Judicial Enforcement of Social Rights in a Comparative Perspective

• Author: Brice Dickson
• Position: Professor of Law Emeritus, Queen's University, Belfast
• Pages: 82-88

IRISH JUDICIAL STUDIES JOURNAL

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

82

JUDICIAL ENFORCEMENT OF SOCIAL RIGHTS

IN A COMPARATIVE PERSPECTIVE

Abstract: This paper discusses theTD case, and its core holding about the justiciability of social rights, in

comparative perspective. Canvassing the practice of courts in the US, Canada, Australia, New Zealand and South

Africa, and the UK Supreme Court and the courts of Northern Ireland, it concludes that, despite the controversy

surrounding the TDcase’s outcome, it is very much in line with Ireland’s close comparator jurisdictions.

Author: Professor Brice Dickson, Professor of Law Emeritus, Queen’s University, Belfast.

The aim of this short contribution to the discussion of the justiciability of social rights 21

years after the Irish Supreme Court’s decision in the TD case

1

is to put that decision into

comparativeperspective, with particular reference to other common law jurisdictions,

including Northern Ireland.

The

ratio decidendi

of the

TD

case

When discussing the TD case, it is important to distinguish between its ratio decidendi and its

obiter dicta. The reason for rejecting the appellants’ appeal was that it was not an appropriate

case in which to issue a mandatory injunction requiring the government to take certain

measures. The inappropriateness lay in the fact that such an order would have involved telling

the government how the resources available to it should best be allocated. The decision was

therefore focused on what remedy, if any, was available to the disadvantaged children who

had brought the appeal. The court did not say that it would never be appropriate to issue a

mandatory injunction against the government.

All of the remarks in the judgments about whether Irish courts should ever protect socio-

economic rights which are not already explicitly guaranteed by the Constitution were, strictly

speaking,obiter dicta. They were not essential to the decision refusing a mandatory injunction.

Needless to say the dicta should be given considerable weight, not least because they were

lengthy and in at least one of the judgments there was an intimation that the injunction

needed to be refused precisely because the case involved a socio-economic right.

2

In fact, the

government was not arguing that Kelly J, in the High Court, had been wrong to hold that

children in need of secure accommodation had a constitutional right to that effect. Denham

J, in her dissenting judgment, relied specifically on the finding in this case that a breach of a

constitutional right had been identified, whereas in O’Reilly v Limerick Corporation, which

Hardiman J cited in support of his refusal of an injunction in TD, no such breach had been

found. Denham J also distinguished Sinnott v Minister for Education on the basis that in the

latter case no decision needed to be made on whether or not a mandatory injunction should

be issued.

3

Still, whatever the ratio of the TD decision, it remains clear that the obiter dicta of the majority

still reflect the current legal position in Ireland, namely, that there is a great reluctance on the

part of the courts to recognise the existence of socio-economic rights as constitutional rights

1

TD v Minis ter for Education [2001] 4 IR 259.

2

See ibid, per Murray J.

3

[2001] 2 IR 545.