Judicial Enforcement of Social Rights in a Comparative Perspective

AuthorBrice Dickson
PositionProfessor of Law Emeritus, Queen's University, Belfast
[2022 ] Irish Judicial Studies Journal Vol 6(3)
Abstract: This paper discusses the TD 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 TD case’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
is to put that decision into
comparative perspective , with particular reference to other common law jurisdictions,
including Northern Ireland.
ratio decidendi
of the
When discussing the TD case, it is important to distinguish between its ratio decidendi and its
obiter dicta. The reason for rejec ting 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 disadva ntaged 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 a bout 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 sa y 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.
In fact, the
government wa s 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, w hereas 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 f or Education on the basis that in t he
latter case no decision needed to be made on whether or not a mandatory injunction should
be issued.
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
TD v Minis ter for Education [2001] 4 IR 259.
See ibid, per Murray J.
[2001] 2 IR 545.

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