In the wake of the recommendations of the McCarthy Report in 2009, and the subsequent cutbacks in public spending over the past 3 years, statutory bodies are now required to carry out their functions within diminishing budgets. Where the body in question is not in a position to carry out a responsibility conferred on it by statute, an action can arise for a breach of statutory duty. In such circumstances, the consequences of the breach are occasionally set out in the relevant statute. More often than not, however, it is up to the court to determine whether an action arises and if so, the extent of the ensuing remedies. Such remedies available to an applicant include damages, declaratory relief or a mandatory order. The mandatory order is the most contentious as the question arises, then, under the doctrine of the separation of powers, as to whether the courts can make such an order directing that the executive spend its budget in a certain way.
According to the development of case law in this jurisdiction, the courts are opposed to granting mandatory orders which necessitate expenditure, in situations where the respondent public body does not have the requisite resources to fulfil its functions. In an attempt to be practical, the courts have taken the approach that any such order is redundant if the body is precluded from complying by reason of impecuniosity. However, as can be discerned from the decisions discussed below, there have been inconsistencies in the application of this principle.
Mandatory Orders v Limited Resources
From early English case law, the courts there have demonstrated this unwillingness to force the hand of public bodies in terms of its budget. In a 1974 English Court of Appeal case, an applicant sought an order directing that his local authority comply with its legal duty to him to provide accommodation after he lost possession of his flat. It was found that he was not entitled to such an order. The Judge stated that, where there is evidence that a local authority is doing everything in its power to comply with its statutory obligation but has failed to do so because of circumstances beyond its control, "it would be improper for the court to make an order of mandamus compelling it to do that which it cannot do..."
In Ireland, the Supreme Court has taken an equally frank approach. However, there has been a sprinkling of High Court decisions indicating that statutory responsibilities cannot be completely disregarded due to a plea of insufficient resources. In Hoey v Minister for Justice1, it was argued on behalf of the Minister that she was justified in her failure to provide sufficient resources to the local authorities by virtue of the fact that it would incur an excessive burden and expense on the state. Mr Justice Lynch was not wholly convinced by this contention and granted the order for mandamus which was sought by the applicants. He stated that it is not open to the executive to relieve the local authority of its statutory duties and expounded the view that budgetary and financial constraints do not constitute a reprieve in law to obligations expressly imposed by legislation.
In the subsequent High Court case of FN v Minister for Education 2, while the mandatory order was granted, expense was acknowledged as a factor. Here, it was decided that the State was obliged to provide suitable accommodation and education for the applicant unless this would be so "impractical or prohibitively expensive as would come within any notional limit on the State's constitutional obligation". Mr Justice Geoghegan found in this case that it was not, but that there might be very exceptional circumstances in which the State could not be expected, even under the Constitution, to comply with a duty to provide.
In Brady v Cavan County Council 3, the legal issues dealt with by Ms Justice Carroll specifically included the question of whether a lack of resources was a defence to a claim for breach of statutory duty. Addressing these duties, which arose under the Local Government (Ireland) Act 1898, she stated that "at no stage was that statutory obligation of a local authority altered or lessened by reference to the money made available by Central Government". She noted that if an order of mandamus was not granted, there was no alternative remedy open to the applicants whose statutory rights had been breached.
She referred to the Hoey case, in which the Court held that if a local authority was in breach of their responsibilities there was a statutory obligation to force them and "budgetary embarrassment was no answer". She went on to state that "this is not a case of telling the government how it must spend money. It is a case of the Oireachtas having imposed a statutory duty on local authorities, being required to provide the means of carrying out that duty... The objection raised by the county council is that the applicants will get precedence over other similarly disadvantaged residents in County Cavan. That may well be so. But the fact is that they have applied to the court for relief and they are entitled to it. The floodgates are a problem for another day unless the statutory duties are amended."
However, when this decision was appealed to the Supreme Court 4, the majority disagreed with the High Court decision. While it was not disputed that the local authority was in breach of its statutory duty, it was held that the judge had erred in granting an order of mandamus having regard to the futility in doing so, given that the Council did not have the means to comply with the order. The court was satisfied that the Council had managed its resources in a fair and reasonable manner but a different result could apply in a situation where the body's attempts at compliance are not so laudable. The case of McC v Eastern Health Board 5 also goes to demonstrating that the courts do not operate on the assumption that public bodies have access to unlimited resources but do, in fact, take into account the fact that resources are often stretched and must be rationed.
In the seminal case of O'Donoghue v Legal Aid Board 6, Mr Justice Kelly rejected the plaintiff's claim which was based on breach of statutory duty, stating that under the terms of the Civil Legal Aid Act 1995, the Board was obliged to act only within the terms of its own resources. It was found that the statutory obligation promulgated by the Act was not an absolute one and that the Board had done everything within its power to provide for the plaintiff. Accordingly, the Board had not acted negligently nor in breach of its statutory duty. However, the judge went on to note that the plaintiff's constitutional right of access to the courts and right to fair procedures included an entitlement to be provided with legal aid. The delay in granting a legal aid certificate constituted a breach of that constitutional right and entitled her to damages if she could demonstrate a resulting loss. The Court then granted declaratory relief and damages which had been sought against the State (Minister for Justice, Equality and Law Reform). The judgment in this case is interesting as it demonstrates the lengths the Board had gone to in order to demonstrate to its parent Department the difficulties being experienced due to lack of funding.
The Separation of Powers Issue
The recurring concern of the courts in the granting of mandatory orders compelling the State to do something is that it may constitute an encroachment on the doctrine of the separation of powers. The Constitution prescribes this separation of powers between the three organs of the state – the Legislature, the Executive and the Judiciary. The doctrine ensures that no one branch of the State trespasses upon the functions attributed to the others. It is the function of the Executive to determine public spending and, consequently, there is judicial reluctance to require that the state allocate its budget in a certain way. It was stated in the landmark case of Sinnott 7 that the courts "would not grant mandatory relief requiring the Oireachtas to provide funds for a particular purpose in order to uphold the constitutional or purely legal rights of members of the public".
It has been judicially acknowledged that the courts do not wish to cross the line of policy-making as it would lead them to making decisions in areas in which they do not have the necessary expertise. Furthermore, the judiciary are not democratically responsible for such decisions. However, there may be a distinction where rights are derived from the Constitution and not just from statute.
In the late 1990s, Mr Justice Kelly, who was unimpressed with the inaction of the executive, made a number of mandatory orders with regard to the enforcement of constitutional rights of children. In DB v Minister for Health 8, he granted a mandatory injunction directing that the Minister provide funding for the building of two secure units for the treatment of children, having decided that it was within court's jurisdiction to intervene and to make such an order. In TD v Minister for Education 9, a composite of nine cases concerning children in need of secure care, he granted injunctions in relation to ten other facilities. He did, however, note that orders of this nature are not to be made in a whimsical fashion and that each branch of the State should respect each other.
These orders granted by Mr Justice Kelly in the High Court required the State to commit to substantial expenditure on specific projects. In the Supreme Court 10, these orders came under fire as being unprecedented and it was found that the making of them constituted a breach of the doctrine of the separation of powers. It was stated that the courts were concerned with commutative and not distributive justice and, therefore, it was not their function to make "assessments on the validity of competing claims on national resources". The Supreme Court did however leave open the possibility of making a mandatory order against the executive in exceptional circumstances, where there is a clear disregard of its constitutional powers and duties.
This position has recently again been acknowledged by the High Court in July 2010 in Mulligan v The Governor of Portlaoise Prison 11, where Mr Justice MacMenamin noted that the principle that the broad ordering and allocation of public resources is in general a matter for the Executive and one in which a court should be slow to become involved. In a similar vein in November 2010, Mr Justice Charleton confirmed that "issues as to the proper priority of resources were ones that should be properly left to the competent authorities that are charged with taking an overall view as to priorities and demands." 12
Conclusion
As mentioned above, mandatory orders as a remedy are problematic and consequently the courts often deem it sufficient to grant declaratory relief instead "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". The decisions in Sinnott and TD demonstrate that the Supreme Court has set narrow boundaries on what it can and cannot require the State or statutory bodies to do. The court has also shown itself to be sympathetic to public bodies that have breached their statutory duties by virtue of the fact that their resources are overreached and in situations where there is an onus on them to spend a large amount of money. TD has been cited with approval in a number of cases since the decision was made over a decade ago. However, it seems that the doctrine of separation of powers is not absolute and it may be overlooked in circumstances where there has been a clear disregard of constitutional duties on the part of the executive. In such a situation it has been stated that there is a "duty" on the part of the courts to intervene to uphold the constitution.
Footnotes
1 [1994] 3 IR 329.
2 [1995] 1 IR 409.
3 [1997] 1 ILRM 390
4 [1999] 4 IR 99.
5 [1996] 2 IR 296.
6 [2006] 4 IR 204.
7 [2001] 2 IR 505, [2001] 2 IR 545.
8 [1999] 1 IR 29.
9 [2000] 3 IR 62.
10 [2001] 4 IR 259.
11 [2010] IEHC 269.
12 [2010] 4 IR 403.
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