I Would Do Anything for Rights - But I Won't Do That

• Author: Conor O'Mahony
• Position: Professor of Law, School of Law, University College Cork
• Pages: 29-38

IRISH JUDICIAL STUDIES JOURNAL

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

29

I WOULD DO ANYTHING FOR RIGHTS – BUT I

WON’T DO

THAT

Abstract: 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.

Author: Professor Conor O’Mahony, Professor of Law, School of Law, University College Cork.

Introduction

In the study of Irish constitutional law, TD v Minster for Education looms large.

1

Its influence

extends beyond the principles established governing the (extremely limited) circumstances in

which a court may grant a mandatory injunction compelling the executive to undertake a

specified course of action. Together with its companion decision from five months earlier in

Sinnott v Minister for Education,

2

TD was seen as signaling a new, more restrained direction for

Irish constitutional jurisprudence that continued for the next two decades. It has become, as

David Kenny argues in his contribution to this volume, a key component of our

constitutional culture.

3

While this is a largely accurate characterisation, it is not the whole story. On a broad view, it

is true that TD was an important step in a shift towards a more restrained and deferential

posture on the part of the courts. It is easy to form the impression that it is in perfect

harmony with the surrounding jurisprudence. However, on the specific issue of the power

of the courts to grant an effective remedy in cases where an existing constitutional right has

been violated, it is in fact remarkably difficult to reconcile TD with a large number of

Supreme Court decisions that have not been overturned or discredited – or, for that matter,

with some significant cases decided after it. For all its canonical status in Irish constitutional

law, TD is in some ways an outlier rather than part of the mainstream, at least within the

corpus of Irish constitutional case law.

4

This brief reflection will situate TD in a wider body of Supreme Court jurisprudence

considering the enforcement of constitutional rights in cases where they are violated by the

executive. It will argue that the general principle is that the courts have both the power and

duty to enforce rights in these circumstances, and that they have all powers necessary to do

1

[2001] 4 IR 259.

2

[2001] 2 IR 545.

3

David Kenny, ‘TD v Minister for Education, Culture, and Constitutional Dark Matter’ (2022) 6(3) IJSJ 39.

4

Elsewh ere in this volume, Brice Dickson argues that TD is not an outlier in comparative terms, since the

courts o f several simil ar jurisd ictions are reluctant to interfere in executive affairs: see Brice Dickson , ‘Judicial

Enforcement of Social Rights in a Comparative Perspective’ ( 2022) 6(3) IJSJ 82. Note, h owever, that of the

jurisdictions discussed by Dickson, only South Africa has a written const itution that includes enforceable socio-

economic right s p rovisions . A s s uch, the specific issue of w hether courts are w illing to use mandatory

injunctions as an ultimate enforcement mechanism for constit utionally-protected socio-economic rights

receives little attention.