A Supreme Court judge has concluded that the High Court went beyond its constitutional powers when it ordered Ministers to build and open a series of secure and high-support units for vulnerable children by specified dates.
The appeal concerned several cases involving minors who required specialist residential care which their families could not provide. The State did not dispute that it had constitutional obligations towards children in need of such facilities. It had adopted a national programme intended to meet those obligations.
The High Court, however, had gone further. On 25 February 2000 it ordered Ministers to take all necessary steps to deliver ten identified projects, including high-support and special-care facilities in counties Monaghan, Clare, Limerick, Cork and the Waterford region, within fixed deadlines.
The trial judge acted after repeated delays in implementing plans previously outlined to the court. He found substantial progress had been made but described some delays as culpable and administratively inefficient.
Mr Justice Murray held that the constitutional difficulty lay not in identifying the State’s obligations but in turning an executive policy programme into a binding court order.
He said courts can review executive action, declare constitutional duties and restrain unlawful conduct. What they cannot do is take command of policy implementation which the Constitution assigns to the executive and legislature.
By fixing projects and deadlines and requiring future changes to receive court approval, the High Court had effectively made itself the final administrator of the programme. That also risked undermining Ministers’ constitutional accountability to Dáil Éireann.
Mr Justice Murray said a mandatory order against the State might still be possible in exceptional circumstances involving a clear and deliberate disregard of constitutional obligations. But no such situation existed here: the High Court had expressly accepted that the relevant agencies were acting in good faith.
He would therefore allow the appeal and set aside the mandatory order.