Editorial

• Author: David Kenny - Conor Casey - Aileen Kavanagh
• Position: Guest Editors
• Pages: i-ii

IRISH JUDICIAL STUDIES JOURNAL

[2022 ] Irish Judicial Studies Journal Vol 6(3)

i

Editorial

Welcome to the third edition of the Irish Judicial Studies Journal 2022. This edition builds

on a conference which was held in April 2022, organised by the Trinity Centre for

Constitutional Governance– one year late, due to COVID delays –to mark the 20th

anniversary of TD v Minister for Education. Inviting academics with distinctive viewpoints and

broad expertise in Irish public law, it sought to tease out the implications of this landmark

case,one of the most famous in the Irish constitutional law canon. The articles in this edition

are expansions of and elaborations on many of these presentations, and reflect the dominant

important themes of the conference.

A common refrain at the conference was that TDdominated the education and academic

careers of those in the room. Many of the presenters were in various stages of their legal

education when the case, along with the Sinnott case, came down. Reacting to it, in whatever

manner, shaped the thinking of that generation of academics.Its centrality to Irish

constitutional thought means that it has similarly shaped everyone who has been legally

educated since.

It is fascinating, then, to see that one of the primary themes of these articles is the question

of how large TD’s impact truly is, and how big it should be. The various articles consider this

question in different ways, but there is a general consensus that the importance given to TD

should probably be reduced.

Colm O’Cinneide argues that the TDmajority, in painting their judgment in broad brush

strokes, reached some questionable conclusions and ended up in a conceptual mess, making

rigid, categorical distinctions between thefunctions of the branches of government that

could not be right. It is time, he thinks, to revisit this old ground and reconsider at least some

of its more extreme aspects.

Laura Cahillane conducts a close analysis of the TDcase’s impact on the separation of

powers, and some of the most extreme effects of this, such as the extentof review of

executive action for rights infringements. She notes that the recent case of Burke v Minister

for Education suggests some of these extremities are being rolled back in favour of somewhat

different orthodoxy.

Tom Hickey suggests thatTD, as a precedent, should be read narrowly, and not given the

sweeping significance it isoften attributed. The case, he says, is fundamentally about the

extraordinary order made in the High Court; reading it more much broadly than this is a

mistake. He sees the Burke case not as a pivot away from TD’s orthodoxy, but a reassertion

of the proper meaning of TD, which never had such a broad sweep.

Conor O’Mahony and David Kenny continue this exploration with a slightly different focus.

O’Mahony conducts a close analysis of precedent before TD, and suggests that its stance on

review and remedy for rights violations is was an outlier in Irish constitutional law; any move

away this is a restoration of a prior orthodoxy. He goes on to suggest that what TDreally

illustrated was in fact a deep and abiding judicial reluctance in Ireland to engage with social

and economic rights, something which he notes could persist even if such rights were

inserted into the constitutional text.