IESC 101 · Supreme Court

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

No. 203/00

BETWEEN/

JUDICIAL REVIEW NO. 461JR/1997

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

APPLICANT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL, THE EASTERN HEALTH BOARD AND BY ORDER THE

MINISTER FOR HEALTH AND CHILDREN

RESPONDENTS/APPELLANTS

BETWEEN/

JUDICIAL REVIEW NO. 93JR/1995

D.B. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND S.B.)

APPLICANT

AND

THE MINISTER FOR JUSTICE, THE MINISTER FOR HEALTH, THE MINISTER FOR EDUCATION, IRELAND, THE ATTORNEY GENERAL

AND THE EASTERN HEALTH BOARD

RESPONDENTS/APPELLANTS

BETWEEN/

JUDICIAL REVIEW NO. 255JR/1997

M.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M.B.)

APPLICANT

AND

THE MINISTER FOR EDUCATION, IRELAND, THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD

RESPONDENTS/APPELLANTS

BETWEEN/

JUDICIAL REVIEW NO. 487JR/1998

G.D. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND K.O’D.)

APPLICANT

AND

THE EASTERN HEALTH BOARD, THE MINISTER FOR EDUCATION AND SCIENCE, THE MINISTER FOR HEALTH AND CHILDREN,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

BETWEEN/

JUDICIAL REVIEW NO. 139JR/1995

G.D. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND A.D.)

APPLICANT

AND

THE EASTERN HEALTH BOARD, THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

BETWEEN/

JUDICIAL REVIEW NO. 396JR/1998

P.H. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND R.F.)

APPLICANT

AND

THE EASTERN HEALTH BOARD, THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

BETWEEN/

JUDICIAL REVIEW NO. 452JR/1999

B.J. (A MINOR SUING BY HIS GUARDIAN AD LITEM R.F.)

APPLICANT

AND

THE EASTERN HEALTH BOARD, THE MINISTER FOR EDUCATION AND SCIENCE, THE MINISTER FOR HEALTH AND CHILDREN,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

BETWEEN/

JUDICIAL REVIEW NO. 269JR/1997

T.L. (A MINOR SUING BY HER GUARDIAN AD LITEM C.O’D.)

APPLICANT

AND

THE EASTERN HEALTH BOARD, THE MINISTER FOR EDUCATION, THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

BETWEEN/

JUDICIAL REVIEW NO. 133JR/1997

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

APPLICANT

AND

THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND, THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD

RESPONDENTS/APPELLANTS

Judgment of Mrs. Justice Denham delivered on the 17th day of December, 2001.

1. Issues

There are two matters arising for decision in this appeal. First, whether the applicants have the standing to seek the orders in

the terms they were invited to by Kelly J. in 1999. Secondly, whether the court had jurisdiction to make the mandatory order it

did against two Ministers of the executive.

2. The High Court Judgment

2.1 Plans of the respondents.

Kelly J. was in charge of the High Court judicial review list before which these applicants and many others came seeking places

for children in secure high support units. However, there was a lack of places for such children in special residential care.

Witnesses on behalf of the respondents willingly described the plans of the executive for the future. Of these plans Kelly J.

stated at p. 12 of his judgment, given on the 25th February, 2000:

“THE PLANS

In October, 1998 the Department of Health and Children established what was called a senior managers’ resource group.

That group was representative of all eight health boards in the State. It was set up to review the need for special

residential care provision nationally and to make recommendations on the provision of an integrated service. Such an

approach makes perfect sense and seeks to deal with the problem on a national basis. I was apprised of the setting up of

this group at a hearing which took place in December, 1998 and January, 1999 in the case of the first named applicant. In

the light of the information which I was given on those occasions I directed a further hearing to review progress to take

place in April, 1999.

At the April, 1999 hearing I was told that the senior managers’ resource group had met on three occasions since the

preceding hearing. I was told that that group was recommending the provision of an additional 40 high support places in

the seven health boards outside the Eastern Health Board area (48 places had already been identified as being required in

the Eastern Health Board area and were to be provided in the Lucan and Portrane facilities, the subject of the earlier

injunction). I was also told that each health board had undertaken a review of the need for further high support

residential places identifying the necessity to provide an additional 40 places for children. These 40 places were broken

down by region. 10 were to be provided in the Northern region and 30 in the Southern region. They were to be distributed

between the various health boards in each of those regions. I was told that the estimated time frame for completing the

development of all 40 places, subject to suitable premises being identified and the availability of staff, was 24 months. In

other words by April, 2001 all 40 places ought to be available.

In addition, I was given evidence that it was planned to have an additional 18 places which would come on stream in

1999. Eight of these were to be provided in the Southern Health Board at a premises known as Bessboro and ten were to

be provided in the Mid Western Health board at an existing facility. These eighteen places were to be in operation by the

end of 1999.

I was encouraged by the evidence which I was given in April 1999. It appeared to demonstrate concerted action on the

part of the State which would bring about a solution to the problem. I was impressed by the testimony given to me by the

witness from the Department of Health and Children. I accepted that evidence, both as to the efforts which were being

made and the time scale within which it was expected these facilities would be provided. I took the view that whilst the

Court continues to be confronted on an almost daily basis with trying to find

accommodation for problem children, the time scales which were indicated to me were in all the circumstances

reasonable. It was suggested to the Court that in these circumstances a lengthy adjournment should be granted. I

acceded to that application. I was not anxious to divert public resources into Court hearings when they could be better

employed in providing the facilities for the children in need. I therefore adjourned the matter for eight months and

indicated that I would conduct a further review in December, 1999. No objection was raised to this course by any of the

parties to the litigation.

In granting this lengthy adjournment I hoped that the review hearing scheduled for December, 1999 would be short

because the progress indicated in April of that year would be maintained. This hope was unfortunately, misplaced.”

2.2 Culpable delay of respondents.

The learned High Court judge found that there had been culpable delay in implementing the plans. The passage of time was

specifically relevant to the position of the first applicant. Kelly J. described at p. 18 how the application for an injunction took

place:

“Following the hearing in December, 1999 I indicated that such were the culpable delays which had taken place that I was

of opinion that prima facie there was an entitlement to injunctive relief so as to compel the Minister to proceed to provide

the places in respect of which I had been given evidence. At that stage there was mooted for the first time a suggestion

on the part of the Minister that the then applicant before the Court, namely T.D. would not be entitled to such an order

because he was not then in need of such a place. His case has had to be adjourned generally because no place could be

provided for him. In the light of this I suggested that the application for injunctive relief if it was sought to be pursued

should be brought not merely in the name of T.D. but of all the other applicants who are in need of such facilities. Thus

the present application is brought in the name of many of the applicants who have figured before this Court on a regular

basis.”

2.3 Details of injunctions sought are those of the respondents policy

The application to the High Court was for an injunction against the named parties to adhere to the plans which the executive

itself had made and which had previously been described before the court by witnesses on behalf of the respondents. Kelly J.

held:

“The present application seeks a series of injunctions directing the Minister to take all steps necessary and to do all

things necessary to facilitate the building and opening of secure and high support units in places as follows:

(a) Two six bedded high support units, with ancillary educational and recreational facilities, at Castleblayney in the

County of Monaghan on or before the 31st January, 2002.

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

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

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

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

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

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

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

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

2000.

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

I should make it clear that the number of units, their location and the dates which are set forth in each of these proposed

injunctive reliefs are those specified by the officials who gave evidence before me on behalf of the Minister. In other

words the injunction seeks to do no more than to compel the Minister to adhere to the latest plans which have been put

before this Court within the time specified.”

2.4 Piecemeal approach

The learned High Court judge considered the alternative option, the piecemeal approach, the taking separately of each of the

cases in the list before him and the making of orders in each case. He stated:

“If an injunction is to be granted in each individual case then the Minister may be faced at any one time with a series of

orders which will have to be complied with in the short term and which may seriously put out of kilter his overall plans

created on a State wide basis. Although the reality of that difficulty was accepted nonetheless the Minister persisted to

make this argument. It seems to me to be an argument which if successful will create more difficulties for the Minister

than he already has. Nonetheless I must consider it on its merits and I now proceed to do so.”

2.5 Evidence

The learned High Court judge considered the evidence which had been given before him. He referred to that of Mr. Ruairí Ó’Cillín,

a divisional inspector of the Department of Education and Science, whose evidence included the fact that the applicants would

be expected to avail of the facilities in respect of which injunctions were being sought; that the absence of the facilities would

impact on some of them; that in the previous year five children had been detained in Oberstown Detention Centre on foot of

court orders because there was not a suitable alternative high support or secure unit placement available for them, that the

children had been placed in a criminal facility because there was nowhere else to put them; that the problem had been ongoing

for years, since F.N. v. The Minister for Education [1995] 1 I.R. 409; that there was evidence that high support or secure unit

places are needed, that in some cases the children have suffered some damage as a result of the absence of the appropriate

facility; that in the majority of cases the children’s chances would be better if the appropriate facility were available even given

the difficulties of dealing with children who have problems in early, mid and late adolescence.

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

applicants Mr. Ó’Cillín was asked:

152 Q. If (sic) relation to the various persons mentioned, how many of them would be expected to avail of any of the

facilities in respect of which injunctions are sought before the court today?

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

153 Q. In practical terms, is the absence of the facilities sought before the court today something which impacts on the

way in which they can be dealt with now?

A. For some of them it would, yes.

Mr. Ó’Cillín gave evidence in relation to the position of each of the applicants. He agreed that some children had been placed in

a criminal facility institution because there was nowhere else to put them, which situation had been ongoing since the F.N.

case.

2.6 High court decision on standing of applicants.

Having considered the evidence Kelly J. held:

“In light of this evidence it is difficult to see how as a matter of fact it can be said that these applicants do not have an

entitlement to apply for the orders sought . . . In these proceedings, the court has already found that the State has a

constitutional obligation and I am concerned with the enforcement of it. Not merely that but I am dealing with applicants

who quite apart from having disabilities which place them at risk also have a legal disability in that they cannot assert

their own constitutional rights, this has to be done on their behalf either by a next friend or a guardian ad litem. Normally,

a parent would exercise such a right but in many cases involving children like this the parents are either unwilling or

unable to do so. The rights could of course be asserted by the Attorney General but he is always named as a respondent

in these type of proceedings because the allegation is that the State itself which is represented by him is to be found

wanting.

I am of opinion that these applicants’ interests have been adversely affected, or stand in real or imminent danger of being

adversely affected by the failure to provide the appropriate facilities.

By no stretch of the imagination could these applicants be considered to fall within the description of those whom the

practice rule of locus standi is designed to exclude namely, the crank, the obstructionist, the meddlesome, the perverse,

or the officious man of straw (per Henchy J. in Cahill v. Sutton [1980] I.R. 269 at 284).

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

contrary.”

3. The High Court Order

Thus, on the 25th day of February, 2000 the High Court ordered that the first and fifth named respondents in the first entitled

proceedings do, in relation to all the entitled proceedings, take all steps necessary to facilitate the building and opening of

secure and high support units and places of a specified nature, number of beds and locations by specified dates, being:

“(a) Two six bedded high support units with ancillary educational facilities at Castleblayney in the County of Monaghan on

or before the 31st December 2001.

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

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

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

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

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

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

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

2000.

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

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

Liberty was granted to the first and fifth named respondents (of the first entitled proceedings) on 72 hours notice to seek

variation in the terms of the injunction relief granted.

4. Appeal

4.1 Against the order and judgment of the High Court the Minister for Education, Ireland, the Attorney General and the Minister

for Health and Children, hereinafter referred to as the respondents, have appealed. The Eastern Health Board did not file written

submissions and took no active role in the appeal, but had counsel in court on a watching brief.

4.2 There were two principal grounds of appeal. The first related to the separation of powers and to the form and extent to

which courts may make a mandatory order. The respondents submitted that the court did not have jurisdiction to make the

order, that the order was in breach of the separation of powers. Secondly, the respondents queried whether on the evidence

the applicants, who it was accepted have locus standi to seek orders relating to their own cases, whether they have locus

standi to seek orders in the terms they were invited to by Kelly J. The respondents submitted that the court orders go beyond

the arena in which the applicants have locus standi. The respondents submitted that the applicants had no locus standi to seek

the general order granted whereby particular buildings were directed to be built in particular places within particular time scales.

Further, they submitted that there was no evidence as to the particular needs of each applicant and how they should be met in

the future. On behalf of the respondents it was also submitted that if the State had failed the applicants in the past any such

failure could be addressed by an award of damages; that the court order does not address the individual needs of the

applicants into the future; rather the order will benefit different applicants of the future. In essence the respondents submitted

that because the specific orders made do not on the evidence address the individual needs of all or any of the individual

applicants, the applicants do not have sufficient locus standi to entitle the trial judge to make the orders he made.

5. Decision

(A) The standing of the applicants.

(B) The separation of powers.

5.(A) The standing of the applicants

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

5.(A)(i) Individual Remedy

Each of the applicants has standing to bring his or her individual case before the court. Each has locus standi to bring an

individual case and seek specific orders for his or her own case. The court has jurisdiction to make a decision in each case and

where appropriate to grant an individual remedy, in other words to take such a piecemeal approach. The learned High Court

judge pointed out that a piecemeal approach, an individual order for each of the many applicants listed in the special list of

such cases, would be expensive and would pose problems for the respondent Ministers, as money would have to be diverted to

the litigation, perhaps to the detriment of the development of high support places.

5.(A)(ii) The F.N. Case

There is a constitutional obligation on the respondents to vindicate the constitutional rights of each of the children, the

applicants. The relevant constitutional principles have been established and were not disputed on this appeal. F.N. v. The

Minister for Education [1995] 1 I.R. 409 held that a child has a constitutional right to be fed and to live, to be reared and

educated and to have the opportunity of working and realising his or her full potential and dignity as a human being and that

those rights must be protected and vindicated by the State. In the situation of a child with very special needs which could not

be provided by his or her parents or guardian then there is a constitutional obligation on the State under Article 42, s.5 to make

reasonable efforts to cater for those needs in order to vindicate the constitutional rights of the child. Secure accommodation,

services and such arrangements as were necessary to meet the requirements of F.N. were held to be not so impractical or so

prohibitively expensive as to come within any notional limitation of the State’s constitutional obligations. It is on that case, that

law, that these cases proceeded. The decision in F.N. was not put in issue.

On the premise of the F.N. case, on the 4th December, 1998 in T.D. v. The Minister for Education, the first case listed herein,

Kelly J. directed that the court should be informed of the progress of the work being done by the State to meet their

constitutional obligation. The respondents provided the information in a report to the High Court. The matter was adjourned for

a lengthy period to enable the work proceed. Further reports updated the information to the High Court in April, 1999 and

December, 1999. In December, 1999 there was oral evidence. It was this evidence which gave rise to Kelly J. raising the matter

of an application for injunctive relief.

5.(A)(iii) Rights Affected

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

the action or lack of action of the respondents.

5.(A)(iv) Delay

In this case the parties were in court over a long period of time. Steps were taken. Information was given. Plans were

explained. Initially the court adjourned the matters for a lengthy period - not even declaratory orders were sought by counsel

for the applicants as all parties sought a solution. However, there was considerable delay which the learned trial judge held was

culpable. There was evidence before the court upon which the learned trial judge could reasonably arrive at such a conclusion.

5.(A)(v) Children

The applicants do not have access to the courts themselves, the cases have been taken on their behalf by their mother, father

or guardian ad litem. The court has a duty to ensure that children’s rights of access are not impeded and that their

constitutional rights are protected.

5.(A)(vi) The exceptional circumstances.

5.(A)(vi)(a) The circumstances of this case were exceptional. After the F.N. case there was a growing list of cases of children

seeking secure residential care, with high support. In time they came to be listed before Kelly J. mainly. Over time the burden of

the interim arrangements became greater as the learned High Court judge was asked to consider arrangements for children in

the list before him. It came about that Kelly J. was told by the State that certain things were being done. All parties accepted

that the High Court should be told of the plans for the future of high security centres for children. It appeared that proper

arrangements were being planned and would be available later. The court made interim orders having received this information.

5.(A)(vi)(b) The list of cases was not brought on for hearing. Counsel for the applicants informed the court that there were 40

to 50 cases in the list and that they were not brought on for full hearing in the context of what the High Court had been told.

Consequently, as a result of the plans and general information given to the High Court by the respondents, the applicants’

cases were adjourned from time to time and other interim orders made insofar as it was possible.

5.(A)(vi)(c) In the circumstances counsel for the applicants, and others, did not press their case on for hearing. The individual

cases were not fought out to obtain a specific declaration of breach of constitutional obligation by the State in each case. The

circumstances were such that the reasonable inference was that the applicants were children for whom the State was not

meeting its constitutional obligation but that the respondents were in the process of putting the necessary facilities in place,

the respondents had accepted responsibility and planned, and were about to effect, a national arrangement. Pending that

arrangement being put in place the cases were adjourned and interim solutions sought. This reasonable and sensible approach

was adopted by all parties to the cases listed before Kelly J.

5.(A)(vi)(d) However, there was considerable delay with the plans. The cases were still listed in court. In the circumstances

the first case listed in the title herein was taken as a vehicle which was accepted by all. The Minister for Health was joined at

the request of counsel for the child.

5.(A)(vi)(e) It is quite clear that a considerable time had passed during which the list of cases was adjourned. The court was

given information about the plans of the respondents and further adjournments were made. Counsel did not seek an injunction

until that time had passed. Indeed, an injunction was sought only after the learned trial judge raised the possibility of such an

approach. It is clear that there had been a reluctance by counsel on behalf of the applicants to seek an injunction. The list of

children’s cases and the many adjournments pending the implementation of the plans of the respondents illustrate this fact.

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

5.(A)(vi)(f) In all the circumstances it is clear that at the time of the motion for an injunction Kelly J. had been in charge of

the list of cases for quite some time, had heard many applications in relation thereto, had heard evidence in relation to the

children and had heard evidence in relation to the national plans of the respondents. Kelly J. was in a unique position of

knowledge in relation to the position of all the parties. At the time the motion for an injunction arose each of the applicants had

been before the court many times, reports had been furnished to the court and the learned High Court judge who dealt with

these applicants had charge of the court list containing the cases of these and other applicants seeking the provision of special

facilities, services and high security units.

5.(A)(vii) Conclusion on Standing of the Applicants

In all the circumstances, including the above named important factors, I am satisfied that the learned High Court judge had

jurisdiction and was correct to determine that the applicants had standing for the approach which he suggested. A group

approach, of children from the long list of cases listed before the trial judge, as suggested by the learned trial judge, was an

efficient and effective approach on behalf of all the State institutions, the State as a whole, toward determination of the

issues. I would uphold the decision of the trial judge on this aspect of the appeal.

5.(B) The Separation of Powers

5.(B)(i) The Separation of Powers in the Irish Constitution.

The Constitution provides that all powers of government, legislative, executive and judicial, derive from the people whose right

it is to designate the rulers of the State: Constitution of Ireland, Article 6.1. These powers are exercisable under the

Constitution only by or on the authority of the organs of State established by the Constitution: Constitution of Ireland, Article

6.2.

The three great organs of government, legislative, executive and judicial, are given separate powers under the Constitution.

They are independent institutions. The sole and exclusive power of making laws for the State is vested in the Oireachtas:

Constitution of Ireland, Article 15.2.1. The executive power of the State is exercised by or on the authority of the Government:

Constitution of Ireland, Article 28.2. Justice is administered in courts established by law by judges appointed in the manner

provided by the Constitution: Constitution of Ireland, Article 34.1.

Fundamental powers of government are distributed between these three great organs of State. A separation of powers is

described although it is not a strict division or distribution of power. It is not a doctrine applied rigidly in the Constitution. A

framework for government is established which includes a functional separation of powers to independent organs of State. It is

the separation and independence of the institutions which is important. However, checks and balances are created between the

three organs of State, for example the power given to the superior courts to review legislation, and the power given to the

Government to appoint judges and to Dáil Éireann and Seanad Éireann to remove a judge.

No Paramountcy

It has long be recognised that no one of the three great institutions of State is paramount. In Murphy v. Corporation of Dublin

[1972] I.R. 215 at p. 234 Walsh J. stated:

“As the legislative, executive and judicial powers of government are all exercised under and on behalf of the State, the

interest of the State, as such, is always involved. The division of powers does not give paramountcy in all circumstances

to any one of the organs exercising the powers of government over the other.”

The scheme under the Constitution does not give any one institution paramountcy in all circumstances. There is a division of

power between all three organs of State. All three exercise power, and the functions exercised by all three are exercised for the

benefit of the State. It is to the benefit of the State that all three organs are independent in the exercise of their functions.

Respect

As all powers of government derive from the people and are exercised by the institutions of State established by the

Constitution for the people it is proper that each branch of government respect the others. Thus, when the courts commenced

reviewing legislation under the provisions of the Constitution of Ireland, 1937 they developed the concept of the presumption of

constitutionality. In Pigs Marketing Board v. Donnelly Dublin) Ltd. [1939] I.R. 413, Hanna J. stated at p. 417.

“When the court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a

law passed by the Oireachtas, the elected representative of the people, is presumed to be constitutional unless and until

the contrary is clearly established.”

The principle was explained by O’Byrne J. in Buckley & Ors. (Sinn Féin) v. The Attorney General & Anor. [1950] I.R. 67 at p. 80

as:

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

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

independence and functions and to act accordingly.

5.(B)(ii) Separation of Powers and Court Intervention

The separation of powers has long been recognised in case law. In Buckley and Ors. (Sinn Feín v. Attorney General & Anor.

[1950] I.R. 67 at p. 81, O’Byrne J. giving the judgment of the court stated:

“The manifest object of [Article 6] was to recognise and ordain that, in the State, all powers of government should be

exercised in accordance with the well recognised principle of the distribution of powers between the legislative, executive

and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent

articles are designed to carry into effect this distribution of powers.”

However, the doctrine of the separation of powers does not protect the Government if there is a clear disregard of its

constitutional powers and duties. The law was described by Fitzgerald C.J. in Boland v. An Taoiseach [1974] I.R. 338, where he

held at p. 361-362:

“. . . [Article 6] . . . [established] beyond question the separation of the executive, legislative and judicial powers of

government . . . Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or

interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount

to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”

This approach was also taken in the same case by Griffin J., at p. 370 - 371, where, having referred to Article 15.2.1, Article

28.2 and Article 34.1, he stated that:

“In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in

my view it would be the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to

do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought

before the Courts.”

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

“Furthermore, I interpret the decision of Griffin J. in Boland v. An Taoiseach [1974] I.R. 338 as being consistent with the

view already expressed by me that where an individual person comes before the courts and establishes that action on the

part of the executive has breached or threatens to breach one or other of his constitutional rights that the courts must

intervene to protect those rights but that otherwise they cannot and should not.”

Having considered the words of Fitzgerald C.J. in Boland v. An Taoiseach [1974] I.R. 338 especially at p. 362 and the words of

Finlay C.J. in Crotty v. An Taoiseach [1987] I.R. 713 especially at p. 775, Hamilton C.J. stated in McKenna v. An Taoiseach (No.

2) [1995] 2 I.R. 10 at p. 32:

“These dicta clearly establish that

1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the

Government of its executive functions provided that it acts with the restraints imposed by the Constitution on the

exercise of such power.

2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in

clear disregard thereof, the courts are not only entitled but obliged to intervene.

3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the

Government of the powers and duties conferred on it by the Constitution.”

Consequently, it has been determined in many cases that the courts are entitled to intervene if there has been a clear

disregard by the Government of its powers and duties, under the Constitution. In fact the courts have a duty to intervene in

such circumstances. This arises because the courts are the guardians of the Constitution.

The courts have the power and obligation to protect constitutional rights. This protection may be acknowledged and remedied

after an event. However, the court also has jurisdiction to protect a person from an anticipated breach of a constitutional

obligation. This was recognised by Walsh J. in East Donegal Co-operative v. Attorney General [1970] I.R. 317 at p. 338, where

he stated:

“Rights which are guaranteed by the Constitution are intended to be protected by the provisions of the Constitution. To

afford proper protection, the provisions must enable the person invoking them not merely to redress a wrong resulting

from an infringement of the guarantees but also to prevent the threatened or impending infringement of the guarantees

and to put to the test an apprehended infringement of these guarantees.”

It has long been recognised that the courts have a wide power to remedy breaches of constitutional rights. Perhaps the most

quoted dictum on the topic was that in The State (Quinn) v. Ryan [1965] I.R. 70 by O’Dalaigh C.J. who stated at p. 122:

“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should

be set at nought or circumvented.

The intention was that rights of substance were being assured to the individual and that the Courts were the custodians

of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or

circumvent them, and the Courts’ powers in this regard are as ample as the defence of the Constitution requires.”

However, the breadth of remedy described was repeated in other decisions. For example, in Byrne v. Ireland [1972] I.R. 241 at

264, Walsh J. stated:

“In several parts in the Constitution duties to make certain provisions for the benefit of citizens are imposed on the State

in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the

Constitution must be deemed to have created a remedy for the enforcement of these rights.”

He continued at p. 280:

“In my view, that was clearly enforceable against Saorstát Éireann if no provision had been made to implement that

Article of its Constitution. There are several instances in the Constitution of Ireland also where the State undertakes

obligations towards the citizens. It is not the case that these are justiciable only when some law is being passed which

directly infringes these rights or when some law is passed to implement them. They are justiciable when there has been a

failure on the part of the State to discharge the obligations or to perform the duties laid upon the State by the

Constitution. It may well be that in particular cases it can be shown that some organ of the State already has adequate

powers and in fact may have had imposed upon it the particular duty to carry out the obligation undertaken by the State,

but that would not mean that the State was not vicariously liable for the non -performance by its various organs of their

duties.”

He stated also at p. 281:

“Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to

enforce these must be deemed to be also available.”

It is clear from the cited decisions that the High Court had jurisdiction to make an individual order in relation to each of the

applicants, and individually for the others in the list of children seeking a similar remedy, in relation to their constitutional rights

and the respondents’ constitutional obligations. This was not contested. The issue before this court is whether the High Court

had jurisdiction to make the form of order which it did which was mandatory and addressing a number of person’s rights rather

than an individual person’s right. The nature of the remedy in this case has given rise to the submission on behalf of the

respondents that the courts, applying the doctrine of the separation of powers, have not got jurisdiction to make the

mandatory orders made in these cases.

5.(B)(iii) Mandatory Orders

Practice

The State submitted that the mandatory orders were in effect a transfer of overall policy to the courts from the executive and

consequently were contrary to the separation of powers. While accepting that a piecemeal approach would be constitutional

(i.e. a specific order for each of the applicants) it was submitted that the order in question was a step too far.

In general the courts do not favour the making of mandatory orders against the executive. If a constitutional issue arises

relevant to executive actions then the best practice is for the courts to make a finding and declare a right in a situation where

the executive has indicated that it will abide by the determination of the court. In consequence a mandatory order is

unnecessary, a simple declaratory order suffices. As a matter of practice it happens regularly that counsel indicate to a court

that should the decision be against the executive (be it a Minister or other body) then a mandatory order would not be

necessary. This is an illustration of the two institutions (the court and the executive) exercising their powers for the ultimate

benefit of the State as a whole, with the interest of the State and the people as the fundamental concern. Quite apart from

constitutional principles such as the separation of powers, mandatory orders sit uneasily with the difficult dynamics of social

deprivation and behavioural difficulty.

A decision of a court, even if it is in relation to a single individual, may affect policy. The expense of the case itself and its

outcome may have profound and far reaching effects. Simply because a case affects a policy of an institution does not per se

render it unconstitutional or bring it into conflict with the principle of the separation of powers. Nor is it a reason to abdicate

the responsibility of a court to give a decision on the constitutionality of a situation. That is illustrated by the many cases cited

previously where courts have not abdicated their responsibilities.

Policy of Respondents

In this case the order is not contrary to the policy of the respondents - it is based on the evidence of the respondents as to

their policy. It is based on the respondents’ policy. The issue for determination is whether the order mandating the respondents’

own policy breaches the doctrine of separation of powers so as to be an impermissible order under the Constitution.

O’Reilly Case, distinguished

Reliance has been placed on the decision of Costello J. in O’Reilly and Ors. V Limerick Corporation [1989] I.L.R.M. 181. The

plaintiffs were members of the traveller community residing in caravans on unofficial sites in the city of Limerick in conditions of

considerable poverty and deprivation. They did not desire to be rehoused by the Corporation but wished for sites with hard

surfaces on which their caravans could be placed, toilet facilities, running water and a regular refuse collection. They sought a

mandatory injunction directing the Corporation to provide them with adequate serviced halting sites, claiming that the

Corporation had a duty to do so under the Housing Act, 1966. They also claimed that the State should pay them damages for

past sufferings which they had undergone. This latter claim was based on an allegation that the conditions which the plaintiffs

had been required to endure amounted to a breach of their constitutional rights.

Costello J. refused to grant an order directing the defendant corporation to provide serviced sites, rejecting the plaintiffs’ claim

for damages, but granting a declaration that the defendants were obliged to review the building programme. He held that the

Housing Act, 1966 does not impose a duty upon a housing authority to provide serviced halting sites. In relation to the

application for damages on the basis of the claim that the plaintiffs had a constitutional right to be provided by the State with

certain physical resources and services, the High Court held that for the court to adjudicate on this claim it would have to

consider the fairness of the manner in which the organs of the State had administered public resources. There was no decision

by the High Court that the plaintiffs had constitutional rights. Costello J. held that the case involved a claim that there had

been a failure to distribute adequately for the plaintiffs a portion of the community’s wealth. Costello J. contrasted distributive

justice and communicative justice. He held that the claim in O’Reilly’s Case was for distributive justice. He stated:

“. . . I am sure that the concept of justice which is to be found in the Constitution embraces the concept that the

nation’s wealth should be justly distributed (that is the concept of distributive justice), but I am equally sure that a claim

that this has not occurred should, to comply with the Constitution, be advanced in Leinster House rather than the Four

Courts.”

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

(a) The facts in O’Reilly are entirely different from the facts in this case. In O’Reilly the initial part of the case was based

on an interpretation of the Housing Act, 1966. As Costello J. pointed out, to succeed in their main claim the plaintiffs had

to establish that Limerick Corporation as a housing authority under the Housing Act, 1966 had a duty to provide them with

halting sites and that it was a proper case in which the court should make a mandatory order directing them to carry out

that duty. He determined that the Housing Act, 1966 did not impose a duty on a housing authority to provide serviced

halting sites. No such statutory interpretation arose in O’Reilly

(b) The section of the judgment relied on is the claim for damages. This was grounded on a claim that constitutional

rights had been breached. It was submitted that the plaintiffs had a right to a share of the national resources. In effect,

a claim was being made that specific socio-economic rights were constitutional rights grounded in the unenumerated

rights section of the Constitution or rights in relation to the family and were breached by the defendants. That is not the

situation in this case. There was no such claim.

(c) This case proceeded on the premise of the F.N. decision. It appears that all parties proceeded on the basis that the

applicants had the constitutional rights identified in F.N.

(d) Costello J. in O’Reilly did not determine that there was a breach of a Constitutional right. Rather he analysed the

concept of distributive justice. I agree with his analysis of distributive justice and the fact that such a concept does not

apply to the justice rendered by the courts. The distribution of the nation’s wealth is a matter for the executive and the

legislature. In this case the applicants are not making a case that the nation’s wealth be justly distributed. Their cases

have been brought to protect constitutional rights which had been recognised and acknowledged.

(e) The courts have a duty to make adjudications to protect constitutional rights. It was this jurisdiction the High Court

evoked. The cases proceeded on the back of the F.N. case. In fact when F.N. was decided there were other cases

decided on the same issues such as G.L. v. Minister for Justice, Equality and Law Reform and D.T. v. Minister for Justice,

Equality and Law Reform (Unreported judgments), The High Court, (Geoghegan J.) 24th March, 1995.

(f) No argument was made that the F.N. case be reviewed by this court. Consequently this case is different from O’Reilly

in that in this case recognised constitutional rights existed in circumstances where the High Court was being requested to

protect those rights.

(g) In such circumstances, where there is a constitutional duty on behalf of the court to protect a constitutional right,

the issue of a mandatory order may arise. This was not the situation in O’Reilly.

(h) I am satisfied that in exceptional circumstances it may be open to the court to make a mandatory order in

circumstances where a constitutional right has not been protected by defendants and where there are no reasonable

grounds to balance such a decision against the protection of constitutional rights. This issue did not arise for

consideration in O’Reilly. The basis of O’Reilly was entirely different. In the applicants’ cases before this court exceptional

circumstances exist in a situation where constitutional rights have not been protected - indeed they have been breached.

Sinnott Case

There was no issue on the separation of powers for decision in Sinnott v. The Minister for Health , as I stated at the time,

(Unreported, Supreme Court, 12th July, 2001). No decision fell to be made on the issue of a mandatory order.

It is clear from the case law that in rare and exceptional cases, to protect constitutional rights, a court may have a jurisdiction

and even a duty to make a mandatory order against another branch of government. The separation of powers in the

Constitution of Ireland is not absolute. It is a fundamental principle underlying the exercise of the powers of the basic

institutions of the State and applied in a functional manner. It is a principle relevant to the three great organs of State - the

legislature, the executive and the courts - which are independent institutions - and their dynamic relationship one with the

other. However, the powers and duties of each organ of State extend across theoretical lines of separation and checks and

balances established in the Constitution breach a rigid concept of the separation of powers. The doctrine of the separation of

powers has to be balanced with the role given to the courts to guard constitutional rights.

5.(B)(iv) Guardian of Rights

An important principle of the Constitution is that the basic law - the Constitution - is supreme and the superior courts are its

guardian. The jurisdiction of the High Court was specifically stated to extend to the question of the validity of any law having

regard to the provisions of the Constitution: Article 34.3.2. Thus the Constitution specifically requires the court to adjudicate

by judicial review the constitutionality of legislation; it is the power, duty and responsibility of the High Court and the Supreme

Court to guard the Constitution. This is a fundamental principle in the Constitution. The principles of the separation of powers

and the principle that the Constitution is supreme must be construed harmoniously.

The Constitution should be construed so that fundamental principles may be interpreted harmoniously. In The People (D.P.P.) V.

O’Shea [1982] I.R. 384 at p. 426, Henchy J. stated:

“Any single constitutional right or power is but a component in an ensemble of interconnected and interacting provisions

which must be brought into play as part of a larger composition, and which must be given such an integrated

interpretation as will fit harmoniously into the general constitutional order and of modulation. It may be said of such a

Constitution, more than of any other legal instrument, that ‘the letter killeth, but the spirit giveth life’. No single

constitutional provision . . . may be isolated and construed with undeviating literalness.”

In a situation, thus, where there is a balance to be sought between the application of the doctrine of the separation of powers

and protecting rights or obligations under the Constitution the courts have a specified constitutional duty to achieve a just and

constitutional balance. Whilst acknowledging the separation of powers, and the respect which must be paid to all the great

organs of State, if it is either a matter of protecting rights and obligations under the Constitution or upholding the validity of a

statute then the Constitution must prevail. Similarly in relation to constitutional rights the appropriate institution must exercise

its powers in the light of the of the Constitution. When a court is required to determine such an issue a declaratory order is the

preferable procedure. On those very rare occasions when such a declaratory approach is not feasible then the court has the

power and indeed the duty and responsibility to uphold the Constitution and to vindicate constitutional rights. This is at the

core of the duty and responsibility of the High and Supreme Courts of Ireland.

The very nature of the division of power under the Constitution together with its checks and balances may cause tension

between the organs of government. The level of that tension may ebb and flow. However, all institutions of State have a

responsibility to the State itself to act in a constitutional manner which is to the benefit of the State as a whole. Consequently,

when an issue arises, such as in this case, where the boundaries of the separation of the powers are in issue, both of the

relevant institutions should approach the matter constructively. This approach may be illustrated by a relatively common

situation which arises where counsel for the executive may argue against a plaintiff’s claim and interpretation of the

Constitution but counsel may inform the court that should the court hold against the executive then there is no need for a

mandatory order. By such a practice institutions act constructively for the State. The executive argues strongly for that which

it considers the correct interpretation of the Constitution and the law. The court exercises its duty and responsibility in applying

the Constitution and the law. A constitutional decision is achieved. Parties proceed in a manner mindful of the scheme of checks

and balances established under the Constitution. Indeed such a constructive approach in implementing a constitutional

obligation is illustrated by the actions of counsel for all parties involved in this action between 1998 and 2000. They and the

judge were mindful of the situation of all the applicants and all the respondents.

5.(B)(v) Nature of Order - Executive’s Policy

The very nature of the order in this case is important. It is an important factor that the mandatory order in issue is to

implement the respondents’ own plans. These plans had been willingly (and long previously) presented to the court, by which

the court was guided in its initial decisions to adjourn. Also important is the express right given to apply to the court, the

implied right to apply to the court to review the situation, and the de facto situation that Kelly J. had for years managed these

lists of cases where matters were constantly under review, weekly, if not daily or hourly, and where counsel had, quite

appropriately, kept the court fully appraised of the situation. The nature of the order while being in fact the policy of the

respondents corresponded also with the vindication of the previously recognised constitutional rights of the applicants and the

obligations of the State.

5(B)(vi) Factors

There are important factors in this case relevant to the analysis of the balance to be achieved between protecting

constitutional rights, enforcing constitutional obligations and the application of the doctrine of the separation of powers. The

important factors include:

(a) The first matter is to note what the case is not. This is not a case where there is a conflict between caring parents

and the State as to a responsible decision to be made in relation to the children. These children are in the care of the

State.

(b) Nor is there an issue as to the welfare of the children - it is clear that the welfare issue of the children will be best

met by places in secure high support units.

(c) This case is grounded fundamentally on Article 42.5 of the Constitution. Thus it is grounded on concepts including

education and the common good. The right to education is a specially acknowledged right under the Constitution. The

common good is a collective concept, to be advanced by the State, through each of its institutions which include the

respondents and the courts. Thus the case has a firm constitutional grounding.

(d) The applicants each have constitutional rights which were not contested.

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

F.N.

(f) The applicants are children. This raised at least two fundamental matters of importance:

(i) the court has a duty to ensure that the process enabled the children’s rights be protected,

(ii) the nature of the constitutional rights in issue meant that time was of the essence.

(g) There had been culpable delay by the respondents.

(h) Delay is an important factor in light of the nature of the rights being protected and the age of the applicants and the

effect of not vindicating the rights during the children’s youth. Damages at a later state would not be an adequate

remedy.

(i) For some considerable time the judge had been in charge of the list of cases of children, including the applicants and

others, who were seeking to have their constitutional rights to high support places protected. He had an extensive

knowledge of all the cases.

(j) The judge, with the support of all parties, heard evidence of the plans of the relevant bodies for the respondents. All

parties participated willingly in setting out for the judge the plans of the respondents for establishing relevant facilities.

(k) Counsel for the applicants did not process their cases, in light of the evidence of the respondents of their plans and

the expectation that the plans would be implemented. Thus the applicants altered their position in not proceeding with

their proceedings. This alteration was to their detriment.

(l) The respondents fully informed the court of their plans, which plans the court accepted as being appropriate in the

circumstances. As a consequence the respondents had the benefit of considerable lengthy adjournments and the absence

of litigation individually by each applicant and others seeking individual orders relating to their constitutional rights and

obligations. The respondents benefited from their actions and the actions of the applicants.

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

injunction.

(n) The order of the court was to enforce the policy of the executive. It was not a situation where the court investigated

the basis for a policy or established a policy. The policy being enforced was that of the executive with the right to apply

to vary. It was a policy consistent with previously recognised constitutional rights and the obligations of the State as a

whole.

5.(B)(vii) Exceptionalism

This case includes the concept of exceptionalism. This term has been used to describe cases which include exceptional

circumstances which call for an exceptional decision. The Constitution specifically refers to exceptional cases - indeed it does

so in an article most relevant to this case. Article 42.5 states:

“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State

as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always

with due regard for the natural and imprescriptible rights of the child.”

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

“1. forming an exception

2. unusual; not typical (exceptional circumstances)

3. unusually good; outstanding.”

I am satisfied that in the Constitution the term ‘exceptional’ means forming an exception, unusual, not typical, being exceptional

circumstances. Thus the Constitution specifically recognises exceptional cases and that in such exceptional cases decisions of

an exceptional nature may be made. Indeed this concept is at the root of the concept of justice itself where a decision is

sought that is just for the parties involved.

5.(B)(viii) A Balance

In determining this matter a harmonious balance of the rights and duties of all the parties is sought. In the exceptional

circumstances of this case the constitutional rights, obligations and principles must be weighed in the balance. In the rare and

unusual circumstances of this case where each individual has rights and the respondents have obligations the fact that the

cases proceeded by way of a type of group action for the mandatory injunction relating to the buildings rather than a series of

individual orders for individual places in such buildings has meant that the respondents have now sought a decision on the

balance to be achieved as between constitutional obligations and duties on the one hand as against the enforcement of a

doctrine, the separation of powers. The Constitution established the special duty of the courts to protect fundamental rights

and the Constitution. This duty, a relatively advanced concept in 1937, is now a duty commonly found in constitutions of

democratic states. The court has a right, and indeed a duty, to make a mandatory order in certain circumstances if there has

been a breach of the Constitution, if an obligation has been evaded, if constitutional rights are being set at nought. I am of the

opinion that it would have been an abdication of judicial duty to continue to adjourn the applicants’ cases on a chimera of

plans. This left the High Court in a position whereby it could make individual orders for each of the applicants. Such an

approach, it is agreed, would not have been contrary to the doctrine of the separation of powers. Instead, the High Court took

the collective approach herein which is the matter at issue.

5.(B)(ix) Judicial Adjudication

The court is a judicial decision maker. It does not plan issues for decision. It has no choice over the issues upon which it is

called upon to make decisions. Cases are brought to court and they set the court’s agenda. Further, a decision has to be made.

The matter cannot be sent to another body for consideration, for a report etc. A court adjudication is of its nature a different

type of decision to that made in the legislature or the executive. The decision is made within the Constitution and the law

which form the parameters of the adjudication.

In seeking the decision the court may be in a situation where the decision is clearly indicated, there is a single possibility.

Often, however, especially in relation to issues of rights, there are conflicting rights to be weighed and a proportionate and

balanced decision sought. Such a decision involves the exercise of judicial discretion within the parameters of the Constitution

to achieve a just decision. Under the Constitution such a decision is required of the superior courts.

5.(B)(x) Judicial Discretion and Democracy

The judiciary are the third branch of government in the democratic Irish State. The Constitution did not establish a structure of

government with a rigid separation of powers. It incorporated a doctrine of the separation of powers and a system of checks

and balances by one branch of government of another. The role of the superior courts in relation to the judicial review of

legislation to review its constitutionality was specifically incorporated in the Constitution.

It was a sophisticated step taken by the people in 1937 to incorporate such a system of judicial review. Previously Ireland had

been governed by the Westminster model - the simple parliamentary sovereignty - democratic majority system - where

parliament was supreme and the courts did not have such power of constitutional judicial review. Subsequently Westminster has

been changed somewhat by the introduction of the Human Rights Act, 1998.

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

In 1937 Ireland did not favour the Westminster model. Rather an approach was taken more similar to that of the United States

of America. As a consequence of this approach the High and Supreme Courts of Ireland were given the Constitutional duty of

judicial review. The courts were made guardians of the Constitution.

The 1937 Constitution and the judicial review element is in keeping with a modern democratic state where there are important

elements to protect, being of the democratic majority, fundamental rights, and the rule of law. The function of the courts in

protecting fundamental rights and the rule of law is part of the balance within a modern constitution. By including such a

balance the democratic values, fundamental rights and the rule of law are protected. The ultimate decision maker is neither a

majority of representatives elected (in the executive or the legislature) nor the judges but the people in a referendum. By such

a system the fundamental rights and the rule of law are protected.

Under the Constitution powers are given to each branch of government. The three branches, legislative, executive and judicial,

have powers which are limited, which are subject to checks and balances. Constitutional government is limited government. The

separation of powers is an important aspect of the Constitution. However, in addition to that doctrine there is the jurisdiction of

the courts to protect fundamental rights. This is not only a jurisdiction but a duty and obligation of the courts under the

Constitution.

The Constitution of Ireland, 1937 presciently heralded in the post World War II democratic constitutions of many countries

which include judicial protection of fundamental rights by judicial review. The Constitution of Ireland, 1937 set out fundamental

rights, yet it predated the U.N. Declaration of Human Rights and the European Convention on Human Rights. The Constitution of

Ireland, 1937 included the duty of judicial review for the superior courts as part of the scheme to protect fundamental rights

and the rule of law. This model is now being developed across Europe and the common law world. An apt description of the part

played by superior courts in countries with modern constitutions, democracy, the rule of law, fundamental rights and judicial

review has been given by Chief Justice Barak of Israel. The place of judicial review and democracy was analysed by the Israeli

Supreme Court in United Mizrahi Bank Ltd. v. Migdol Village (1995) 49(4) P.D. 221. Although the main issue was as to the power

of the court by judicial review to declare a statute unconstitutional the analysis is analogous to the issues in this case, the

protection of fundamental rights by the court. Barak C.J. stated:

“. . . judicial review of constitutionality is the very essence of democracy, for democracy does not only connote the rule

of the majority. Democracy also means the rule of basic values and human rights as expressed in the constitution.

Democracy is a delicate balance between majority rule and the basic values of society. Indeed democracy does not mean

formal democracy alone, which is concerned with the electoral process in which the majority rules. Democracy also means

substantive democracy, which is concerned with the defense of human rights in particular . . . Judicial review of

constitutionality therefore prevails over what is known as the ‘counter-majoritarian dilemma’. One way to accomplish this

is by emphasizing that when judges interpret the constitution and invalidate contradictory laws they give expression to

the fundamental values of society that have developed over time. Thus the court safeguards constitutional democracy

and maintains the delicate balance upon which it is based. Remove majority rule from constitutional democracy and its

essence is harmed. Remove the sovereignty of fundamental values from constitutional democracy and its very existence is

called into question. Judicial review of constitutionality enables the society to be true to itself and to honor its basic

conceptions. This is the basis for the substantive legitimacy of judicial review. This is also the true basis for the principle

of constitutionality itself. We are bound by the constitution that was enacted in the past because it expresses the

fundamental outlook of modern society. It may therefore be said that each generation enacts the constitution anew. By

means of judicial review we are loyal to the fundamental values that we took upon ourselves in the past, that reflect our

essence in the present, and that will direct our national development as a society in the future. It is therefore no wonder

that judicial review is now developing. The majority of enlightened democratic states have judicial review. It is difficult to

imagine the United States, Canada, Germany, Japan, Spain, Italy, and many other nations without judicial review of

constitutionality. The Twentieth Century is the century of judicial review. Thus real meaning is given to the principle of

constitutionality to constitutional democracy and to the proper balance between majority rule and human rights between

the collective and the individual. It may be said that whoever argues that judicial review is undemocratic is in effect

arguing that the constitution itself is undemocratic. To maintain that judicial review is undemocratic is to maintain that

safeguarding human rights is undemocratic. To maintain that judicial review is undemocratic is to maintain that defending

the rights of the individual against the majority is undemocratic. The democratic nature of the state is not determined by

the representative nature of each of its branches but rather by the democratic nature of the government as a whole. In

examining the democratic aspect of judicial review it must be noted that every constitution provides for methods by

which it may be amended. As long as these methods are not rigid they allow today’s majority to realize its aspirations.

The methods by which a constitution may be amended reflect the balance that the society wishes to maintain between

past and present between long term values and short term aspirations, between value and policy. These methods are set

forth in the constitution itself and are shaped by political forces.”

I adopt this analysis of the place of judicial review and the protection of fundamental rights in a modern democratic

constitution. The Constitution of Ireland, 1937 is such a modern constitution which protects democracy, fundamental rights and

the rule of law. It is a duty and obligation of the courts to protect constitutional rights and to judicially review decisions. This is

done within the parameters of the Constitution and the law. Judicial adjudications are made and discretion is exercised in

accordance with the Constitution and mindful of the principle of the separation of powers. However, ultimately the court is the

protector and guarantor of the fundamental rights and the rule of law under the Constitution. Such a duty to guard fundamental

rights should not be shirked or abdicated.

5.(B)(xi) Common Good

The concept of the common good is a principle itself incorporating a balance. It has been referred to in cases relating to a

variety of rights under the Constitution. It is a concept at the foundation of the Constitution. The preamble to the Constitution

states:

“We, the people . . .

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

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

Article 42.5, which is of particular relevance to these cases, specifically incorporates the concept of common good, as noted

previously in this judgment. All three of the great institutions of State have a duty to promote the common good in accordance

with the Constitution.

The respondents, as part of the State, as guardian of the common good, made plans and the respondents informed the High

Court of their plans for the benefit of these (and other) children. The cases were adjourned pending the implementation of the

plans. However there was culpable delay. The court, a branch of government of the State, as guardian of the children’s

constitutional rights, had a duty to vindicate those rights - and in the circumstances of this case this involved a concept of the

common good for all the applicants.

5.(B)(xii) Conclusion on the Separation of Powers Issue

The circumstances of these cases are exceptional. They include factors as identified in this judgment. There are circumstances

in which a court has a duty to intervene to protect constitutional rights. The court has a jurisdiction to make mandatory orders.

The orders sought in this case are at the extremity of this jurisdiction. Consequently, in making any such order a court has a

heavy burden to acknowledge the respect it must give to the people’s other organs of state and act accordingly. In light of the

exceptional circumstances of these cases I am satisfied that the court had a jurisdiction to make the mandatory orders in issue.

In so deciding I am persuaded also by the ongoing nature of the review of the situation by the High Court and the right

(expressed and implied) of the respondents to apply to the court. On any such application it is appropriate for the court to

approach the issues with the respect required for great institutions of state - the respondents. I am satisfied that the order in

question is necessary in the circumstances to vindicate the rights of the children. By such an order the people’s institutions of

state may, on balance, achieve a vindication of the children’s constitutional rights. In the circumstances the use of a

mandatory order directing the Minister to take all necessary steps and do all things necessary to facilitate the building and

opening of the named high support units (the provision of which the Minister had previously indicated to the court was already

in hand), was consistent with the obligation of the court to vindicate constitutional rights.

6. Conclusion

In the circumstances I am satisfied that the applicants had standing, they had the right of access to the court, to seek the

order in issue. I am also of the opinion that in the exceptional circumstances of these cases it was within the court’s jurisdiction

to make the mandatory order. The order is a proportionate response in the exceptional circumstances to protect the rights of

the applicants. I would not interfere with the exercise of discretion by the learned High Court judge. I would dismiss the appeal.