Irish Judicial Studies Journal

Issue Number

No. 3-22, December 2022

Latest documents

Editorial
Revisiting Old Ground - TD, Sinnott and the Dangers of Clinging Too Tightly to Separation of Powers Orthodoxy
This article seeks to reassess the TD and Sinnott cases in Irish constitutional law. It explores the context of these cases, and why they are regarded as important and closely linked in Irish constitutional discourse. It then analyses their reasoning to consider whether they withstand scrutiny after two decades. It concludes that the judgments painted with too broad a brush, reaching some questionable conclusions, drawing overly categorical distinctions between branches of government, and creating conceptual confusion.
The TD Case and Approaches to the Separation of Powers in Ireland
The case of TD v Minister for Education is a great microcosmic example of the varying philosophies of the separation of powers and the role of the judge under the Constitution and for many years it set a very high standard for the review of executive power, but perhaps the wind is changing on these issues. This article will briefly consider the various perspectives given by the judges in the TD case on the separation of powers before moving on to a more recent example to assess whether the vision of formalism espoused by the TD judgment is now falling out of favour.
Reading TD Down
This article argues that TD v Minister for Education was about something more specific than has been supposed in the academic literature. Rather than being about the justiciability of socio-economic rights in principle, or the separation of powers broadly, it was an appeal about whether a High Court judge had the jurisdiction to hand down the particular order. The order contained great policy detail and time-specificity. The article argues that the ruling in TD, when understood as such, can be readily justified as a matter of constitutional principle, and can also be reconciled with the much more considered analysis of judicial review of executive power in Elijah Burke v Minister for Education. It concludes that TD can be ‘read down’ in future, fading into its rightful place in the background of Irish constitutional law.
I Would Do Anything for Rights - But I Won't Do That
For all its influence and renown, TD v Minister for Education is arguably an outlier among the many decisions of the Irish courts on the topic of rights enforcement against the executive. This paper illustrates this by reference to case law before TD, and discusses recent reaffirmation of this by the Supreme Court. It then considers various possible explanations for this outlier status, and suggests that the best explanation might be deep discomfort on the part of the judiciary with enforcement of economic and social rights. It concludes by noting that this discomfort could transcend constitutional text, so that even if further rights of this sort were inserted into the Constitution, the courts might refuse to strongly enforce them.
TD v Minister for Education, Constitutional Culture, and Constitutional Dark Matter
This paper suggests that the true influence of the TD case is seen not in its formal legal significance but in its less obvious impact on Irish constitutional culture. Drawing on Tribe’s notion of landmark cases curving constitutional space, it suggests TD is a form of constitutional dark matter, warping the fabric constitutional law invisibly by entrenching a highly cautious judicial culture and a political culture that is less sensitive to rights infringements caused by policy failures.
TD v Minister for Education: A Chilling Effect on Would-be Litigants?
Given that litigation is the last resort for those in need of education, and that there are ongoing challenges for those with disabilities in particular accessing appropriate education, there is a surprising paucity of contemporary cases seeking to enforce the right to education under the Irish Constitution. This article considers the causes of this, and the underexplored possibility that the TD case had a serious chilling effect on litigation on this constitutional right.
Situating Social Rights: Housing and Distributive Justice - Post TD
This article considers the impact of TD on housing rights in Ireland. While Ireland has signed up to multiple housing rights protections in the international human rights context, it has failed to implement them. TD ensures no constitutional intervention from the courts in this context. Despite generous Irish State funded social housing over the past century, access to shelter or housing is not treated as a rights issue.
Distributing Collective Burdens and Benefits: O'Reilly, TD, and the Housing Crisis
This article considers the underexplored nexus between the debates about housing rights and the TD debate, and the question of the appropriateness of judicial intervention in the social and economic arena. It contends that the property rights decisions that make responses to the housing crisis problematic are in fact inconsistent with the division of labour between courts and elected branches of government suggested in TD, and explores possible resolutions to this inconsistency.
TD v Minister for Education: Hard Case, Bad Law
This article considers TD v Minister for Education in contrast to the development of social rights protection in South Africa. It finds that South Africa developed powers similar to those exercised by Kelly J in TD incrementally. TD was a hard case, causing the possibility of incrementally developing social rights protection to be foreclosed upon. Had mandatory orders for other rights been litigated first, the possibility of social rights protection developing would be higher.