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

AuthorConor O'Mahony
PositionProfessor of Law, School of Law, University College Cork
[2022 ] Irish Judicial Studies Journal Vol 6(3)
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.
In the study of Irish constitutional law, TD v Minster for Education looms large.
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,
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.
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.
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
[2001] 4 IR 259.
[2001] 2 IR 545.
David Kenny, ‘TD v Minister for Education, Culture, and Constitutional Dark Matter (2022) 6(3) IJSJ 39.
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.

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