Judgment delivered the 17th day of December, 2001 by Murray, J.
The Appeal
“The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequences would be the substitution of their pleasure for that of the legislative body. (The Federalist. No. 78; Hamilton). These words of one of the framers of the American constitution focus on one of the limits placed on the role of the judiciary in a constitutional framework which recognises a separation of powers between the different organs of government, executive, legislative and judicial. The concept of the separation of such powers, albeit in a variety of forms, has been a constant in the evolution of the modern democratic state. One of the principal grounds relied upon by the Appellants in this case is that the Order made by the learned High Court Judge in this case in favour of the Respondents exceeded, in its form and content, the bounds of the jurisdiction of the Courts under the Constitution.
In these proceedings the State has not contested the constitutional obligations which it is bound to fulfil with regard to children of minor age in need of special care and facilities according to the judgment of F.N. -v- The Minister for Education (see below). On the contrary it has adopted a national policy and programme specifically designed to meet those obligations and the implementation of which, as it happens, the learned High Court Court Judge in this case found would fulfil them. The issue is not the obligation but whether the Courts may incorporate a policy or programme of this nature in a mandatory Order.
At this point I would recall that in Sinnott -v- The Minister for Education, (Supreme Court, Unreported, 12 July, 2001) albeit in a slightly different context, I had occasion to observe concerning the appeal in that case that
“This issue is one of fundamental importance to the parties and has important constitutional ramifications for the organs of State, including the extent to which the powers of the Oireachtas should be limited in the choices it makes in the spending of the public purse in the interests of the community as a whole. In these circumstances it is clearly a constitutional issue which merits, if not requires, in the public interest a final determination and clarification on appeal to this Court as the Court of Final Instance”.
The right of appeal to this Court is a constitutional process consecrated in Article 34.4.3 of the Constitution. No citizen, public or State party should feel inhibited or obstructed from participating in that constitutional process where such a party considers it proper to do so. Where proceedings involve issues with important constitutional implications for the organs of State and the exercise of their prerogative powers, there may be constitutional considerations wider than the issues in the particular case in respect of which those exercising prerogative powers may properly feel bound in the public interest must be submitted for final constitutional determination by this Court. I re-emphasise what I said in the Sinnott Case because of public reports of observations suggesting that resort to this Court might in some sense be considered an improper use of constitutional access to it.
The other principal ground upon which the Appellants appeal concerns the locus standi of the Respondents. In this judgment I propose to address mainly the question of whether the learned High Court Judge was entitled to make the Order which he did.
The High Court Order
The Order made by the learned High Court Judge, made on the 25th February, 2000, in its operative part provides:
“... that the first and fifth named respondents in the first entitled proceedings do, (in relation to all the aforesaid entitled proceedings) take all steps necessary to facilitate the building and opening of secure and high support units and places as follows: -
“1 (a) Two six bedded high support units with ancillary educational facilities at Castleblaney in the County of Monaghan on or before the 31st December 2001
(b) A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2000.
(c) A five bed high support Unit at Elm House in the County of Limerick on or before the 31st October 2000.
(d) A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001.
(e) A five bed high support unity in the County of Clare on or before the 31st July 2001.
(f) A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001.
(g) An additional high support places in the Waterford region on or before the 31st May 2000.
(h) An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May 2000.
(i) An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2000.
(j) A five bed high support Unit for boys in the Southern Health Board region on or before the 31st August 2001.”
The import of the injunction was explained in the learned High Court Judge’s own judgment in the following terms: -
“The effect of this injunction is that the proposed developments must now be completed within the time scales specified in evidence in the latest hearing before me. If there is to be any change in this, it will have to be the subject of an application to the Court on the part of the Minister for a variation of the injunction. There will have to be objectively justifiable reasons present to warrant such a variation being granted.”
It was not really an issue in the appeal that the form and extent of the mandatory Order against two Ministers of Government is unique, apart from an order of a similar nature made by the learned High Court Judge in an earlier case which was not appealed to this Court.
The Judgment of the High Court
In the High Court proceedings the Plaintiff’s case was based on the claim that they were minors with very special needs which could not be provided by their parents or guardians and that there was a constitutional obligation on the State to provide special facilities, by way of secure and high support units and places, providing special care for minors with their special needs. The facts and circumstances of the case including the arguments of the parties and the history of these proceedings have been comprehensively set out in the judgments of the Chief Justice and Hardiman, J. which I gratefully adopt so that I need only refer to them where the particular context requires.
The point of departure for the learned trial judge was the judgment of Geoghegan, J. in F.N. -v- The Minister for Education [1995] I.R. 409. Geoghegan, J. summarised his decision as follows: -
“In summary I take the view that the State is under a constitutional obligation towards the Applicant to establish as soon as reasonably practicable, either by use of s.58, sub-s.4 of the Act of 1908 or otherwise, suitable arrangements of containment with treatment for the Applicant”.
That decision was not appealed by the State. Nor has any issue been argued in these proceedings calling in question the decision of Geoghegan, J. Murphy J. in his judgment has addressed substantive issues arising from the decision in that case. I reserve my position with regard to them until they should arise directly in other proceedings. The Order made by Geoghegan, J. was declaratory and did not involve any mandatory element.
As the learned High Court Judge pointed out, F.N.’s case was not an isolated one. Subsequently there was a succession of cases “dealing with children whose circumstances required that the State should provide suitable arrangements of containment with treatment.”
In those cases he notes that the Court made no formal declaration of the type made in F.N.’s case “because in such cases the State recognised that these children were entitled to rights of a type similar to those declared in favour of F.N.”. There was then no reason to believe that the proposals which had been advanced by the Minister for Health for the provision of residential places would not be implemented in a timious fashion.
Most, if not all, of those cases had come before the learned High Court Judge. More cases of a similar nature were to follow including those in which T.D. and D.B. were Plaintiffs. In the course of those proceedings details of certain plans which had been adopted by the Minister with a view to addressing the national needs of children requiring special care were placed before the Court. In one case the Minister proposals were implemented in full and in accordance with the forecast time scale. As regards other proposals, the learned trial Judge concluded that “Whilst I do not deny for a moment that substantial progress has been made, the plain fact is that none of the time scales which were given in evidence before this Court as recently as April, 1999 even December, 1999 will now be met.”
I think it is important to come to the genesis of these proceedings which is explained in the judgment of the High Court in the following terms:
“Following the hearing in December, 1999 I indicated that such were the culpable delays which had taken place that I was of the opinion that prima facie there was an entitlement to injunctive relief so as to compel the Minister to proceed to provide the places in respect of which I had been given evidence. At that stage there was mooted for the first time a suggestion on the part of the Minister that the then Applicant before the Court, namely T.D., would not be entitled to such an Order because he was not then in need of such a place. His case had to be adjourned generally because no place could be provided for him. In the light of this I suggested that the application for injunctive relief if it was sought to be pursued should be brought not merely in the name of T.D. but of all other Applicants who are in need of such facilities. Thus the present application is brought in the name of many of the Applicants who have figured before the Court on a regular basis”.
Following the learned trial judge’s initiative, this application was brought and it sought, as the learned trial judge put it, “... a series of injunctions directing the Minister to take all steps necessary and to do all things necessary to facilitate the building and opening of secure and high support units in places as follows ...” and there followed a list of building facilities, each to be completed by a specified date which correspond with the facilities referred to above and paragraph 1(a) to (j) in the Order of the High Court as ultimately made.
As regards the formulation of the injunctions sought in the present application, the learned High Court Judge observed
“I should make it clear that the number of units, their location and dates which are set forth in each of these proposed injunctive reliefs are those specified by the officials who gave evidence before me on behalf of the Minister. In other words the injunction seeks to do no more than to compel the Minister to adhere to the latest plans which he had been put before this Court within the time specified.”
What was before the learned High Court Judge prior to the initiation of the application in these proceedings was a programme devised by policy makers under the aegis of the Minister and adopted by him as a matter of policy with a view to addressing the constitutional obligation owed by the State to minors in need of special care facilities as declared in FN -v- The Minister for Education.
I consider it important to note that the trial judge appears to have been satisfied at that point, confirmed by the Order which he has made in this case, that the proposed programme was indeed sufficient to address those obligations.
The reason given by the learned High Court Judge for proceeding to consider and ultimately grant the mandatory Order arose from the fact that although he was assured of the good intentions and commitment of the relevant departments to provide the places in question within specified times these had to be extended for reasons of “culpable slippage”. In the absence of a formal undertaking from the Minister to the Court as to future compliance he reached certain conclusions arising from previous delay. These were that the department of Health and Children had not proceeded in a manner which, “could reasonably be expected of it so as to address the quite scandalous situation which has now obtained for years”. He expressed the conclusion that time had been lost “as a result of manifest inefficiency.” He cited the Castleblaney premises as the worst example. He concluded that reasonable progress has not been made. On the other hand he of course did acknowledge that substantial progress had been made. He also stated
“I wish to make it clear that I accept the bone fides of all the agencies and personnel who are attempting to deal with these problems. For the presence of bone fide good intentions counts for little if result are not being achieved which go to address the rights of these young people in a timious fashion”.
The fundamental issue which preoccupied the mind of the learned trial Judge was not the nature and extent of the programme which the Minister had adopted nor indeed the planned time scale for the establishment of the various centres but rather the risk of delay in its implementation referred to in his ‘Conclusions on Delay’. No issue as to the good faith of the Minister was involved. He also accepted that the time scales envisaged in the Minister’s programme might not be capable of being met for good reason, hence his express willingness to alter the terms of the Order from time to time on an application from the Minister.
On the question of policy and the separation of powers the learned High Court Judge concluded that
“the Order that I propose making will ensure that the Minister who has already decided on policy, lives up to his word and carries it into effect. I am neither dictating nor entering into questions of policy.”
He also concluded that in any case there is jurisdiction vested in the Court to intervene in what has been called policy in an appropriate case.
“Such an intervention would only occur in limited circumstances and where absolutely necessary in order for this Court to carry out its duties under the Constitution in securing, vindicating and enforcing constitutional rights”.
“If the Court were to conclude that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the States response was proportionate to the rights which fell to be protected, then normally no Order of this type should be made.”
However there were four factors which the learned High Court Judge stated he should take into account before deciding on whether or not to grant the mandatory injunctions.
“First, the High Court has already granted declaratory relief concerning the obligations of the State towards minors of the type involved here. Secondly, if that declaration is to be of any benefit to the minors in whose favour it was made, the necessary steps consequent upon it must be taken expeditiously. Otherwise the minors will achieve majority without any benefit being gained by them. Thirdly, the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of children and put them at risk of harm. It continues to do so. Fourthly, due regard must be had to the efforts made on the part of the State to address the difficulties to state”
In deciding that the Court had jurisdiction to make the Orders sought to vindicate the rights identified by Geoghegan, J. in F.N. -v- The Minister for Education the learned High Court Judge cited the following authorities: -
“Hamilton C.J., in D.G. -v- The Eastern Health Board [1997] 3IR 511 at 522 said: -
“If the Courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the Courts had the jurisdiction to do all things necessary to vindicate such rights. As stated by O’Dalaigh C.J. in the course of his judgment in the State (Quinn-v-Ryan [1965] IR at page 122 of the report:-
‘ It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodian of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts powers in this regard are as ample as the defence of the Constitution requires.’ ”
The learned High Court judge then went on to cite what he had stated in his judgement D.B. -v- The Minister for Justice [1999] 1 IR 29 at page 40: -
“These quotations seem to me to establish the proposition that in carrying out its constitutional functions of defending and vendicating personal rights, the Courts must have available to it any power necessary to do so in an effective way. If that were not the case the Court could not carry out the obligations imposed upon it to vindicate and defend such rights. This power exists regardless of the status of a Respondent. The fact that in the present case the principle respondent is the Minister for Health is no reason for believing that he is in some way immune from Orders of the Court in excess of mere declarations If such Orders are required to vindicate the personal rights of a citizen”. He then went on to quote what Finlay C.J. had said in Crotty -v- An Taoiseach [1987] I.R. 713 at 773 “With regard to the executive, the position would appear to be as follows: -
This court has on appeal from the High Court a right and duty to interfere with activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of such rights.
The right of intervention is expressly vested in the High Court and the Supreme Court by the provisions of Article 34, s.3, sub-s.1 and 34, s.4,sub-s.3 of the Constitution and impliedly arises from the form of judicial oath contained in Article 34, s.3, sub-s.1 of the Constitution.”
Decision
Separation of Powers in general
The concept of the “separation of powers” as applied to the exercise of executive legislative and judicial powers of government has been extant for some centuries, emerging in the Age of Enlightenment in Europe and embraced by the framers of the American constitution who regarded Montesquieu as “the oracle who is always consulted and cited on this subject...” (The Federalist No. 47, Madison). It was not always a concept associated with representative democracies as we now know them. It was Montesquieu’s fear that
“When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise less the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner” He expressed the concern: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the Judge would then be the legislator. Were it joined to the executive power, the Judge might behave with all the violence of an oppressor ...”.
(De l’Esprit des lois).
Whether the concept be considered as a distribution of the powers mentioned among different branches of government, executive legislative judicial, or a balancing of powers among those branches or a form of “checks and balances”, the separation of powers, in one form or another, is today regarded as an essential and inherent part of the modern liberal democracy founded on the rule of law. Although the basic objective is the same, to avoid an excessive concentration of these powers, or a combination of them, in one authority, there is no ‘pure’ or ‘perfect’ model of the separation of powers. It is found in different forms in different countries according to the differing structures of constitutional government such as in France, the United Kingdom, Germany, the United States and this country. Particular emphasis is placed on the democratic accountability of the executive and the legislature where the former may be accountable to the latter and both in any event are accountable to the electorate for the use of their powers. The Judicial branch of government is, perforce, not so accountable but is often described as the “least dangerous branch” having power over neither “purse nor sword”.
The Separation of Powers under the Constitution
The separation of powers in this country is embodied and governed by the Constitution. Accordingly, it is within its rubric that the question concerning the separation of powers as raised by the Appellants falls to be considered.
Article 6 of the Constitution provides as follows:-
“1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State, and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution”.
As this Court has on many occasions had occasion to state, those organs of State are the Government, the Oireachtas and the Courts established by the Constitution. Article 28.2 provides that the executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government which, pursuant to Article 28.4.1 is answerable to the Dail. The Oireachtas, as the national parliament, consists of the President and the two house, Dáil Eireann and the Senate (Article 15). Article 15.2.1. provides that
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas; no other legislative authority has power to make laws for the State.”
In Buckley and Others (Sinn Féin) -v- Attorney General and Another [1950] IR 67 at 81 the former Supreme Court held
“Article 6 provides that all powers of government, legislative, executive and judicial, derive, under God, from the people, and it further provides that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers. Articles 15 to 27, inclusive, deal with the exercise through the Oireachtas, of the legislative powers of the State, and Arts.34 to 37, inclusive, provide for the establishment of Courts and the appointment of Judges to exercise the judicial powers of the State. At the commencement of the latter set of Articles it is provided, by Art. 34, that justice shall be administered in Courts established by Judges appointed in the manner provided by the Constitution. This seems to us to contemplate and require that justice shall be administered in such manner and not otherwise.” (Emphasis added).
As I have already indicated one of the fundamental objects of the concept of the separation of powers is that no one of the three organs of government is paramount in the exercise of State power. As Walsh, J. stated in Murphy -v- Corporation of Dublin [1972] IR 215, 234 “The division of powers does not give paramountcy in all circumstances to any one of the organs exercising the powers of the government over the other.”
It follows that in order to avoid the paramountcy of one organ of State, each must respect the powers and functions of the other organs of State as conferred by the Constitution. Each must exercise its powers within the competence which it is given by that Constitution. The Oireachtas cannot exercise a judicial function attributed to the Courts no more than the Courts may exercise a function attributed to the Executive or the Oireachtas.
There is a fundamental distinction between the Courts determining whether policies or measures of the Executive or the Oireachtas are compatible with their obligations under the law or the Constitution and the Courts taking command of such matters so as to in substance actually exercise a core constitutional function of one of those organs of State.
The Role of the Courts
Thus it is not in issue that the Superior Courts, in determining cases brought before them, may make Orders affecting, restricting or setting aside actions of the Executive which are not in accordance with law or the Constitution or make declaratory orders as to its obligations. The learned High Court Judge correctly cited the law in this regard as stated by Finlay, C.J. in Crotty -v- An Taoiseach
“with regard to the executive, the position would appear to be as follows: - This Court has on appeal from the High Court a right and duty to interfere with the activities of the Executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or the activities of the executive threaten an invasion of such rights”.
Equally these Courts may set aside an Act of the Oireachtas on the grounds that it is repugnant to the Constitution.
In Landers -v- Attorney General I.L.T.R. [1976] 1 Finlay, J. (as he then was) in referring to the constitutional discretion left to the State to balance the priority to be accorded to one right as against another in the interests of the common good stated
“The Court must as I construe its obligations under the Constitution be as scrupulous in avoiding such a choosing as it must be energetic in preserving a clear and threatened constitutional right. In the same way I do not consider that it is any part of the function of the Court to adjudicate as to what is the best method by which the State can carry out one of its constitutional duties”. (emphasis added).
The Courts have jurisdiction to intervene to prevent an invasion of rights or determine constitutional obligations. The views expressed by Finlay, J. and reflected in other judicial pronouncements which I cite, mean, as I understand them, that it is the Executive not the Courts to decide and implement the policies calculated to carry out its constitutional obligations. Moreover, Finlay J clearly saw no difficulty in the amplitude of the powers of the Court to protect rights while at the same time refraining from trespassing on the exercise of their functions by the organs of State.
Such jurisdiction can only be exercised in deciding on justiciable matters in issue between parties litigating those issues before the Court (other than an Article 26 reference). The Courts have no general supervisory or investigatory functions. De Tocqueville summed up the role of the Courts pithily when he wrote,
“In all nations the judge’s primary function is to act as an arbitrator. Rights must be contested to warrant the intervention of the Court. An action must be brought before a Judge can decide it.” The “... judicial power... can act only when called upon, or in legal language, when it is seised of the matter”. (Democracy in America, Harper, Eng.ed.).
If a judge cannot choose the cases which he might wish to come before him neither does he have the luxury of deciding cases as he might wish but must do so as the law or the Constitution dictates. In principle, the judge decides what the rights of the parties are and their legal or constitutional obligations in respect of them. It is the Legislature or the Executive who may adopt measures or policies simply on the basis they consider them the best and most desireable means of achieving specified objectives or fulfilling obligations. In O’Reilly -v- Limerick Corporation [1989] I.L.R.M. 181 at 195, Costello J., addressing a question of supervision by the Courts of the spending of public monies for policy objectives in the furtherance of the common good, stated
“The Court’s constitutional function is to administer justice but I do not think by exercising the suggested supervisory role it could be said that a Court was administering justice as contemplated by the Constitution ... In exercising this function the Court would not be administering justice as it does when determining an issue in relation to commutative justice but it would be engaged in an entirely different exercise, namely an adjudication of the fairness or otherwise of the manner in which other organs of state had administered public resources.” Costello, J. went on to add “... the manner in which justice is administered in the Courts on a case by case basis, makes them a wholly inappropriate institution for the fulfilment of the suggested role.”
In my view the Courts are equally inappropriate institutions to make an Order directing how national policy should be implemented rather than addressing issues on a case by case basis.
Adopting a policy or a programme and deciding to implement it is a core function of the executive. It is not for the courts to decide policy or to implement it. It may determine whether such policy or actions to implement such policy are compatible with the law or the Constitution or fulfil obligations. That is not deciding policy.
Judicial Review in a democracy
Thus the powers of the Court include judicial review of acts of the Executive and the Legislature. It is a feature common to many democracies, particularly with a written constitution. Judicial review permits the Court to set aside executive actions or legislative measures which offend against the law or the Constitution. Judicial ‘review’ does not in such democracies give the Courts jurisdiction to exercise rather than review executive or legislative functions. Judicial review permits the Courts to place limits on the exercise of Executive or legislative power not to exercise it themselves. It deals with the limits of policy, not its substance. That is why judicial review by the Courts, which are not answerable to any constituency other than the law and the Constitution, is democratic. Of course one may hypothesis as to all kinds of circumstances , exceptional or otherwise, in which judicial review of the Executive or the Oireachtas may arise. But, to paraphrase Edmund Burke, circumstances are infinite, or infinitely combined, are variable and transient, and one cannot loose sight of the fundamental principles according to which the power of judicial review is exercised.
As Budd, J. observed in Boland -v- An Taoiseach [1974] I.R. 338 at 366
“It is for the Executive to formulate matters of policy. The judiciary has its own particular ambit of functions under the Constitution. Mainly, it deals with justiciable controversies between citizen and citizen, or the citizen and the State, and matters pertaining thereto. Such matters have nothing to do with matters of State policy.”
Damages, even exemplary damages, may be awarded in appropriate cases to individuals who have suffered loss or damage as a result of the unlawful or unconstitutional activities of the State or one of its agencies.
The High Court Order - beyond the bounds
Prior to the initiation of this particular case the relevant Minister had outlined to the Court his national the policy and a programme of action based on that policy. The learned High Court judge held that he was not making policy but rather simply taking the policy formulated by Executive and incorporating it in his Order. In my view the learned High Court Judge was incorrect in this analysis.
The policy which had been outlined by the Minister involves the construction or provision of certain support or care units in different parts of the country and recruiting staff for their opening and the provision of care facilities. It is a programme which involves, generally speaking, the design of premises, engagement of contractors, applications for planning permission, identification of the number and kind of specialised staff and their recruitment just to mention some of its elements. A policy programme of such a nature, whether it is undertaken by the private sector or the State sector, will inevitably involve discretionary decisions on a day-to-day basis with a view to satisfactory implementation to meet, as far as practicable, the objectives set. These discretionary decisions will be taken according as unforeseen obstacles are encountered, administrative difficulties arise, reservations of the planning authorities are considered, planning objections or appeals from third parties are met or indeed as the adaptation of policy is required to make it more efficient or effective according to further insights as the strategy develops in the course of its implementation. Such Executive policy may be determined or altered by Dáil Eireann
The learned High Court Judge expressly acknowledged that delays in the programme may be justifiably required subject to his approval. Although the learned High Court Judge did not expressly say so it may be inferred that if the Minister were to apply to him also to permit a change of policy in the future he would so if there were “objectively justifiable” reasons for doing so. In his judgment in D.B. the learned High Court Judge had expressly provided for future applications for a change of policy on such grounds and presumably he did not intend to exclude such a future application in this case. I would add in passing that since the very nature of policy is that it is frequently formed on the basis of subjective reasons it is not at all clear what kind of objective criteria the High Court would apply when supervising what changes, if any, should be permitted in the policy enshrined in its Order.
It seems to me that in incorporating the policy programme as part of a High Court Order the policy is taken out of the hands of the Executive which is left with no discretionary powers of its own. It becomes the policy and programme of the Court which cannot be varied or any decision taken which might involve delay (or an adjustment of policy) without the permission and Order of the Court. A judicial imperative is substituted for executive policy. The Judge becomes the final decision maker. In short he is administrator of that discrete policy. That is not a judicial function within the ambit of the Constitution.
Another inevitable consequence of the High Court Order would be to undermine the answerability of the Executive to Dáil Eireann and thus impinge on core constitutional functions of both those organs of State. Article 28.4.1. provides “The Government shall be responsible to Dáil Eireann”.
As Budd, J. also said in Boland -v- An Taoiseach (cited above)
“The Court could clearly not state that any particular policy ought not to be pursued.
The Constitution goes further in indicating how far the polices involved in Government decisions as to policy such as this are removed from the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them.”
A Minister who, in the course of such a review, subsequent to the making of the kind of Order as has been made in this case, was called upon to answer in Dáil Eireann on the grounds that the scope of his policy should be reduced or expanded would be bound to respond that his hands were tied by an Order of the High Court and that he was bound to pursue that policy by Order of the High Court. This would be a negation of his answerability to Dáil Eireann. At best it might be said that an application by the Minister to the High Court to alter the policy or its time scale on the basis of a decision of Dáil Eireann might constitute “objectively justifiable” grounds for amending the High Court Order. But this would reduce a Minister, a member of the Executive, to an intermediary between the Dáil Eireann and the High Court and even then the decision of the Dáil Eireann would be subject to approval by the High Court.
This would introduce a degree of judicial hegemony in the domaine of policy formulation and implementation so as to disturb the balance of powers between the three great organs of State, the Executive, the Oireachtas and the Judiciary.
It would involve the High Court in exercising its “will” rather than its “judgment”on justiciable issues between the parties. (In this regard see also the conclusion of Hardiman, J. on the locus standi of the parties in this application to seek the Order granted).
It would offend against the underlying concept in the statement of Walsh, J. in Murphy -v- The Corporation of Dublin (cited above) that “the division of powers do not give paramountcy in all circumstances to any one of the organs” of State. The proposition of the learned High Court Judge that “the Court has to attempt to fill the vacuum which exists by reason of the failure of the legislature and executive” would, it seems to me, arrogate to the Courts a paramountcy in circumstances not envisaged in the separation of powers under the Constitution and undermine core functions of the executive and the legislature in a representative democracy where their primary answerability for policy matters is to the people. In my view the Order goes beyond the boundaries envisaged in the dictum of this Court in Buckley and Others (Sinn Féin) -v- Attorney General and Another (cited above) that justice shall be administered in the manner provided by the Constitution and “in such a manner and not otherwise”, and outside the “particular ambit of functions under the Constitution” accorded to the judiciary as mentioned by Budd, J. in the citation above.
The jurisdiction of the Courts as envisaged by the Constitution is sufficiently ample to defend and vindicate rights guaranteed by the Constitution as the experience of many decades has demonstrated. Judicial statements as to the amplitude of the powers of the Court in this regard in such cases as Quinn -v- Ryan and D.G -v- The Eastern Health Board can only be interpreted and applied within the ambit of the role conferred by the Constitution on the Courts with due respect to the role and function of the executive and the legislature. Any other approach would introduce incoherence into the concept of the separation of powers as delineated by the Constitution. In my view the grounds relied upon by the learned High Court Judge did not entitle him to make the mandatory Order.
Other Forms of Mandatory Order:
In coming to the conclusions above I do not wish to determine that the Courts may never make a mandatory Order in any form as opposed to a declaratory or other Order, against an organ of State.
In so far as McKenna-v-An Taoiseach (No. 2) [1995] 2 I.R.1, Crotty -v- An Taoiseach and District Judge McMenamin-v-Ireland [1996] 3. I.R. 100 might be said to be authority for the making of some form of mandatory Order where there is “a clear disregard” by the State of its constitutional obligations, it must be borne in mind that in none of those cases was a mandatory Order granted. I have already made the distinction between “interfering” in the actions of other organs of State in order to ensure compliance with the Constitution and taking over their core functions so that they are exercised by the Courts. For example a mandatory Order directing the Executive fulfil a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory Order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its constitutional obligations in an exemplary fashion. In my view the phrase “clear disregard” can only be understood to mean a conscious and deliberate decision by the organ of State to act in breach of its constitutional obligation to other parties accompanied by bad faith or recklessness. A Court would also have to be satisfied that the absence of good faith or the reckless disregard of rights would impinge on the observance by the State party concerned of any declaratory Order made by the Court.
I would recall in passing that in this case there is no question of bad faith on the part of the Minister and indeed the learned High Court Judge expressly found that all those agencies which acted on behalf of the Minister were acting in good faith. I do not consider that “culpable slippage” of an administrative nature or “bureaucratic haggling”, which may include serious legal questions of departmental competencies, or inefficiency may of themselves alone constitute grounds for a judicial mandatory Order against the State. There may be other remedies if persons suffer damage as a result of such administrative deficiencies, but otherwise the Executive is, in principle, accountable to Dáil Eireann for them. I do not consider that the elements necessary for any form of mandatory Order are present in this case.
I do not consider it necessary to develop this matter further except to emphasise that should the occasion arise for the Courts to consider making a mandatory against an organ of State in lieu of a declaratory Order, such an Order could not be such as would involve the Courts in actually exercising the functions constitutionally reserved to those organs of States.
Locus Standi
Much of what I have said in dealing with the principal issue concerning the separation of powers has implications for the local standi of the Plaintiffs in this case and in particular whether they have sufficient interest and standing to seek declarations as to national policy rather than such Orders and Relief as they may be entitled to having regard to their individual situations. However, I have had advantage of reading the judgement of Hardiman, J. and I agree with his reason for considering that the Applicants individually or as a group have not shown sufficient interest to give them local standi in these proceedings to seek the mandatory Order in question.
Having regard to the foregoing I would allow the appeal and set aside the mandatory Order of the High Court.