Professor Gerard Whyte:

To pick up on the point of interfering with the Legislature and the Executive and to go back to the point I made earlier, we envisage the courts would use the reasonableness standard the Constitutional Court of South Africa has used. This would give rise to a dialogue whereby the courts would indicate whether there was a problem with a particular policy that needed to be addressed and the matter would be passed back to the other two organs of government. We have had experience of this in our Constitution in a different context. If we look at the guarantee of the right to free primary education, in the mid-1990s the High Court in the O'Donoghue case drew attention to the fact that existing educational policy at the time was falling short of the constitutional guarantee because it did not provide properly for children with severe or profound learning difficulties. Mr. Justice O'Hanlon granted a declaration in the High Court to this effect and ultimately it led to the adoption of State policies providing appropriate support for children at the more severe end of the learning difficulty spectrum.

That is a good example, which we have in our constitutional order, of how the courts, the Legislature and the Executive would dialogue about the problem, leaving it ultimately to the Legislature and the Executive to come up with a particular solution.