Judges return special needs decisions to politicians


Following the Sinnott judgment, it was probably not surprising that the Supreme Court would reassert the separation of powers and set limits on the capacity of the courts to order the Government to do things.

The implications of that route were spelled out by Mr Justice Hardiman when he warned: "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."

This is precisely what has been happening. In recent years, certain categories of people have despaired of the capacity of the government of the day - and the issues have survived many changes of government - to address their problems. The parents of children with special educational needs or disabilities spent years treading the weary path to politicians' clinic doors. Some of them even stood for election to highlight the absence of any facilities for their children. Eventually, they went to the courts and found that their children did have constitutional rights, and the Executive was obliged to uphold them. Then those concerned with the absence of any provision for highly-troubled children, whose early lives had left them with behaviour very difficult for the existing institutions to cope with, helped them to seek the vindication of their rights in the courts.

Following dozens and dozens of such cases, many of them heard by Mr Justice Kelly, the State put in place a plan of action, which included the establishment of a Special Residential Services Board. But there is still a shortage of places, and children are still coming before the courts.

This was the context in which Mr Justice Kelly ordered the State to abide by its earlier commitments and build and bring into operation a number of special units for such children.

The State appealed eight of these orders, and the Supreme Court yesterday upheld its appeal. It sent a clear signal that, when it comes to decisions on how the resources of the State are to be allocated, the Executive has the right not only to decide, but to change its mind, without any interference from the judiciary. If people want a different allocation, they must address themselves to the political process.

Few people, either lawyers or members of the public, would argue with this principle. Judges are not elected to run the country. But people also know that politicians do not always, wittingly or unwittingly, uphold the Constitution. The issue is what to do if an individual's constitutional rights are not vindicated by the State.

The judgments of the Supreme Court majority have concentrated on Mr Justice Kelly's orders, introduced after years of foot-dragging by the State. They went too far, according to the court. However, it was pointed out that the court may make declarations that certain actions of the Executive are unconstitutional, and the Executive can, and usually does, undertake to remedy the omission in question. So recourse to the courts remains possible, even if the remedy is less definite.

But there may be another way. Mr Gerard Whyte, lecturer in constitutional law in Trinity College, pointed out that the political system has the mechanism of a constitutional referendum to reverse a decision of the Supreme Court that went too far in intruding on the Executive's territory.

There have been such referendums, on issues as diverse as bail, abortion and voting rights for non-citizens. But what government would propose a referendum that the State had no obligation to look after disturbed children?