Case tested entitlement of courts to intervene in policy matters relating to State services

When the Minister for Education decided to appeal the High Court judgment in the Sinnott case, he made it clear he was doing …

When the Minister for Education decided to appeal the High Court judgment in the Sinnott case, he made it clear he was doing so on a matter of principle, not because he wanted to take away from Mr Sinnott and his mother what the court had awarded them.

He was concerned about the implications of the judgment, especially its finding that education should be provided for as long as a person would benefit from it.

Yesterday, the Supreme Court set his mind at rest on this. It found, by six to one, that the right to primary education ended at the age of 18. The Chief Justice, Mr Justice Keane, saw no justification for this cut-off point.

Although asked to rule on the age at which the entitlement to education ends, the most fundamental issue tested by the court was the entitlement of the courts to intervene in policy issues relating to the provision of services by the State.

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This could have implications for the future, especially in relation to the provision of services to other children with special needs, and to the provision of health services to people who have been denied them by delays and overcrowding, like Ms Janette Byrne who went to court seeking cancer treatment last month.

In this case Mr Justice Hardiman spelt out in great detail the implications of the doctrine of the separation of powers.

The Chief Justice agreed, pointing out that defects in the system are not necessarily remediable by the courts. That would involve the judicial arm usurping the function of the Oireachtas, he said.

According to this constitutional doctrine, which is fundamental to the nature of the State, the powers of the legislative, executive and judicial arms of the State are separate, though complementary. However, the courts have a unique, and central, role in upholding the Constitution and Mr Justice Keane hinted that the Sinnotts could return to court if their rights were further infringed.

Mr Justice Hardiman was very critical of the High Court judge, Mr Justice Barr, who had prescribed in detail what Mr Sinnott's educational programme should involve and demanded it be provided by mandatory order. This kind of order was effectively an instruction to the State, and this, he felt, contravened the doctrine of the separation of powers.

He said in the O'Donoghue case Mr Justice O'Hanlon issued only a declaratory order, merely stating what was required "in the expectation that the institutions of the State would respond by taking whatever action was appropriate to vindicate the constitutional rights of the successful applicant".

But this did not happen. Instead the State dragged its feet on taking appropriate action, and was even rebuked by the court for delaying an appeal, which it eventually abandoned.

That case, and the attitude of the Department of Education to Ms Sinnott in her long campaign to obtain suitable education for her son, where every imaginable obstacle was placed in her way, clearly informed the judgment of Mr Justice Barr. He described the attitude of the State as "a widespread malaise".

Even now, after Ms Sinnott has been dragged through the courts over four years, dozens of other parents are waiting to go to court to have the rights of their autistic children to an education vindicated.

There has been concern in Government and some legal circles for some time at the increasing role of the courts in intervening in what are perceived to be matters of policy. This, however, could have been avoided by the State taking a more proactive role in ensuring that the rights of citizens to special education and other services were met.

It is questionable whether it is the Oireachtas and the Executive or unelected civil servants who are deciding that the needs of people like Mr Sinnott are not met.