119. 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.

120. 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”.

121. 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.

122. 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”.

123. 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.

124. 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”.

125. 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”.

126. 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

127. 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.

128. 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?

129. 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.

130. 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.

131. 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.

132. 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)

133. 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.

134. 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?”

135. 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”.

136. 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.

137. 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)”.

138. 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).

139. 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.

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