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  • away from the sink when it fell She disavowed any knowledge of this kind of science but answered all I know is I had to brake It was then put to her that if she was travelling at twenty miles an hour it would take her forty two feet to stop and she simply stated that she did not know that It was finally suggested to the plaintiff that in order for what occurred to have taken place she would have had to be travelling at much the same speed as the defendants which of course was suggested by the defendants to be five to ten miles per hour and if she was wearing a seat belt it was highly improbable that she could suffer any injury The figures as put by Mr Gilligan cannot be disputed and they were supported by expert evidence called by him in the form of Mr Mark Jordan an engineer But it is not credible in my view to suggest that the trial judge failed to pay heed to or take into account the evidence of braking distances which are commonly put forward in motor accident cases The correct inference to draw from his judgment is not that he did not take them into account but that the evidence as to the speed of the vehicles and the distance between the plaintiff s car and the trailer could not necessarily be relied upon If as would seem to be the case he believed the plaintiff s basic story in the sense that he came to the conclusion she was a truthful witness giving a truthful account he was entitled to assume that speeds and distances which might tend to discredit her were inaccurate A legitimate criticism might be made that the learned trial judge should have made this clear which he did not do But he clearly did make a finding that the plaintiff did have to brake suddenly as a consequence of the sink falling out of the trailer and that she suffered some injuries as a consequence It was also the case she consistently made to her doctors I am of opinion that it was open to the learned High Court judge to accept these facts even if they did not tally with speeds and distances put forward But as I have already indicated the fallback position of the defendants is that they were entitled to have an adjudication in the judgment on the precise issues which they had raised and that the absence of reference to these rendered the judgment unsatisfactory and therefore the trial unsatisfactory It would undoubtedly have been highly desirable if the learned High Court judge had made findings of fact on all the issues raised at the hearing as envisaged by this court in Hay v O Grady 1992 1 I R 210 but the absence of such precise findings in this case would not in my view warrant a new trial It is reasonably clear that

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  • was a duality of purpose in making the appointment but the Society was entitled to investigate the accounts Even if the impermissible investigation of the fraudulent claims was the dominant purpose that would not invalidate the decision The learned trial judge observed that if the time and effort expended on this particular investigation lends itself to a 50 50 apportionment between the books and accounts on the one hand and fraudulent claims on the other and if the purposes can be similarly assessed he did not see how the former part of the investigation could in such circumstances be described as a colourable device The appointment for the legitimate and permissible purpose of investigating compliance with the accounts regulations would have to have been a colourable device for the pursuit of the illegitimate one So far as the use of the accountant s report was concerned it was submitted that the severance argument would apply It was perfectly possible to exclude those parts of the report which represented the fruits of the impermissible part of the investigation The Law Society cited a number of examples of the severance of different types of legal instruments though Cassidy remained the principal authority State McKeown v Scully 1986 I L R M 133 a finding of suicide in an inquest verdict and Glencar Exploration plc v Mayo County Council 1993 2 I R 237 one provision of a county development plan prohibiting the grant of any permission for mining were examples of courts deciding that they could annul severable parts of a decision In other cases it has been decided that an impugned provision was not severable In the case of legislation found to be repugnant to the Constitution the question is one of interpretation of the legislative intent If severance were to have the effect of leaving in force a legislative provision that would not represent the intent of the legislature severance would not take place in spite of the provisions of Article 15 s 4 sub s 2 of the Constitution In Pigs Bacon Commission v McCarron 1981 I R 451 the Court of Justice of the European Communities had given rulings that had the effect that a statutory levy scheme in respect of the sale of pork products was invalid insofar as it was devoted to purposes principal amongst them an export bonus scheme which that court considered to be incompatible with Community law The Pigs and Bacon Commission sought nonetheless to recover such part of the levies as was not used to fund such purposes The plaintiff was successful in the High Court relying on Cassidy This court however distinguished Cassidy and reversed that decision O Higgins C J considered that to allow the plaintiff to recover a part only of the levy which the plaintiff had itself certified as payable would involve the court and not the plaintiff Commission in declaring a rate of levy CONCLUSION This court must approach the matter on the basis of the facts found by the learned trial judge I have already referred to the conclusion of Murphy J at the outset of this judgment At page 3 of the unreported judgment he also said By letter dated the 24th May 1993 Mr Connolly wrote informing Mr Kennedy of the fact that Ms Foley had been appointed to carry out the investigation and drawing the attention of Mr Kennedy to his obligations under the accounts regulations It is clear and the learned trial judge has so found that Ms Foley was specifically instructed by the Society that in addition to inspecting the books of account she was to look for evidence of fraudulent claims passing through the practice and secondly that these instructions were not disclosed to Mr Kennedy at the commencement of the investigation or prior thereto Ms Foley was aware of the Lillicrap case and was further informed by Mr Connolly of his suspicions in relation to other fraudulent claims which might have been processed by Mr Kennedy s office Ms Foley was required to investigate whether Mr Kennedy s firm had complied with the Accounts Regulations and whether his firm was involved in spurious claims It was as the learned trial Judge held a two pronged investigation I do not think that it is possible to do justice to the arguments concerning the validity of the exercise by the Law Society of its statutory powers and duties without some further reference to the facts of the case At the conclusion of the evidence the learned trial judge made two specific findings of fact as follows Firstly I found that in initiating the investigation the investigating accountant was specifically instructed by the Law Society that in addition to looking at the books of account to look for evidence of fraudulent claims passing through the practice Secondly I also found on the evidence that this latter aspect of the inquiry was not disclosed to Mr Kennedy either prior to or at the commencement of the investigation He went on to observe that the first of these findings was consistent with the fact that counsel for the Law Society accepted from the outset that about 50 of the investigation work actually performed was in respect of the books accounts and financial records of the practice and the other 50 related to the presence or otherwise of fraudulent claims passing through the practice Mr P J Connolly gave evidence that prior to 15th April he had information from a reliable source within the Council of the Law Society that there was a connection between the applicant and one Rossi Walsh a person suspected of organising bogus claims in particular that the latter referred claims to the practice He was also aware of rumours to the same effect circulating in the profession The applicant it should be noted agreed in evidence that Mr Walsh whom he described as the infamous Rossi Walsh dial a witness had been involved in the Lillicrap case see judgment of Murphy J and was linked at one time to perhaps twenty other cases in the office before Mr Kennedy as he put it cleared them out Mr Connolly maintained that the investigation was set up for two distinct reasons namely to ascertain compliance with the Solicitors Accounts Regulations and to inquire if the practice was involved in processing spurious claims Miss Foley said in evidence that she was made aware of two things prior to commencing the investigation that there were a number of complaints relating to non payment of fees by the practice that the applicant s practice was one of a number in Dublin suspected of processing bogus claims and in particular that there was a suspicion of fraudulent claims or referrals by Mr Rossi Walsh She was given a copy of the transcript in the Lillicrap case She was given a list of other names and a working questionnaire which had been prepared in relation to the investigation of other practices where there were similar concerns Her instructions were to review files in their entirety Miss Foley sought and was provided with a certain amount of accounting information Shortly after the commencement of the investigation Miss Foley asked for the production of 19 files including that of the Lillicrap case These files had in common that all the defendants bore the surname Glass which was the name of the defendant in the Lillicrap case It is clear from other evidence which I find unnecessary to recount that Miss Foley sought information about these and similar matters Mr Kennedy became alarmed at the turn the investigation was taking and suggested to Miss Foley on 1st July that she was following a hidden agenda an expression he was to use in correspondence he commenced with the Law Society On 5th July he wrote in the course of a lengthy memorandum to Miss Foley with a copy to the Law Society It occurs to me and I must formally put it to you as the investigating accountant that you and your principals are operating a hidden agenda It appears that your principal concern and the substantive issue is not an enquiry into compliance with the Solicitors Accounts Regulations but an enquiry into Clients rather than this firm of solicitors The Law Society did not inform Mr Kennedy of their concerns regarding bogus claims Indeed it is not an exaggeration to say that they concealed it from him Mr Connolly in a letter of 6th July 1993 to the applicant said I take exception to your reference to a hidden agenda which is allegedly being pursued by the Society In the context of the vigorous contemporaneous correspondence between the applicant and the Law Society this was correctly described by the trial judge as a denial The then Chairman of the Compensation Fund Committee in evidence defended this evasion on the simple basis that an investigation of fraudulent claims could not be disclosed to the subject Furthermore Miss Foley denied or evaded the issue of a hidden agenda and told Mr Kennedy that she was merely trying to make sense of the client listing by grouping similar names together The trial judge described this answer as plainly untrue It is regrettable not to use any stronger expression that Mr Kennedy did not receive a frank and truthful answer to his enquiries The Law Society argued before the High Court that the applicant had identified the wrong hidden agenda by saying that the investigation was into the clients of the practice whereas the real focus was the applicant s own involvement Although it was not in force at the time it is interesting to note that section 14 of the Solicitors Amendment Act 1994 in case of an investigation of alleged misconduct by a solicitor obliges any authorised person attending at the place of business of a solicitor to disclose of the purpose of his attendance I approach the question of the validity of the decision appointing the investigating accountant on the basis that it was made in order to carry out a two pronged investigation It has not been determined that either purpose was dominant nor has it been determined that the investigation of the accounts was a mere colourable device for the investigation of the processing of bogus or fraudulent claims On the other hand it has been found that the Law Society concealed the latter purpose going to the lengths of deceit for that purpose The consequence of the failure to make a finding that the appointment of the accountant was a mere colourable device is that the acceptance by implication in the judgment of Walsh J in Howley s case that the evidence obtained by the detention in that case would have been inadmissible does not apply By analogy it does not automatically follow in this case that the appointing decision should be declared invalid The learned trial judge asked himself in the first instance which of the two admitted purposes of the Law Society was the dominant one only to conclude that he was unable to come to any view on the matter He then moved to a test based on the question of taking into account an improper consideration and concluded that the decision could be impugned only if the consideration in question was no more than a colourable device In applying this test to the case before him he adopted the argument of the Law Society derived from Howley s case I believe that he was correct not to apply a test based on dominant purpose but in error in adopting the colourable device test The latter approach implies that an element of mala fides is necessary in order to impugn such a decision which is not correct On the other hand the Law Society has cited no authority to support its proposition that a decision made under statutory powers to achieve a plurality of purposes cannot be quashed unless it is shown that the pursuit of one proper one is a mere colourable device for the achievement of the other improper one This is not surprising Such a test would in my view seriously undermine the effectiveness of the courts in their scrutiny of administrative action This is not to deny that the notion of colourable device may in appropriate cases play a role in judicial review It is appropriate to bear in mind in the first instance the power which was being exercised by the Law Society This is set out at Regulation 29 of the 1984 Regulations and is as follows 1 In order to ascertain whether these Regulations have been complied with the Council acting either on its own motion or on a written complaint lodged with it may approve and appoint an accountant for such purposes as hereinafter mentioned 2 Where the Council approves and appoints an accountant the solicitor shall produce at a time and place appointed by the Council his books of account bank statements or pass books statements of account vouchers files and any other necessary documents including accounting statements prepared under Regulation 31 1 hereof for the inspection of the accountant and shall afford to such accountant all other facilities which the accountant may consider necessary for completing an inspection and report to the Council on the result of the investigation Subject to the provisions of the next succeeding sub paragraph of this paragraph the solicitor shall be responsible for the costs and expenses of such inspection and report if the Council determines that there has been a material breach of the Regulations 3 Before instituting an inspection on a written complaint lodged with it the Council shall require prima facie evidence that a ground of complaint exists and may require the payment by the person lodging the complaint of a reasonable sum to be fixed by it to cover the costs of the inspection and the costs of the solicitor against whom the complaint is made and any sum not so applied shall be refunded to the person lodging the same 4 5 not relevant The Law Society exercised a power granted by regulations which they had themselves made pursuant to powers conferred by the Solicitors Act 1954 and with the concurrence of the President of the High Court It is bound to respect the limits imposed expressly or impliedly by the governing statute and the regulations themselves It has been determined that in making its decision it pursued a purpose which was not authorised by the enabling regulations The matter was approached in the High Court on the basis that the Law Society was pursuing two aims of equal importance If that is the correct approach then it made a decision which was designed insofar as one of those aims was concerned to pursue an unauthorised purpose The issue is essentially one of ultra vires The delegates of statutory power cannot be allowed to exceed the limits of the statute or as here the secondary legislation conferring the power The rationale for this is simple and clear The Oireachtas may by law while respecting the constitutional limits delegate powers to be exercised for stated purposes Any excessive exercise of the delegated discretion will defeat the legislative intent and may tend to undermine the democratic principle and ultimately the rule of law itself Secondly the courts have the function of review of the exercise of powers They are bound to ensure respect for the laws passed by the Oireachtas A delegate of power which pursues though in good faith a purpose not permitted by the legislation by for example combining it with other permitted purposes is enlarging by stealth the range of its own powers These principles in my view must inform any test for deciding whether a power has been exercised ultra vires Henchy J stated in Cassidy v The Minister for Industry and Commerce 1978 1 I R 297 The general rule of law is that where Parliament has by statute delegated a power of subordinate legislation the power must be exercised within the limitations of that power as they are expressed or necessarily implied in the statutory delegation Otherwise it will be held to have been invalidly exercised for being ultra vires The present case is not one where some secondary or incidental advantage follows from the decision made The impermissible aim or purpose was clearly intrinsic from the outset It is not necessary that it be dominant The matter was well put in a passage from de Smith s Judicial Review of Administrative Action 5th ed at page 330 quoted by the learned trial judge If power granted for one purpose is exercised for a different purpose that power has not been validly exercised the person so authorised cannot be allowed to exercise the powers conferred on them for any collateral object that is for any purposes except those for which the legislature has invested them with extraordinary powers Although Glidewell J in R v Inner London Education Authority 1986 1 All ER 19 in a passage also cited in the judgment under consideration spoke of the general problem of plurality of purpose as a legal porcupine which bristles with difficulties as soon as it is touched he formulated a simple and clear test for the resolution of the case before him namely whether in reaching its decision ILEA was pursuing an unauthorised purpose namely that of persuasion which has materially influenced the making of its decision my emphasis see page 36 The decision of Glidewell J was cited in the judgment of Higgins J in the case of In the Matter of an Application by Denis Gerard Murray 1987 N I J B 1 which concerned the transfer by order of the Chief Constable of the RUC of four police officers who had given what the Chief Constable considered to be untruthful evidence at a disciplinary enquiry Higgins J found that while had had no doubt that the Chief Constable was

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  • the issue that arose in the nullity proceedings Having heard submissions from Mr Shatter the trial judge asked the wife as to whether she wished to make submissions The transcript continues The wife My lord I really don t know what s going in here at the moment as I said I am not a legal person and this court has refused me legal representation I am basically outmanoeuvred because I don t have the money to continue so that s why I am in this situation but I have some papers that I would like to submit to your lordship Trial Judge What are they I am not accepting any documents that have not been the subject matter of this case The evidence is over you can make your submission Who prepared that document before you The wife My previous lawyers Trial Judge Who are they The wife Ms Clissmann I think Trial Judge Whom you have discharged The wife Yes Trial Judge What are they Read them out to me The wife There is a nullity petition Trial Judge Yes go ahead The wife There is a Commission of European Communities the Brussels Convention which is coming into force at the March 2001 Trial Judge Yes The wife The rest my lord I don t know what it is There is a judgment from McGuinness J and some other legal Trial Judge Authorities The wife Authorities yes Trial Judge Very well I don t require them Thank you The trial judge then indicated that he would reserve his judgment on the nullity issue and asked what the position was in relation to the other proceedings listed for that day Ru was at that stage and had been for some time in the custody of the husband and Mr Shatter informed the trial judge that he did not know whether the wife was contesting the question of custody In relation to the question of access by the wife he referred inter alia to evidence from two doctors as to the desirability of access by the wife Mr Shatter said that the issues in the third set of proceedings did not really arise at this stage provided there was an undertaking by the wife not to enter the husband s home He said that one of the doctors was available to give evidence in relation to access to Ru and that it might be of help at this stage if the wife would indicate to the court what her view was of those proceedings The transcript continues Trial Judge Now Mrs B The wife I am just too distressed to make any decision at the moment Trial Judge Well it is just unfortunate that you were not distressed for the last six months You took up an hour of the court s time today and seventeen days ago tried to prevent this case being heard in accordance with the directions of the President of the High Court You have heard Mr Shatter in relation to Ru s welfare you have heard what he said Do you have a view about this case Do you want to fight it The wife I don t know Trial Judge I do want to hear Dr Cummiskey Mr Shatter Yes my lord Trial Judge Ru is 13 years of age Mr Shatter He is indeed my lord Trial Judge I have said this time and again while you are part of the problem you may if you wish be part of the solution this is an ongoing problem Ru is entitled to the parenthood of both parents but on the basis of medical advice I will afford you the opportunity of comporting yourself I will take this matter up the guardianship matter at 11 o clock tomorrow do you understand that In the meantime I think it is about time Mrs B that in the interests of Ru you take this opportunity of speaking to your husband about the test that this court by law must apply which is to take the paramount welfare of the infant and deal with it on that basis and that is how it is going to be dealt with tomorrow You might save yourself much distress if you took the time this afternoon discussing it with your husband It is a matter for you When the hearing resumed the following day Mr McGonigal informed the court that notice of change of solicitor had now been served in relation to all three proceedings The trial judge having indicated that the nullity proceedings had concluded Mr McGonigal said he had an application to make in relation to those proceedings The trial judge said that the case had concluded that he had reserved his judgment and that he would not entertain any application He then invited Mr Shatter to open the Guardianship of Infant Act proceedings Mr McGonigal then made two further applications to the trial judge first for an adjournment of the Guardianship of Infant Act proceedings on the basis that his side were not in possession of the full papers and were therefore not in a position to advise or properly to represent the wife He said that he understood that there was an interim custody order in existence and that subject to what he described as appropriate access over the next period of time he was happy that the interim custody order should stand pending the adjourned hearing He also submitted that the adjournment should be until such time as the court decided the nullity proceedings The second application was that the trial judge should recuse himself from the proceedings on four grounds 1 What he described as the unsatisfactory nature of the hearing the day before 2 What he described as the denial by the court to his client of legal representation 3 What he described as the refusal to accept written opinions judgments and community regulations from Mrs B When she handed then to you 4 The refusal by the trial judge of the application of an adjournment save on what he described as impossible onerous terms The trial judge then asked Mr Shatter to respond to the application for an adjournment and the latter again referred to the previous history of the matter and said it was still not clear whether the custody issue was being contested The trial judge invited Mr McGonigal to reply to Mr Shatter s submissions and in response to a question from the trial judge Mr McGonigal said that he was not in a position to say whether he was contesting custody The transcript then proceeds as follows Trial Judge the application for an adjournment of these sets of proceedings is refused The record stands for itself This case was specially fixed at the direction of the President of the High Court at least eight weeks ago and was listed daily for the last two weeks It was indicated to new solicitor for the wife eighteen days ago that no application for an adjournment could be considered I am concerned for the mental welfare of the 13 year old The doctor who has interviewed the child is in court As of 4 00 yesterday afternoon it was confirmed that the case was proceeding today The case proceeds Mr McGonigal in those circumstances my lord I am asking for leave to withdraw because I am not in a position to continue Trial Judge Of course I fully respect and understand the situation that your client has placed the legal team in Mr McGonigal I beg your pardon my lord my client is not placing me in any difficulty it is the court that has placed me in these difficulties and I want to make that absolutely clear on the record Trial Judge You may withdraw Mr McGonigal I want to make that absolutely clear Trial Judge You may withdraw and conclude the prevarication that has continued as of today and yesterday I shall arise and allow you withdraw When the hearing resumed Mr Shatter said that he was still in the difficulty that he did not know whether the custody issue was being contested The transcript went on Trial Judge you may deal with it on the basis that it is contested isn t that so Mrs B The wife My Lord again what happened there today I need legal advice I ask you once again could I adjourn the case Trial Judge Mrs B Please listen to me Are you contesting the issue of the custody of your child The wife I need the adjournment of this case I have no legal advice It is too much Trial Judge You may now proceed and call your evidence Dr Helen Cummiskey a psychiatrist was then called and gave evidence as to what she considered would be most in the interests of Ru so far as the question of custody and access was concerned At the conclusion of her evidence when the trial judge indicated to Mrs B that she could cross examine the transcript continues I contest the facts and conclusions of Dr Cummiskey s report The assessment I think is over a year old She has not seen the child at least I have not been informed if you have seen Ru in the meantime I want to ask for a new assessment by an independent psychologist not a psychiatrist It is absolutely ridiculous to deprive me of my son Ru The reason I am here is because I am very well aware of what my child is going through Can Dr Cummiskey explain to me why the child still has eye tics in the presence of his father not only when I am with him but also in the company of other people K P just to go on record contacted me on numerous occasions saying she wanted to leave the employment It was through my intervention that she stayed in the household for the husband to provide continuity for my child I think it is absolutely outrageous what is happening in this court My Lord I am absolutely horrified I want my child I think it is just horrendous what is happening to him Mrs B breaks down Trial Judge Have you questions for Dr Cummiskey The wife No I am not able I am not qualified I am not a qualified barrister to go on with this Trial Judge You have no questions for Dr Cummiskey The wife I am not qualified to cross examine her I am not qualified to do that Trial Judge Very well The husband then gave evidence at some length as to various difficulties that had arisen between himself and his wife since their separation The husband was then cross examined by the wife and not surprisingly as frequently happens in such cases much of the cross examination was taken up by the wife effectively giving evidence rather than asking questions The wife having expressed strong objection to the retention of one of the doctors Dr O D who had examined Ru the transcript went on Trial Judge Does the child need help The wife Yes he does Yes Trial Judge In your view The wife My Lord he needs a mother he needs a mother Trial Judge Why did you interfere with the arrangements with Dr O D The wife I didn t interfere with the arrangements but I mean shouldn t I have been informed Trial Judge Did you cause your solicitors to write a letter as your husband has stated The wife My Lord Trial Judge Did you The wife Because I think I should Trial Judge Did you Did you The wife Yes I probably did Trial Judge It is not probably The answer is yes The wife No I mentioned it to my lawyers whether they wrote a letter or not I am not aware I don t know Trial Judge Just one moment Mrs B Just one moment Are you telling me that you do not know if you instructed your solicitors The wife That is possible my lord Trial Judge You don t know The wife My lord I got proceedings served on me every day of the week practically It is quite possible I gave a lot of instructions Trial Judge I hope the record will show that you are a very able advocate well able to exhibit a very ignorant sic approach to this court Now I am asking you a specific question concerning the welfare of your 13 year old child Are you telling me that you do not remember instructing your solicitors to object to the therapy he was undergoing The wife I have no recollection of instructing my solicitors that is the honest to God truth The other thing is all I am saying I was not informed that this man was engaged is that correct I don t know In my opinion I don t know that is all that I am saying I would like to Trial Judge You do not have to The wife I was also not informed when my son got sick and was in hospital I was not informed about that either I have nothing further to say The wife breaks down The trial judge then having indicated that he would direct the attendance of Dr O D since his letter had indicated that he would prefer not to give evidence unless the court directed his attendance Mr Shatter said he would not be calling any further evidence As to the elder son he said that he was in a position to give evidence and he was available if the trial judge required to hear him The trial judge indicated that he would like Ro to attend The trial judge also said that he would like to see Ru in his chambers Having fixed a time at which that was to happen the trial judge inquired from the wife whether she wished to give evidence She having said that she did not think she was able to the trial judge said he would consider the position at 2 o clock When the hearing resumed the trial judge was told that Ro was in the precincts of the court and the trial judge said that while he did not require him to give evidence he would see him in his chambers After he had seen Ro in his chambers the trial judge addressed himself to the wife as follows Mrs B You understand the reason I am seeing both children in chambers Mrs B you understand that The wife Yes my lord Trial Judge It is that neither child should be asked to or required to give evidence against either parent Now it is time that you have to come into the witness box and discuss with me the issue of custody and access for the little boy unless you have a view already as to what I should do in the custody issue Mrs B Do you Mrs B You are not sworn You may be seated You can compose yourself but this is a stage where the court has to look after the paramount welfare of Ru and that requires your clear attention to the problems in the case and I want you to adopt a view as to assisting the court in arriving at a solution whereby Ru s best interests are looked after The trial judge then said he would rise for five minutes to allow the witness to compose herself After the adjournment the wife was again sworn and was asked a number of questions by the trial judge as to what her view was as to his staying in the custody of his father and as to whether it was desirable that she should have access to him The transcript went on Trial Judge If you agree that you will leave him free for the next number of months we can review this you understand Would you be free to say that you will not demand to see him unless he wishes to see you for the next six months The wife Are you suggesting I have no contact with my child at all my lord Trial Judge What I am suggesting is that you do not insist on contact I mean now is the time to discuss it with me I have to form a view as to what is in his best interest He is 13 years of age He is at a crucial stage in his life He is starting off second level education He needs to do well in school depending on what career he finally decides on when he is 18 or 19 Surely what we want to do is to calm all the problems down and seek to re establish a relationship as mother and son Surely that is what we want to do Trial Judge You understand Mrs B That when there is no compulsion on him he will feel freer The wife But there was no compulsion I mean there is no compulsion on him This dialogue continued for sometime between the trial judge and the wife the wife having given no indication that she was agreeing to the trial judge s proposal The transcript went on Well if that is the tenor of your evidence then it is patently clear that I have to see the boy and that is your choice The wife Don t put that on me my lord Trial Judge That is your choice and tears are not going to solve the problem The wife I am sorry I do not mean to Trial Judge They are not going to solve the problem You have to make your choice If you are maintaining that course of action I must see the child The wife Can I have some minutes for a decision Trial Judge You may I suggest you go down and talk to your husband You may find it very difficult You would have no objections Mr Shatter would you Mr Shatter I have no objections my lord The hearing having been adjourned for a short time the wife then gave her views then as to the trial judge I have thought about the issues O K and this is what I would like which I think would be in Ru s best interests I would like joint custody but Ru to reside with his father as he does at present I am available for intensive therapy with Ru and in order to save Ru any further distress to be counselled by Dr O D the person he already knows I would like Ru to be released one day a week so that I can build my relationship with him give him the opportunity which I have not had for the last year but if Ru does not want to see me well I would not force him to abide by that O K The wife added that since she had not seen Ru last Christmas she would like to see him on Christmas Eve when German people traditionally celebrated Christmas Mr Shatter having indicated that he would not in the circumstances conduct any cross examination the trial judge said that he thought that he had to see Ru in his chambers The transcript went on Mrs B It was my understanding I had to make that decision because it was either the way I understand it was that I had to make a decision on the custody side I did so to save my son having to come up to the court Trial Judge I understand that perfectly The wife I really feel I am being hard done by Trial Judge You see this is a difficult case It is a difficult case and having regard to finally understanding your position in relation to the case it seems to me essential that I speak with Ru I will see him in private and it will not be a traumatic occasion Your eldest son survived it I think quite well The hearing resumed the following day the trial judge having seen Ru in his chambers He then asked the wife however if she wished to call evidence She repeated her desire to see Ru over Christmas and have some access to him The trial judge then said that he was satisfied that the evidence was coercive in support of the husband having sole custody of the child He described the question of access as a most problematic matter and that he proposed to consider the matter further and give a written judgment on access in the new term That written judgment was delivered by the trial judge on the 28th February when he concluded that in relation to access Ru should undergo counselling with a psychologist of his choice after Easter 2001 the wife to participate in the counselling as directed by the psychologist He said the matter could be re listed before him on 20th July 2001 when he expected a report from the psychologist together with his recommendations at which stage he hoped to be in a position to make firm orders in relation to access The hearing in July however was adjourned in view of the appeal pending in this court The Unfairness Issue Mr McGonigal SC and Mr Mohan SC on behalf of the wife submitted that the refusal by the learned trial judge to grant an adjournment of the proceedings on the 18th December 2000 save on terms that the wife pay the costs of the proceedings incurred up to that date was a denial of the wife s right to legal representation and to fair procedures both of which were guaranteed by Article 40 3 1 of the Constitution It was further submitted that what was described as the refusal of legal representation and the unfairness of the conduct of the hearing on that day violated the wife s rights under Article 6 of the European Convention for the Protection of Fundamental Rights and Freedoms They cited in support the decision of this court in The State Healy v Donoghue 1976 IR 275 and of the European Court of Human Rights in Ireland v Airey 1979 2 EH RR 305 They submitted that in circumstances where as here the wife was already being required to pay a substantial sum in respect of costs in order to secure the papers from the solicitors previously acting for her to require her to submit to a further order for the payment of all the costs incurred by the husband to date was effectively to make it impossible for her to proceed with the hearing with legal representation They further submitted that the transcript of the hearing indicated that it had not been conducted fairly by the trial judge It was urged that he had not assisted or facilitated her to the extent that one would have expected given her absence of legal representation and had wrongly refused to take from her copies of the legal authorities on which she wished to rely at the occlusion of the evidence It was further submitted that he had browbeaten her during the hearing and had not treated her with the consideration which a lay litigant without legal representation was entitled to expect On behalf of the husband Mr Shatter submitted that in the light of the earlier history of the matter including in particular the fact that this was the third team of lawyers which was now being retained on behalf of the wife the numerous previous applications for adjournments and the fact that the wife and her present solicitors had both been aware since 1st December that no application for a further adjournment would be entertained the trial judge would have been perfectly entitled simply to refuse the adjournment sought on December 18th In the event he had given her an option to which on one view she was not entitled i e an adjournment on terms that she pay the costs already incurred by the husband That was entirely reasonable he said particularly in the light of the indication given by Mr McGonigal that he might wish to examine again witnesses who had been called at the earlier hearing on the nullity issue In those circumstances the costs already incurred might properly be regarded as costs thrown away Mr Shatter further submitted that it was clear from the transcript that the trial judge made every effort to ensure that despite the absence of legal representation the wife s case was fully presented to the court As to the submission that he should have received the documents which she endeavoured to hand in at the end of the evidence he said it was by no means clear what these documents were they might well have contained opinions furnished to her by her lawyers which it would have been inappropriate for the judge to have any sight of On this issue my conclusions are as follows Parties to litigation in our courts whether it is civil or criminal are entitled as a matter of constitutional right to fair procedures They are also entitled again as a matter of constitutional right to access to the courts and it is a necessary corollary of that right that they may conduct litigation with or without legal representation as they choose Save in special circumstances which do not arise in these proceedings the court has no function in relation to the representation of parties appearing before them Nor is it necessary in the context of the present case to consider the State s obligations under the Constitution or international conventions to which it is a party to ensure that persons who cannot afford legal representation are given such assistance as is necessary in order to ensure that their rights under the Constitution and those conventions are protected The conduct of a case by a lay litigant naturally presents difficulties for a trial court Professional advocates are familiar with the rules of procedure and practice which must be observed if the business of the courts is to be disposed of in as expeditious and economic a manner as is reconcilable with the requirements of justice That is not necessarily the case with lay litigants Advocates moreover are expected to approach cases with a degree of professional detachment which assists in their expeditious and economic disposition one cannot expect the same of lay litigants least of all in family law cases The trial of cases involving lay litigants thus requires patience and understanding on the part of trial judges They have to ensure as best they can that justice is not put at risk by the absence of expert legal representation on one side of the case At the same time they have to bear constantly in mind that the party with legal representation is not to be unfairly penalised because he or she is so represented It can be difficult to achieve the balance which justice requires and the problem is generally at its most acute in family law cases such as the present The first objection taken on behalf of the wife to the conduct of the proceedings in High Court is the refusal by the High Court judge to grant an adjournment of the proceedings save on terms that the wife paid the costs incurred to date The grant or refusal of an adjournment is essentially a matter within the discretion of a trial judge I have not the slightest doubt that the trial judge would have been perfectly entitled in the present case to have simply refused the application for an adjournment without offering the alternative of an adjournment on terms The proceedings had already been adjourned on a number of occasions and on the 23rd October at which stage the third change of solicitors had already occurred the wife was informed the proceedings would now be listed on the 18th December in order to enable them to be concluded The application for yet another adjournment on the morning of the hearing was thus wholly without merit The trial judge was perfectly entitled to insist on such an adjournment being granted only on strict terms as to the payment of costs already incurred and would in my view have been quite entitled to refuse the application without even offering such an alternative The next objection was as to the alleged refusal by the trial judge to accept the documentary material which the wife proferred to him when he invited her to make submissions on the law at the end of the evidence in the nullity proceedings During the course of argument in this case Mr McGonigal sought to place before the court the materials which he said the trial judge had declined to accept Since there was no agreement between the parties as to what specific documents had been proferred to the trial judge by the wife this court declined to read the documents proferred to the court on behalf of the wife during the course of the appeal When he objected at the time of the hearing in the High Court to the trial judge s refusal to accept the documents whatever they might have been Mr McGonigal referred to them as including written opinions It may be that the trial judge was concerned and understandably so that he should not have sight of any opinions furnished to the wife by her lawyers It is sufficient to say that this court is satisfied that so far as the nullity proceedings are concerned its attention has been directed to all the leading authorities in this country and the United Kingdom on the matters in issue and that there is no substance in this ground of objection to the manner in which the trial was conducted in the High Court The next ground of objection was that the trial judge should have recused himself from the hearing when asked to do so by Mr McGonigal in the High Court because of the manner in which he had conducted the trial up to that point Since however for the reasons I have already given there is no substance in those objections the trial judge was correct in my view in declining to recuse himself from the further hearing There remains a general objection to the manner in which thereafter the trial judge conducted the proceedings I have thought it appropriate in the context of this objection to set out at what might seem to be almost excessive length extracts from the transcripts in order to convey as fairly as possible the manner in which the trial was conducted insofar as that can be done by the transcript alone It is of course notorious that a transcript will not always capture the nuances of evidence as it is given in the trial court It is undoubtedly the case that the trial judge on occasions expressed his frustration at the difficulties he was encountering because of what he saw as the refusal of the wife to accept that certain problems necessarily followed from the changes that she repeatedly made in her legal team But the transcript also reflects his concern that her case should be fully heard and that she should not suffer any avoidable injustice because of the absence of legal representation on her side In particular the trial judge showed the most commendable patience and sensitivity in dealing with what is always a difficult area i e the custody of and access to the minor child of the parties I am satisfied that the trial judge conducted these difficult proceedings in an exemplary manner and that these grounds of appeal have no substance I would have no hesitation in refusing the application that the proceedings be remitted to the High Court for a new trial on this ground The Facts as to the Nullity Issue The wife s parents fled from East Germany to the West in the immediate aftermath of the Second World War They settled for a while in West Germany but because of the shortage of labour at that time found it difficult to build up the craft business one particularly associated with Germany in which they were engaged They then met an Irishman who suggested that they might consider transferring their business to this country They arrived accordingly in 1962 with their five children including the wife who was then aged 10 She went first to the local national school for a year and then spent a further year in West Germany Her father died suddenly in 1968 and was buried in Ireland He had expressed a wish to be buried in the German military cemetery in the Dublin mountains but this was not possible because he had not been in military service The wife s mother would like to have returned to Germany but this was not a practical proposition since her home had been in what had become the German Democratic Republic The political situation at the time made her return there very difficult and financial considerations also meant it was not possible for her to return to West Germany The wife sat and passed the Intermediate Certificate in the local school and then went to a leading secondary school in Dublin and thereafter to university in Dublin She graduated from there in 1973 with a degree in German English and Economics Having spent about six months in the family business in the country the wife obtained an apprenticeship as a trainee accountant in a firm in Dublin as a result of her friendship with the notice party She lived with the notice party for about a year before they got married in 1976 At first they lived in rented accommodation in Dublin but later bought a house in the Dublin 4 area They had one child a son born in 1977 Unhappy differences arose between them and she subsequently met and married the husband The wife was very anxious to have her marital situation regularised because she now had two sons by the husband She was advised by the German Embassy to petition for a divorce in the District Court in Schoneberg She said that the divorce proceedings in Germany were very straightforward her husband was fully aware of them and indeed anxious that they should go through The expert legal evidence as to German law was that where neither of the parties to a marriage was resident in Germany a divorce could nonetheless be granted by the court in Schoneberg if either of them was a German citizen Although the notice party had become an Irish citizen in approximately the year 1967 the wife at all stages remained a German citizen As already noted she has resided continuously in this country since she arrived here with her parents in 1962 apart from two relatively brief periods in 1963 and 1964 The notice party was born in Altenberg in Germany on 10th November 1949 He came to Ireland when he was six years old with his parents His father was an engineer who worked for a semi State company in Ireland for three or four years after his arrival here and he then set up his own business in the same general field of activity The family lived in rented accommodation for the first two years and then built a house in the midlands The family paid fairly regular visits to Germany and his father was in regular contact with suppliers for his own business who were located in northern Germany or Holland Although his father at the date of the hearing in the High Court was aged 85 he still travelled to Germany at least once a year Neither of his parents ever became Irish citizens but the notice party did

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  • type During the course of a hearing before him in April 1997 it had emerged for the first time that the proposals of which Geoghegan J had been informed in March 1995 had been as he put it substantially departed from without that fact ever having been made known to the court He went on to review what developments had taken place since then and referred to proposals for the provision of two units a detention unit and a high support unit A high support unit does not have the same type of detention facilities as are provided in a detention unit proper Two sites were identified one at Ballydowd Lucan Co Dublin and the other at Portrane Co Dublin At the time of the hearing before the trial judge on the 29th July 1998 it was estimated that these facilities would not be in place in the case of Ballydowd until 2000 and in the case of Portrane until the end of 2001 The trial judge found that these delays were the result of frequent changes of policy on the part of the Minister He also referred to the evidence on behalf of the Eastern Health Board that sixty places a mixture of detention places and high support units were required to accommodate children with needs such as those of the applicant the position at that time was that there were only eighteen such places available Kelly J was highly critical of the manner in which the executive had dealt with the problem describing the interdepartmental wrangles delays in drafting and redrafting legislation and reverses in policy as a scandal Having said that he was satisfied that the court had jurisdiction to make orders to ensure that the constitutional rights of persons such as the applicant were upheld although it was not a jurisdiction to be exercised lightly he went on It has also been suggested that little would be achieved by the grant of such an injunction I do not agree The granting of this injunction means that the Minister is no longer at large concerning the approach to be adopted to solving this problem The developments proposed will now have to be completed and within the time scale specified If there is to be any future change of policy or if the times indicated cannot be met application will have to be made to this court on the part of the Minister for a variation of the injunction This will mean that not merely will the court have to be informed of all of these developments something sadly lacking to date but objectively justifiable reasons will have to be furnished to it as to why an injunction should be varied A variation will not be granted lightly This will afford to the court an opportunity of much greater involvement than it has been possible to have in the past It will mean for these minors that the court having declared their entitlements will now see to their implementation in a direct way The Factual Background The circumstance of each of the other applicants in the present proceedings should be next summarised The applicant D B at the time of the hearing in the High Court was aged sixteen years and one month His behaviour appears to have deteriorated from the age of eight onwards and he was accommodated in a number of different institutions but did not display any significant improvement He was ultimately the subject of criminal charges but no conviction was recorded against him On 22nd October 2000 he was placed in Trinity House pursuant to an order of the High Court M B was aged fifteen years at the time of the hearing in the High Court She was also accommodated in a number of different institutions but the results were unsatisfactory she was eventually admitted to Oberstown Girls Centre on 19th May 1998 pursuant to an order of the High Court At the time of the High Court hearing she was residing in Newtown House pursuant to a High Court order G D having attended a variety of different institutions was ultimately sent to St Michael s Remand and Assessment Centre by order of the Dublin Metropolitan Children s Court on 22nd October 1998 He continued to reside in St Michael s under the order of the High Court dated the 16th February 1999 when he transferred to Oberstown Boys Centre He remained there until 15th July when he moved to Newtown House where he was in residence at the time of the High Court hearing Gary D reached the age of sixteen in April 2000 After failing to attend a number of institutions where places had been found for him he was sent to St Michael s Remand and Assessment Centre by an order of the Dublin Metropolitan Children s Court on 22nd October 1998 He continued to reside there as a result of a High Court order until 16th February 1999 when he transferred to Oberstown Boys Centre He remained there until 15th July when he moved to Newtown House where he was residing at the time of the High Court hearing Glen D was aged about thirteen years at the time of the High Court hearing At that stage he was enrolled in Scoil Eoin Crumlin attending on a daily basis P H was aged sixteen years and two months at the time of the High Court hearing On foot of court proceedings for non attendance at school he was remanded to St Michael s Remand and Assessment Unit and continued to reside there under order of the Children s Court That court having decided that he could not be remanded any further to St Michael s an application was made to the High Court and his detention in St Michael s continued by an order of the High Court He was subsequently transferred to a house in Churchtown then to a house in Knocklyon with similar facilities and finally to St Augustine s Special School Blackrock which he had stopped attending shortly before the High Court hearing B J was aged thirteen years at the time of the High Court hearing He was described as being out of the control of his mother for some time and was the subject of charges before the Dublin Metropolitan Children s Court He was remanded to St Michael s Remand and Assessment Unit in Finglas for a three week period ending on 27th September He was recommended for a place in St Laurence s Finglas but there was not a place immediately available there and he was again remanded to St Michael s from the 8th October On the 9th December the District Court struck out the charges against the applicant who continued however to be maintained overnight in St Michael s on a voluntary basis On the 10th December the High Court ordered him to be placed in St Michael s until a place became available in St Laurence s which happened on the 14th January 2000 T L was aged sixteen years and three months at the time of the High Court hearing After having attended a number of institutions she was the subject of an order pursuant to S 58 2 of the 1908 Act in March 1995 and on the 4th June 1997 was placed in Oberstown Girls Centre pursuant to an order of the High Court She was placed in Killinarden House on 15th December 1997 She had passed the Junior Certificate examination in June 1999 and at the date of the High Court hearing was residing in An Grianan Whitehall with the approval of the High Court S T was aged thirteen years and two months at the time of the hearing in the High Court His behaviour started to deteriorate following the separation of his parents and he was enrolled in St Peter s Special School Orwell Road in September 1997 His behaviour continued to give rise to concern At the time of the High Court hearing he was residing in Tallaght in the care of staff of the Eastern Health Board It should be noted that while some at least of the minors had appeared in the District Court on criminal charges in no case had any conviction been recorded against any of them However because of the absence of available places in sufficiently secure units with appropriate facilities for minors with behavioural problems of this nature it will be seen that it was found necessary in some cases to accommodate them in detention centres intended for the reception of children convicted of criminal charges a situation which has given rise to understandable concern It appears from the judgment of the High Court in the present case that at the time of the hearing the mandatory injunction granted by the court in D B was being complied with by the Ministers When the application of T D first came before the court Kelly J was satisfied that the provision of appropriate accommodation for minors in the position of the applicants was now being dealt with in an appropriate manner by the departments concerned It was for that reason that he granted the comparatively lengthy adjournments already referred to However on the renewed hearing he expressed his concern that the time frames within which the units would be provided had not been adhered to in any case While he accepted that this was due in some instances to circumstances outside the control of the departments concerned such as industrial disputes planning objections unforeseen site difficulties etc he said that he was also satisfied that this was not always so instancing in particular delays in the provision of a high support unit in Castleblayney In that case the time for completion had been extended from mid 2000 to early 2002 because of delays in reaching agreement as to the price to be paid to the Department of Defence for the premises they had been formerly an army barracks The trial judge was extremely critical of the fact that during that period no attempt had been made to present a planning application in respect of the proposed development As already noted the evidence before the High Court in December 1999 and January 2000 was that the Ministers hoped that the units in different parts of the country specified in the Appendix would be made available within the times indicated but were not prepared to give an undertaking that they would be so completed within the specified times to the court The High Court Judgment In his judgment the trial judge said that on the basis of the evidence he had heard he had come to the conclusion that the Department of Health and Children had not proceeded in a manner which could reasonably be expected of it so as to address what he described as the quite scandalous situation which has now obtained for years While he acknowledged that substantial progress had been made he also said that none of the time scales given in evidence before the court in April 1999 or even December 1999 would now be met and that this had been the result on many occasions of manifest inefficiency In the light of those findings he then proceeded to consider the submissions made by the parties as to whether the injunctive relief sought should be granted While it had been argued that the injunction sought was not sufficiently specific he said that he was satisfied that this was not so on the contrary the injunction would do no more than spell out what the State had already agreed would be done and that in any event if the Minister encountered difficulties beyond his control he could always apply to the court with a view to seeking a variation of the order The trial judge next considered a submission that the applicants lacked locus standi since it had not been demonstrated that any one of them would benefit directly from the granting of the relief sought He said he was surprised to hear such a submission since following the decision in F M the plans of which the court had been informed were put forward not on a piecemeal case by case basis but rather by addressing the needs nationally Having referred to the evidence of Mr Ruairi O Cillin a divisional inspector in the Department of Education and Science with acknowledged experience in this area he said that it was clear from that evidence that the absence of the facilities now being sought did have an effect in practical terms on the ability of the state agencies to meet the needs of the present applicants Having said that the applicant s interests had been adversely affected by the failure to provide the appropriate facilities the trial judge concluded that they had sufficient locus standi to make the application The trial judge then dealt with the submission that the court had no jurisdiction to grant injunctions of the type sought because to do so would be to trespass on the role of the executive in the determination of policy Having referred to what he had said in D B v The Minister for Justice he reiterated his view that there was a jurisdiction vested in the court to intervene in what has been called policy in an appropriate case Such an intervention would however occur only in limited circumstances and where it was absolutely necessary for the court to carry out its duties under the Constitution in securing vindicating and enforcing constitutional rights He was also of the view however that no question arose in this case of the courts intervening in a policy area since the executive had already formulated a policy which if carried into effect within the specified time scale would address in an adequate albeit belated fashion the rights of the applicants The trial judge went on to identify four factors which he considered should be taken into account in deciding whether or not to grant the relief sought The first was the fact that the High Court had already granted declaratory relief concerning the obligations of the State in cases of this nature Secondly he had regard to the fact that if the declaration was to be of any benefit to the minors in whose favour it was made the necessary steps consequent upon it would have to be taken expeditiously Thirdly the effect of a failure to provide the appropriate facilities would have a profound effect on the lives of children and put them at risk of harm Fourthly due regard was to be had to the efforts made on the part of the State to address the difficulties to date He said that if the court were to conclude that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the State s response was proportionate to the rights which fell to be protected then normally no order of the type sought should be made He summed up his conclusions as follows Just as in the case of D B I have come to the conclusion that in the absence of an appropriate undertaking on the part of the Minister the time has now come for this court to take the next step required of it under the Constitution so as to ensure that the rights of troubled minors who require placement of the type envisaged are met The order that I propose making will ensure that the Minister who has already decided on the policy lives up to his word and carries it into effect I am neither dictating nor entering into questions of policy but if the Court is to keep faith with its own obligations under the Constitution and with the minors with whose welfare it is concerned the injunction sought must be granted The effect of this injunction is that the proposed developments must be now completed within the time scale specified in evidence in the latest hearing before me If there is to be any change in this it will have to be the subject of an application to the court on the part of the Minister for a variation of the injunction There will have to be objectively justifiable reasons present to warrant such variation being granted Submissions of the Parties Mr Paul O Higgins S C on behalf of the appellants respondents submitted that the case on their behalf as to locus standi was that the applicants did not have the standing to seek the particular orders granted whereby particular buildings were ordered to be built at specified locations within prescribed time limits There had been no evidence in the High Court as to the particular needs of the applicants in particular it had not been demonstrated how the requirement that particular high security and high support units should be provided would meet the particular needs of these applicants It was further urged that even if the court was entitled to conclude that the rights of the applicants had been infringed by the failure of the respondents to provide the units now directed by the court to be provided which was not accepted that was a breach which could only be dealt with by way of an award of damages He said it was clear that rather than addressing the specific needs of the applicants in these proceedings the judgment and order was seeking to ensure the existence of a series of units which would be available to any children who may need them over the coming years He cited in support the decisions of this court in King v A G 1981 IR 233 and Madigan v A G 1986 ILRM 123 and of the High Court in Mhic Mhathuna v Attorney General 1989 IR 504 It was further submitted that in effect the learned trial judge was not examining the individual needs of individual applicants in the course of the hearing but rather the manner in which the relevant departments and in particular the Department of Health and Children had formulated and implemented policy in relation to the provision of high security in high support units for children at risk He was accordingly concerning himself with policy matters of general application rather than issues which were specifically referable or relevant to the needs of individual applicants It was expressly acknowledged by counsel for the applicants and the trial judge himself that the case of T D was being used as a vehicle for reviewing the progress generally in relation to the provision of facilities It was submitted that in compelling the Minister to use his executive powers in such a way as to implement a particular policy for the good not of specific applicants but rather of children at risk generally the court was clearly entering into questions of policy This was in violation of the separation of powers which confers the power to make policy on the executive the executive in turn being answerable to the Oireachtas It was further submitted that the right to formulate and implement policy must necessarily include a right to change that policy and requiring the Minister to apply first to the court before implementing any change in that policy constituted a usurpation by the judicial power of an executive power It was further submitted that it was of importance for the executive to be in a position to change its policy the evidence before the court indicated that the development of high support places together with other individualised arrangements for children would reduce the requirement for high security accommodation for such children He cited in support the decisions of this court in District Judge McMenamin v Ireland 1996 3 IR 100 Feeney v Minister for Finance 1986 ILRM 164 166 and Riordan v An Taoiseach and Others Supreme Court U R 21st July 2000 It was further submitted that the effect of the order under appeal was to require specific expenditure by the executive on the construction of the units in question and that this was an attempt to direct the manner in which the central fund is to be administered It was urged that this was also a breach of the doctrine of the separation of powers citing in support Mhic Mhathuna v Attorney General and the judgment of the High Court in O Reilly v Limerick Corporation 1989 ILRM 181 It was further submitted that the order under appeal being mandatory in nature should only have been granted if the applicants had demonstrated a very strong probability upon the facts that grave damage would accrue to him in the future if the order were not granted citing Redland Bricks Limited v Morris 1970 AC 652 Nor should an injunction be granted if it would inflict damage on the defendant out of all proportion to the relief to which the plaintiff was entitled citing Sharpe v Harrison 1922 1 CH 502 It was also submitted that a court should not normally grant a mandatory injunction if it was likely to involve the court in constant superintendence of the work to be done as was held in Ryan v Mutual Tontine Association 1893 1 CH 116 It was also urged that while the court had indicated that it would consider allowing variations to the order in respect of what it described as non culpable departures from the time scale involved there was no indication as to what might constitute such a non culpable departure It was submitted that the appellants who as state entities would be concerned not to be in contempt of a High Court order might find themselves applying on an almost weekly basis because of delays threatening the ability of the appellants to complete the buildings within the time frame provided It was also submitted that the trial judge was not entitled to take into account as he clearly did the possible obligations of the State towards other children at risk As to the concern of the trial judge that the failure to provide the appropriate facilities would have a profound effect on the lives of children and put them at risk it was submitted that there was no indication that this was a factor of any specific relevance to the making of the order so far as the individual applicants were concerned It was also submitted that while the trial judge said that he had had regard to the efforts made on the part of the State to address the difficulties to date it was clear that he had not given sufficient weight to what had in fact been done The unchallenged evidence was that capital funding of IR 4 6 million had been committed in respect of the seven Health Boards excluding the Eastern Health Board together with a revenue allocation of 5 3 million committed over that period also In addition 30 million of revenue funding would be made available to support the further development of child care services in the year 2000 which would allow not only for the development of special residential care services but also for the further development of a range of alternative services such as family support early intervention and fostering services Of that sum 3 million had been specifically earmarked to allow the Health Boards to ensure that they were in a position to carry out their duties under the Children s Bill when it was enacted In addition the evidence of Mr O Cillin indicated that 165 8 million was to be allocated for the further development of youth services It was submitted that the evidence established that since the F M case new units had been opened at Newtown House Killenarden House Gleannalainn Mullingar and Kilkenny In addition although the court treated the provision of the premises at Ballydowd and Portrane as examples of full compliance with a court order the evidence in fact established that it had not been possible despite the existence of the order to comply with it fully in particular difficulties were experiences in obtaining the numbers of staff required for a premises such as Ballydowd No distinction moreover was drawn in the order between those the premises at Castleblayney where the court considered that there had been culpable delay and other premises where there was no indication that the delay was culpable On behalf of the respondents Mr Gerard Durcan SC submitted that insofar as the arguments of the appellants as to locus standi were grounded on the claim that the relief sought did not address the specific problems of individual applicants they were misconceived Such arguments were relevant not to the issue of locus standi as such but to the appropriateness of the relief claimed It was not disputed that the applicants had a bona fide interest or concern in seeking adequate and suitable facilities and services and accordingly they met the test laid down by this court in Society for the Protection of the Unborn Child Ireland Limited v Coogan 1989 IR 734 It was in those circumstances not relevant that the order made by the trial judge would not benefit the particular applicants if that were the fact As to the submission that there was no evidence tendered on behalf of the applicants as to their particular circumstances or needs it was submitted that this disregarded the fact that each of the applicants had appeared in the High Court on a number of occasions before the learned trial judge who would have had the benefit of many reports in regard to their circumstances the situation of each applicant was well known and had been dealt with by the court on a number of occasions It was further submitted that it was clear from the evidence of Mr O Cillin that he would expect all of the applicants to benefit from the facilities in respect of which the injunction was being sought It was submitted that there was ample evidence on which the trial judge could have arrived at the conclusion that each of the applicants had sufficient locus standi and that accordingly that finding should not be set aside As to the argument that the granting of the order constituted a violation of the doctrine of the separation of powers enshrined in the Constitution he submitted that the courts not only had a right but an obligation to supervise or interfere with the exercise by the Government of its executive functions if the Government was acting otherwise then in accordance with the provision of the Constitution He cited in support the observations of Fitzgerald C J in Boland v An Taoiseach 1974 IR 338 of Finlay C J in Crotty v An Taoiseach 1987 IR 713 and of Hamilton C J in McKenna v An Taoiseach 2 1995 2I R 10 Mr Durcan further submitted that since it was accepted by the appellants that the High Court had extensive powers to ensure the protection of constitutional rights as laid down by this court in the State Quinn v Ryan the issue raised in these proceedings was as to how the court should have used those powers to ensure the upholding of constitutional rights That required a consideration of the nature of the constitutional right in question the nature of the failure to vindicate that right and of how best such a breach could be remedied He submitted that an analysis conducted in that manner could only lead in the present case to a conclusion that damages would not be an appropriate remedy where as here the right was positive in nature i e a right to have provided adequate services and facilities catering for the special needs of the applicants He cited in support of that proposition the decision of the United States Supreme Court in Brown v Board of Education 347 US 483 and Brown v Board of Education 2 349 US 294 where the court remanded the issue of the full implementation of the constitutional principles to local district courts That case demonstrated as did the decisions in Boland and McKenna 2 that while the primary obligation to uphold the constitutional right of the claimant might rest on a particular body in this case the executive circumstances could arise where the court was obliged to intervene not simply by interfering with the actions of the body but also by supervising those actions He further submitted that this was not a question of the court making policy in violation of the separation of powers but rather of ensuring that a policy was adopted and implemented which would remedy the breach of the Constitution In this case the legitimate concern of the High Court was to ensure that the rights of the applicants were vindicated with suitable expedition within that framework it remained for the State to determine how best to satisfy those constitutional rights As to the submission that the court had no jurisdiction to grant a mandatory injunction of this nature he submitted that while this might be so in an ordinary l is inter partes different considerations arose where the court was being asked to ensure the proper protection of constitutional rights Nor was it a case in which as the defendants claimed the court had failed properly to balance the interests of the parties in a proportionate manner the damage suffered by the applicants in the present case as a result of the absence of the facilities was real and substantial and given that the appellants themselves had framed the programme which the order of the court required them to implement within the specified time it could not be said that it imposed a disproportionate burden on them As to the objection that compliance with the injunction would require constant supervision by the court he submitted that this alleged difficulty was overstated the obligations imposed on the applicants by the order were clear and specific and in accordance with their own programme and there should be no need for any supervision of their compliance The fact that they would have to come to court if they proposed to depart from the time scale prescribed by the court meant that they were in no different position from any other party who was the subject of an injunction and who sought to have its terms varied Mr Durcan submitted that the appellants were in effect saying that the courts were precluded from granting mandatory injunctions so as to ensure that the other organs of government carried out their constitutional duties If that were the law it would mean that the courts would be powerless to ensure the upholding of the Constitution In fact he urged the courts had on more than one occasion recognised that circumstances could arise in which the courts would grant mandatory relief as against the other organs of government citing Byrne v Ireland 1971 IR 241 In the present case the only way in which the applicants rights could be upheld was by the granting of such a mandatory injunction The Constitutional Rights of the Applicants The right claimed on behalf of each of the applicants can be defined as a right to be placed and maintained in secure residential accommodation so as to ensure so far as practicable his or her appropriate religious and moral intellectual physical and social education No such right is expressly recognised by the Constitution and to the extent that it exists it must be as one of the unenumerated personal rights guaranteed under Article 40 3 1º of the Constitution in accordance with the construction of that article adopted by the High Court and this court in Ryan v The Attorney General 1965 IR 294 Article 42 1 of the Constitution provides that The State acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide according to their means for the religious and moral intellectual physical and social education of their children Article 42 5 provides that In exceptional cases where the parents for physical or moral reasons fail in their duty towards their children the State as guardian of the common good by appropriate means shall endeavour to supply the place of the parents but always with due regard for the natural and imprescriptible rights of the child In G v An Bord Uchtala O Higgins C J referred to the rights of children as folows The child also has natural rights Normally these would be safe under the care and protection of its mother Having been born the child has the right to be fed and to live to be reared and educated to have the opportunity of working and of realising his her full personality and dignity as a human being These rights of the child and others which I have not enumerated must equally be protected and vindicated by the State In exceptional cases the State under the provisions of Article 40 5 of the Constitution is given the duty as guardian of the common good to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons It was also made clear by Finlay C J giving the judgment of this court in In Re The Adoption 2 Bill 1987 that Article 42 5 was not to be confined in its reference to the duty of parents towards their children to the duty of providing education for them He said In the exceptional cases envisaged by that section where a failure in duty has occurred the State by appropriate means shall endeavour to supply the place of the parents This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child In F M v The Minister for Education and Others Geoghegan J expressed the view that the right claimed on behalf of the applicant in that case broadly similar to the right asserted on behalf of the applicants in the present case was one of the unenumerated rights of children which parents were obliged to protect and uphold and that their failure to do so rendered that case an exceptional case within the meaning of Article 42 5 in which the State was obliged to uphold and protect the right In the judgments which they deliver this morning Hardiman J reserves the question as to whether this case was correctly decided and Murphy J expresses the view that it was wrong in law and should not now be followed The correctness of the decision however was not challenged on behalf of the appellants in the present case or indeed in any of the previous cases to which they were parties Geoghegan J arrived at his conclusion in FM v Minister for Education at least in part in the light of the passage I have already cited from the judgment of O Higgins CJ in G v An Bord Uchtala In his judgment Murphy J points out that the proposition there laid down by the learned Chief Justice was not expressly assented to by a majority of the court It is also clear that the passage in question is an application to the particular case of children of the doctrine of unenumerated rights first laid down by the High Court and endorsed by this court in Ryan v Attorney Gen eral The implications of that doctrine have not at this stage been fully explored by the courts Two questions in particular merit further consideration The first is as to the criteria by which the unenumerated rights are to be identified In the High Court in that case Kenny J said that there were many personal rights of the citizen which flow from the

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  • 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

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  • Constitution and the detailed provisions in relation to education were explained by Professor Gerard Quinn in his essay Rethinking the Nature of Economic Social and Cultural Rights in the Irish Legal Order in Fundamental Social Rights 2001 edited by Costello C at p 49 in the following colourful terms De Valera cleverly genuflected before socio economic rights but made sure to insert them into a part of the Constitution that is unenforceable by the courts Article 45 on Directive Principles of Social Policy One socio economic right escaped into the hard text Article 42 on the right to education Its presence in the text has more to do with history than with logic The intention of the British in the 1830s was to set up and find a network of free primary schools on a purely non denominational basis This was fiercely resisted by all Churches In the compromise that ensued the State agreed to pay for the education and the religious bodies agreed to provide it The main intention of Article 42 seems to have been to copperfasten this historic arrangement between Church and State There are as I would see it serious arguments against inferring the existence of positive socio economic rights apart from the anomalous rights relating to education but there are impressive authorities to the contrary The immediate authority for the making of the order by Kelly J was the decision of Mr Justice Geoghegan then a judge of the High Court in FN v Minister for Education 1995 1 I R 409 In the circumstances of that case Geoghegan J held that where there was a child with very special needs in respect of accommodation maintenance and sustenance which could not be provided by his parents or guardians there was a constitutional obligation on the State under Article 42 5 of the Constitution to cater for those needs That judgment was in turn based upon the decision of this Court in G v An Bord Uchtála 1980 I R 32 There are far reaching observations contained in some of the judgments delivered in that case which do support the conclusions reached by Geoghegan J What is a matter of concern is that some of these observations do not appear to have been essential to the decision of the Court and furthermore may not have represented the views of the majority My concern is reflected in the comments of Henchy J at p 83 when he said The single issue arising from those facts is whether in pursuance of s 3 sub s 2 of the Adoption Act 1974 the Adoption Board should be authorised to dispense with the consent of the plaintiff mother in the making of an adoption order in favour of the couple the notice parties to whom the child was given for adoption Insofar as opinions or observations on wider and unargued topics emanate from this case I do not wish my silence on those obiter dicta to be taken as concurrence In considering the rights of an illegitimate child where an order was sought authorising the Adoption Board to dispense with the consent to adoption of the natural mother O Higgins C J went on to identify the nature of the child s rights at p 55 56 in the following terms The child also has natural rights Normally these will be safe under the care and protection of its mother Having been born the child has the right to be fed and to live to be reared and educated to have the opportunity of working and of realising his or her full personality and dignity as a human being These rights of the child and others which I have not enumerated must equally be protected and vindicated by the State In exceptional cases the State under the provisions of Article 42 s 5 of the Constitution is given the duty as guardian of the common good to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons In the same way in special circumstances the State may have an equal obligation in relation to a child born outside the family to protect that child even against its mother if her natural rights are used in such a way as to endanger the health or life of the child or to deprive him of his rights In my view this obligation stems from the provisions of Article 40 s 3 of the Constitution In G v An Bord Uchtála Walsh J reaffirmed a distinction which he had drawn in McGee v The Attorney General 1974 I R 284 between constitutional rights on the one hand and natural or human rights on the other and then went on to say at p 69 Not only has the child born out of lawful wedlock the natural right to have his welfare and health guarded no less well than that of a child born in lawful wedlock but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth The child s natural rights spring primarily from the natural right of every individual to life to be reared and educated to liberty to work to rest and recreation to the practice of religion and to follow his or her conscience The right of life necessarily implies the right to be born the right to preserve and defend and to have preserved and defended that life and the right to maintain that life at a proper human standard in matters of food clothing and habitation It does not appear that Kenny J accepted this fundamental distinction At page 97 of the report having quoted a passage from The State Nicolaou v An Bord Uchtála 1966 I R 567 dealing with Article 40 of the Constitution he went on to say It seems to me that in

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  • 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 slippag e 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

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  • put in for hearing on the 16th December 1999 Evidence was heard from four officials on that day and the matter adjourned until the 21st December 1999 According to Counsel for the applicant the issue before the Court at that stage was Your Lordship now has to judge just about eighteen months later what progress has been made and whether that is sufficient whether what the State has done is sufficient of vindication of the constitutional rights of the children in question 42 In the course of his submissions counsel for the applicant canvassed the options open to the Court including the grant of injunctions But he did not seek the relief later granted and neither was it sought in pleadings 43 When counsel for the applicant had finished his submissions the learned trial judge enquired Are you at this stage applying for injunctions in respect of the other facilities so as to put them on the same standing as the facilities that were the subject of the injunction already 44 Having taken instructions counsel for the applicant said I will apply for an injunction and I will apply for it on this basis I believe that all the possible remedies should be available from today all the options should be available Clearly if there was no application before the Court your Lordship would still have an inherent jurisdiction to deal with it 45 Counsel for the State acknowledged that there had been a loss of time in carrying out the State s intended provision of secure places but that the commitment to provide them remained The nature of the delays was discussed in some detail and the learned trial judge intimated that he considered there had been culpable delay Counsel said that The problems are not one of will or means but there have been genuine difficulties in advancing projects for reasons which have nothing to do with the finance or the intention or wishes of the Department Nevertheless it is hoped that the schedules which now appear before your Lordship can be and will be adhered to 46 The learned trial judge then said If that is the case then you would not have any real objection to injunctions being granted which would ensure that you comply with the time limits which you have now put before the Court 47 Counsel for the State dissented from this In further argument he queried the jurisdiction to grant injunctions making mandatory the completion of facilities in accordance with the time scale mentioned The learned trial judge described this as a very technical point and Counsel said that it had not been taken except in the context of the suggestion that an injunction may be granted He said that he had first heard of that proposal on that morning and that apart from the reliefs claimed in the pleadings no other injunction was notified to me without any disrespect intended to the Court If I had felt that so far reaching a consequence was a possibility arising out of today s hearing that I would certainly have directed myself much more particularly towards the law which might be applicable to it 48 The learned trial judge on several occasions described objections to jurisdiction to grant an injunction and to the locus standi of the plaintiff to seek such relief as technical points now raised for the first time Referring to the previous history of the T D case he said The understanding throughout was that Mr D s case was that was the case in which the application was heard that it was really with a view to dealing with the national situation that this matter was brought back from time to time This is the very first time the State has taken this very technical point 49 On the 21st December the learned trial judge gave an interim judgment in which he discussed the delays that had arisen and said I think this has been a substandard performance on the part of the Department of Health and Children 50 He held What I am going to do is permit the Applicant to set down notice of motion not merely in the D proceedings but in all of the proceedings one single motion which can be entitled in all of the proceedings so a technical objection taken by the Minister can no longer have any effect This motion can be set down for early next term in which you can spell with precision injunctive relief What I have in mind is that you will seek injunctions which will accord precisely with what has been put before me by way of sworn evidence from the Department of Health concerning the facilities which are to be provided and the time within which they are to be provided I am not interfering with departmental policy I am merely taking steps to ensure that if such an injunction is granted it will simply mean that the departmental word will be its bond 51 Subsequent to this hearing the solicitor for T D on the 10th January 2000 wrote to other solicitors with clients in a similar position He said We confirm over the past number of years Mr Justice Kelly has carried out a general Inquiry in relation to the adequacy of residential places for children requiring same and this is being carried out in the context of the T D case 52 He later said Please note Senior Counsel in this case has requested me to write to your good selves to seek agreement from the solicitors on record in proceedings for a residential placement for children that this motion can also be brought in their particular proceedings 53 On the 12th January 2000 the solicitor for T D issued a motion with the title that these proceedings presently have referring to the T D case and eight other cases He sought a An order directing the second and fifth named respondents in the first entitled proceedings to take all steps necessary and to do all things necessary to facilitate the building or opening a maintenance of secure and high support units in accordance with the proposed arrangements set out in a report furnished to the High Court on the 16th December 1999 by the Department of Health and Children b The further or in the alternative an order directing the second and fifth named respondents in the first entitled proceedings to take such steps as to this Court may seem fit and proper and within such time as to this Court may seem fit and proper to ensure that there is adequate and proper secure and high support accommodation available for the Applicants and for other children with similar needs for such secure and high support accommodation c Such further and other relief as to the Court may seem just and equitable d An order providing for the costs of this application 54 At the renewed hearing on the 18th January 2000 both counsel for the State and one of his witnesses came under considerable pressure to give an undertaking or explain why an undertaking would not be given Objection was taken to the grant of an injunction on the basis of the extent of the Court s powers as opposed to that of the Executive and it was pointed out that the issue is one with implications which have gone far wider than are presented by the issues of this case It was also submitted that a court in granting the injunction would be intervening in matters of policy It was agreed that a proposed injunction was in a form based on the Department s own statement of its intentions but it was submitted that it was objectionable to require the executive to apply to the Court in the event that it wished to change its policy It was also submitted that the injunction was in a form which would not normally be granted having regard to the difficulty of supervising the works in question in detail Evidence with regard to the other Applicants 55 In relation to the applicants other than T D a brief summary of the position of each of them was given in the evidence of Mr Ó Cillín on the 18th January 2000 D B was then in Trinity House and It is hoped to operate a support at work and home programme if he co operates with it M B had been in Newtown House since 1997 on a full time residential placement and she was receiving education on campus G D was also in Newtown House having previously been in a remand and assessment centre G D had been for a number of years in Crosbies House in Palmerstown where the Health Board had arranged for one to one tuition for him In 1999 he was deemed suitable to attend school outside the Centre and was enrolled in a school where he had the support of an additional teacher appointed to the staff himself and one other boy However his behaviour deteriorated seriously and he had been absenting himself from Crosbies and was at the time of the hearing in Oberstown House P H had been identified as having a learning difficulty and was initially placed in a facility in Churchtown sponsored by the Eastern Health Board and subsequently in another facility Tuition was supplied to him there In the October part of the hearing he was following a course in a special school in Blackrock but just before Christmas he ceased attending there and is believed to be back with his mother at home V J was at the time of the hearing in St Lawrences Industrial School as a result of a recommendation of a case conference T L had been the subject of a Fit Persons Order since March 1995 On foot of this she resided in Trudder House in Wicklow for two separate periods and was placed in Oberstown in June 1997 She then remained in another Eastern Health Board facility Kilinarden House where she was until shortly before the hearing She was the subject of a care order to last until the day prior to her eighteenth birthday and at the time of the hearing had been transferred to another Eastern Health Board Unit in Whitehall which operated a semi independent regime According to the witness she would be moving from full care environment to semi independent in preparation for living in the community S T was someone who gave rise to huge difficulty He was receiving one to one tuition for a period of time and in 1997 was enrolled in a special school There was a place for him in that institution at the time of the hearing but he did not want to attend He was then placed in a Health Board facility with a view to his attending the special school from there but he declined to do so 56 The learned trial judge reserved judgment until the 25th February 2000 On this occasion he delivered a lengthy written judgment and made the following order THE HIGH COURT JUDICIAL REVIEW Friday the 25th day of February 2000 BEFORE MR JUSTICE KELLY 1997 No 461 JR BETWEEN T D A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M D APPLICANT AND THE MINISTER FOR EDUCATION IRELAND AND THE ATTORNEYGENERAL THE EASTERN HEALTH BOARD AND BY ORDER THE MINISTER FOR HEALTH AND CHILDREN RESPONDENTS etc as in title hereof The Return to the Order herein dated the 21st day of December 1999 wherein IT IS ORDERED that the Applicant in the first entitled proceedings herein be at liberty to apply by way of Notice of Motion for injunctive relief on behalf of all the Applicants in the above entitled proceedings coming on for hearing before this Court on the 18th and 19th days of January 2000 Whereupon and on Reading said Order the Notice of Motion on behalf of all the Applicants in the above entitled proceedings filed on the 13th day of January 2000 the Affidavit of Pol ó Murchu filed on the 13th day of January 2000 the Affidavit of Ruairi ó Cillín filed on the 17th day of January 2000 and on hearing the oral evidence of Eamon Corcoran and Ruairi ó Cillín and on hearing Counsel for the Applicants and Counsel for the Minister for Education and Science Counsel for the Minister for Health and Children and the Eastern Health Board namely the first fifth and fourth named Respondents respectively in the first entitled proceedings And the Court reserving its judgment And the matter coming on for judgment on the 25th day of February 2000 IT WAS ORDERED that the first and fifth named Respondents in the first entitled proceedings do in relation to all the aforesaid entitled proceedings take all steps necessary to facilitate the building and opening of secure and high support units and places as follows 1 a Two six bedded high support units with ancillary educational facilities at Castleblayney in the County of Monaghan on or before the 31st December 2001 b A five bed high support unit at Moyhill in the County of Clare on or before the 31st July 2000 c A five bed high support unit at Elm House in the County of Limerick on or before the 31st October 2000 d A five bed high support unit in the functional area of the Mid Western Health Board on or before the 31st July 2001 e A five bed high support unit in the County of Clare on or before the 31st July 2001 f A five bed Special Care Unit for boys in the Mid Western Health Board region on or before the 31st December 2001 g An additional h high support places in the Waterford region on or before the 31st May 2000 h An additional high support place in the functional area of the South Eastern Health Board on or before the 31st May 2000 i An additional two Special Care Units for girls in the Gleann Alainn unit in County Cork on or before the 31st July 2001 j A five bed high support Unit for boys in the Southern Health Board region on or before the 31st August 2001 THE HIGH COURT And the Court ORDERED that the Applicants in all the aforesaid entitled proceedings do recover against the Respondents their costs including reserved costs arising from the hearing of those proceedings IT WAS FURTHER ORDERED that execution on foot of the aforesaid Order be stayed for one week Liberty to the first and fifth named Respondents as per the aforesaid first entitled proceedings on 72 hours notice to seek variation in the terms of the aforesaid injunction relief granted And the matter coming on for mention on this day Whereupon and on hearing Counsel for the respective parties IT IS ORDERED that the aforesaid stay on the injunctive relief granted and on the order for costs be lifted Liberty to apply The form of order 57 This order is in places somewhat oblique in form but is unambiguously mandatory in substance I am not clear what meaning is to be attached to the bracketed words in relation to all the aforesaid entitled proceedings The facilities set out in the lettered paragraphs far exceed those required on any view for the applicants named in the titles But the general effect of the order is clear the specified facilities are to be built and opened by the dates specified The two ministers are to to take all steps necessary to facilitate this building and opening Having regard to the context and to the evidence given this can only mean that they are to secure the sites where necessary pay for and procure the building and staff the premises and ensure their opening 58 To order the building and opening of ten units and additional places in others is easily done The order however is virtually silent on the manifold steps and decisions which arise in every building project What does take all steps necessary to facilitate the building and opening of units by particular dates in practise To address only the difficulties described in evidence is planning permission to be sought even if the process involves exceeding the time limits Is VAT to be paid or not on the transfer from one department to another and who is to determine this Again are the units to be staffed regardless of the effect this may have on wage negotiations What if there are no or insufficient applicants 59 These matters and others are not addressed specifically at all and are addressed generally only in that there is liberty to apply for variation Does this mean that the Court will resolve all such problems and make decisions on its own responsibility 60 These and other matters lead me to think that there may be much substance in the defendant s contention that this form of injunction is outside the scope of relief a court can afford by reason of the difficulty of policing it and enforcing it in detail 61 I also believe that the applicants locus standi to seek the injunctive relief claimed in the notice of motion of the 12th January has not been established I have no doubt that T D had locus standi to seek the reliefs claimed in his original proceedings of the 2nd of February 1998 all of which were personal to himself While the proceedings taken on behalf of the other eight were not opened to us I have no reason to believe that they exhibited any absence of locus standi or that the reliefs claimed were other than personal For the reasons given by the learned Chief Justice I too am satisfied that the these applicants have sufficient locus standi to raise the more general issues of public importance as to the nature of the remedy available in such cases But I do not believe that the evidence provided orally or on affidavit in support of the relief claimed in the notice of motion of the 12th January 2000 is sufficient to show any entitlement in these applicants as a group or in any one or more of them individually to the relief granted 62 In fact the relief claimed in the notice of motion was heavily influenced by what the learned trial judge said at the end of the hearing on the 21st December 1999 Having granted leave to issue the notice of motion he said What I have in mind that you will seek injunctions which will accord precisely with what has been put before me by way of sworn evidence in the Department of Health concerning the facilities which are to be provided and the time within which they are to be provided 63 In other words the individual applicants were to seek not the facilities which it was alleged that they themselves required but a mandatory injunction in relation to the entire facilities which on departmental policy as it then stood were required to meet overall needs 64 No applicant that I am aware of and certainly not T D had previously sought to enforce a national or overall solution in this fashion Subsequent to the 31st December 1999 the solicitor for T D in effect canvassed other solicitors to permit their clients to be joined in this application The learned trial judge thus suggested the form of relief to be sought by the applicants in the joint motion 65 On the hearing of the motion no evidence was led as to the then needs of T D despite an invitation to do so The Court was given the brief summary comprehensively summarised above in relation to the other applicants but there was no sufficient evidence in my view that the facilities directed to be built by the time directed would meet the needs of the applicants or any of them 66 Accordingly I do not believe that the applicants individually or as a group have l ocus standi to apply for the order suggested by the learned trial judge Additionally I do not believe that the evidence led on the hearing of the motion established an entitlement in the applicants individually or as a group to the relief actually granted 67 I do not believe that the plaintiff s claim to these reliefs is supported by the locus standi which the plaintiff was found to have in Crotty v An Taoiseach 1987 IR 713 There the plaintiff challenged the purported ratification by the State of the Single European Act It was found by the Supreme Court that he had locus standi to challenge the Act in the circumstances where its coming into force would affect every citizen notwithstanding his failure to prove any special injury or prejudice peculiar to himself In this case the applicants originally alleged specifically injury and prejudice to themselves and undoubtedly had the locus standi to do so But the specific relief claimed in the notice of motion of the 12th January 2000 far exceeds anything relevant to themselves individually or as a group On the other hand it is not a form of relief against a development which would affect every citizen that is the community as a whole It is a form of relief designed to ensure that a specific policy would be carried out and could not be changed without the assent of the Court 68 But it would be inadequate to resolve the present appeal on this or any other purely technical or incidental point The salient issue raised by the order is whether consistently with the regime of separation of powers contained in the Constitution and the functions attributed to each organ of government a mandatory order in this form can in principle be granted by the Courts against the executive branch Separation of powers nature of the issue 69 The question of whether relief of a particular kind is within the power of a court to grant or on the other hand to borrow the phrase of Costello J in O Reilly v Limerick Corporation 1989 ILRM 181 it is of a kind which must be sought in Leinster House and not the Four Courts involves the application of the constitutional doctrine of the separation of powers It has nothing to do with the merits or otherwise of the separate question of whether it is desirable that the provision in question should be made 70 The question of whether the courts can order that particular steps be taken or whether the matter at issue is one within the constitutional scope of the legislature or executive has arisen on a number of occasions In addition to the cases cited in the judgment of the learned Chief Justice recent examples include Sinnott v The Minister for Education and Ors Supreme Court unreported 12th July 2001 and North Western Health Board v W Supreme Court unreported 8th November 2001 Much public commentary in such cases took as its starting point the commentator s view of the merits or otherwise of the underlying issue and the issues themselves have been as diverse as whether the State should become a party to the Single European Act and what provision is proper to be made for autistic children But the question whether a particular issue is within the remit of the courts the legislature or the executive is a quite different question raising quite different issues If the judiciary the legislature or the executive took to themselves powers to deal with a particular issue simply on the basis that it provoked very strong feelings in the relevant organ and that it had not in the opinion of that organ been adequately addressed by the other organs of government there would be grave danger of subversion of the constitutionally mandated separation of powers Thus for example in the leading case of Buckley v Attorney General 1950 IR 67 the executive and the legislature claimed it was not simply desirable but imperative that a particular action at law be removed from the sphere of the judicial power and dealt with according to specially introduced legislation But the sincerity and vehemence with which this view was held did not clothe the action taken on foot of it in constitutionality Nor did what was perceived to be the wholly exceptional nature of the case justify the removal from the courts of an action of which they were properly seised 71 The concept of the separation of powers is an essential part of the Constitution of virtually all democratic societies and of the democracy envisioned by the Constitution of Ireland in particular If the courts or either of the other organs of government were to disregard it in a particular case they would expand their own powers at the expense of those of the other organs of government This would be an unconstitutional proceeding quite impossible for judges whose declaration obliges them to uphold the Constitution In Sinnott v The Minister for Education and Ors I set out at some length my views on this topic and I would repeat what I said there by way of an introduction to the resolution of a similar issue in this case I wish to reiterate in particular that the question is the very reverse of a purely technical one In Buckley and Ors v Attorney General the former Supreme Court said at page 81 The manifest object of Article 6 was to recognise and ordain that in this State all powers of government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative executive and judicial organs of the State and to require that these powers should not be exercised otherwise The subsequent articles are designed to carry into effect this distribution of powers Emphasis added 72 If the courts were to depart from this imperative requirement in one case moved perhaps by a great wave of sympathy for the plight of a particular plaintiff they would naturally and even logically be asked to do so in many other cases by persons whose plight was no less affecting Such a course would represent the arrogation by the courts to themselves of powers which the Constitution vests elsewhere 73 It would of course be possible by constitutional amendment or by the adoption of an entirely new constitution to vest the courts with powers and responsibilities in social economic and other areas which are presently the preserve of the other organs of government This perhaps would give immediate satisfaction to those who thought the courts more likely to adopt their views of the merits of certain social or economic questions than the legislature or executive But it would vest responsibility in these areas in a body without special qualifications to discharge it which if its views fell into disfavour would not easily be replaced by another more congenial It would also render technical and legalistic discussions which should properly be conducted in quite a different manner And if courts extend their powers to questions which are essentially political they will soon either fossilise developments on such issues or lose that basis in formal and technical logic and consistency which is an essential hallmark of legal though not necessarily of political discourse In a work whose very title Government by Judiciary Harvard University Press 1977 is suggestive on this topic the distinguished scholar Raoul Berger wrote in an American context The present generation floating on a cloud of post Warren Court euphoria applauds a Court which read its libertarian convictions into the fourteenth amendment forgetting that for generations the Court was harshly criticised because it transformed laissez faire into constitutional dogma in order to halt the spread of socialism Nature of the separation of powers 74 The concept of the separation of powers can be traced to antiquity and to the distinction elaborately expanded by Costello J as he then was in O Reilly v Limerick Corporation between distributive and commutative justice Its modern history however dates from the first stirrings in the seventeenth century of the view that the power to govern was not properly based either on the hereditary principle or on naked force but on some form of consent by or contract with the persons to be governed The elaboration of the theory by Montesquieu in his De l Esprit des Loix 1748 was influential with the framers of the French Revolutionary Constitutions and more historically significant of the United States Constitution The principle is set out with unusual clarity in the Constitution of State of Virginia 1776 The Legislative Executive and judiciary departments shall be separate and distinct so that neither exercise the powers properly belonging to the other nor shall any person exercise the powers of more than one of them at the same time except that the justices of the County Courts shall be eligible to either House of Assembly 75 There is sometimes a tendency to confuse the separation of powers with the independence of the judiciary The latter is an essential aspect of the former but it is an aspect only The Virginian formulation emphasises the mutual independence of the different powers of government It is right that the judiciary within their constitutional sphere should be quite independent of the legislature and the executive but it is no less right that these within their respective constitutional spheres be independent of the judiciary 76 Though the principle of the separation of powers is clear its details vary from country to country in significant degrees For example a country whose executive or the head of whose executive is directly elected such as the United States will obviously have a different relationship between legislature and Executive to that prevailing in a country such as Ireland where the executive is elected by and responsible to the legislature 77 The separation of powers under the Constitution of Ireland was comprehensively described by Mr Justice Costello in O Reilly v Limerick Corporation at page 194 as follows The State is the legal embodiment of a political community whose affairs are regulated by the Constitution The powers of Government of the State are to be exercised by the organs of State established by it The sole and exclusive power of making laws for the State is vested in the Oireachtas the executive power of the State is exercised by or on the authority of the Government and justice is to be administered in courts established by law In relation to the raising of a common fund to pay for the many services which the State provides by law the Government is constitutionally responsible to Dáil Eireann for preparing annual estimates of proposed expenditure and estimates of proposed receipts from taxation Approval for plans for expenditure and the raising of taxes is given in the first instance by Dáil Eireann and later by the Oireachtas by the enactment of the annual Appropriation Act and the annual Finance Act This means that questions relating to raising common funds by taxation and the mode of distribution of common funds are determined by the Oireachtas although laws enacted by the Oireachtas may give wide discretionary powers to public authorities and public officials including Ministers as to their distribution in individual cases 78 This passage is based on constitutional provisions which in my opinion are clear and unambiguous Article 15 2 1 of the Constitution provides The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas no other legislative authority has power to make laws for the State 79 In relation to the expenditure of public monies Article 17 2 of the Constitution provides Dáil Eireann shall not pass any vote or resolution and no law shall be enacted for the appropriation of revenue or other public monies unless the purpose of the appropriation shall have been recommended to Dáil Eireann by a message from the Government signed by the Taoiseach 80 Article 28 2 provides The Executive power of the State shall subject to the provisions of this Constitution be exercised by or under the authority of the Government 81 Article 28 4 1 provides The Government shall responsible to Dáil Eireann 82 These Articles locate the power to make laws and to appropriate public monies to particular purposes in the non judicial arms of government The exercise of the executive power is vested in the Government which is responsible to Dáil Eireann On the ordinary principles of construction I believe that this responsibility is an exclusive one the Government is not in this respect responsible to any other person or body As appears from the citation earlier in this judgment from Buckley and Ors v The Attorney General these Articles combined with Article 6 not merely set forth the distribution of powers but they require that these powers should not be exercised otherwise I agree with the observations of Murray J in this case to the effect that the order under appeal would tend to undermine the answerability of the executive to Dáil Eireann and thus impinge on core constitutional functions of both those organs of State In my view those observations are clearly borne out by the passage which follows them in the judgment of Murray J 83 In my judgment in Sinnott I gave a number of reasons why the courts could not assume the policy making role in relation to the multitude of social and economic issues which form the staple of public debate I said at page 56 Firstly to do so would offend the constitutional separation of powers Secondly it would lead the Courts into the taking of decisions in areas in which they have no special qualifications or experience Thirdly it would permit the Courts to take such decisions even though they are not and cannot be democratically responsible for them as the legislature and the executive are Fourthly the evidence based adversarial procedures of the Court which are excellently adapted for the administrative of commutative justice are too technical too expensive too focused on the individual issue to be an appropriate method for deciding on issues of policy 84 This list is by no means exhaustive One might add that if the courts or either of the other organs of government expand their powers beyond their constitutional remit this expansion will necessarily be at the expense of the other organs of government It will also be progressive If citizens are taught to look to the courts for remedies for matters within the legislative or executive remit they will progressively seek further remedies there and progressively cease to look to the political arms of government Such a development would certainly downgrade the political arms of government and just as significantly it would tend to involve the courts progressively in political matters This cannot be permitted to occur The mandatory procedures whereby the courts give judgment only on legal evidence almost always heard in public and legal submissions necessarily often technical do not remotely equip them to evolve and to alter policy Their necessary immunity from election and from popular approbation or the reverse make them quite unfitted to direct the expenditure of public funds 85 In my view the courts in their own interest and for the protection of their legitimacy in the discharge of their proper role should be reluctant even to appear to trespass on the spheres of the political organs of government Commenting on a similar but much more acute development in the distinctive jurisprudence of the United States Justice White giving the Opinion of the United States Supreme Court said in Bowers v Hardwicke 478 US 186 at 194 The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge made constitutional law having little or no cognisable roots in

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