T.D. -v- The Minister for Education & ors, [2001] IESC 101 (2001)

Docket Number:203/00
Party Name:T.D., The Minister for Education & ors
Judge:Murray J. / Keane C.J. / Hardiman J. / Denham J. / Murphy J.
 
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JUDGMENT BY: Murray J.

TABLE OF CONTENTS

THE SUPREME COURT

T.D (A MINOR) AND ORS

-V-

THE MINISTER FOR EDUCATION AND ORS

Judgement of Murray J.

1CONTENTS PAGE

The Appeal 3

The High Court Order 5

The Judgement of the High Court 6

Decision:

Separation of Powers in general 13

The Separation of Powers under the Constitution 14

The Role of the Courts 16

Judicial Review in a democracy 18

The High Court Order - beyond the bounds 19

Other forms of Mandatory Order 23

Locus Standi

THE SUPREME COURT

Record No. 203/00Keane, C.J.

Denham, J.

Murphy, J.

Murray, J.

Hardiman, J.BETWEENT.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 OF

THE MINISTER FOR HEALTH AND CHILDRENRESPONDENTSBETWEEN

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

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

THE EASTERN HEALTH BOARDRESPONDENTS

BETWEEN

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

AND

MINISTER FOR EDUCATION, IRELAND, THE ATTORNEY GENERAL AND

EASTERN HEALTH BOARDRESPONDENTS

BETWEEN

G.D. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND

NEXT FRIEND K'O'D.)APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION AND SCIENCE,

MINISTER FOR HEALTH AND CHILDREN, IRELAND AND

THE ATTORNEY GENERALRESPONDENTS

BETWEEN

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

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, IRELAND

AND THE ATTORNEY GENERALRESPONDENTS

BETWEEN

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

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION,

IRELAND AND THE ATTORNEY GENERALRESPONDENTSBETWEEN

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

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION AND SCIENCE,

MINISTER FOR HEALTH AND CHILDREN, IRELAND

AND THE ATTORNEY GENERALRESPONDENTSBETWEEN

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

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

BETWEEN

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

AND

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

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...

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