Reading TD Down

• Author: Tom Hickey
• Position: Lecturer in Constitutional Law and Theory, DCU
• Pages: 19-28

IRISH JUDICIAL STUDIES JOURNAL

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

19

READING

TD

DOWN

Abstract: This article argues that TD v Minister for Education was about something more specific than has

been supposed in the academic literature. Rather than being about the justiciability of socio-economic rights in

principl e, or the separati on of powers broadly, it was an appeal about whether a High Court judge ha d the

jurisdiction to hand down the p articular order. The o rder contained great policy detail and time-specificity.

The article argues tha t the ruling in TD, wh en understood as such, can be readil y justified as a matter of

constitutional principle, and can also be reconciled with the much more considered analysis of judicial review

of executiv e power in Eli jah Burke v Minister for Education. It conclud es that TD can be ‘read down’ in

future, fading into its rightful place in the background of Irish constitutional law .

Author: Dr Tom Hickey, Lecturer in Constitutional Law and Theory, DCU.

‘It’s the order, stupid’

Of the four majority judgments handed down in TD v Minister for Education, Hardiman J’s has

come to enjoy the status of ‘leading judgment’ – and it has played a dominant role in the

scholarly debates in particular.

1

There are no doubt many reasons for this. But among them,

I venture, is that Hardiman J devotes so much time in his judgment to broader ideas in

constitutional theory (ie relative to the time he devotes to the issues that strictly needed to

be determined to decide the case) and that he slips into looser, almost debating chamber-

style language as he does so. So he cites Montesquieu and the French Revolutionary

Constitutions and the Constitution of the State of Virginia – on his way towards elaborating

a dubiously rigid conception of the separation of powers in Irish constitutional law (and a

dubiously simple conception of its purpose in democratic constitutionalism generally).

2

He

quotes approvingly from Raoul Berger’s Government by Judiciary: that a generation of scholars

‘floating on a cloud of post-Warren Court euphoria’ had embraced the approach suggested

by the title of that book (which approach, it was implied, had informed Kelly J’s ruling against

the Government ministers in the High Court).

3

And he speculates that approval of Kelly J’s

ruling by the Supreme Court might lead over time to a decline in the vibrancy of the political

organs of State – and even in the democratic virtue of the citizenry.

4

So his judgment is ripe for scholarly critique. But the other majority judgments are more

challenging for sceptics of the ruling in TD v Minister for Education. Keane CJ and Murray J in

particular cut to the chase. The State’s lawyers had not contested the question of rights before

the Supreme Court. Nor had they contested that the Government was constitutionally bound

1

Hardiman J’s judgment is referred to as the ‘leading majority judgment’ in a book th at I co -authored, for

instance. See Oran Doyle and Tom Hickey, Constitutional Law: Tex ts, Cases and Materials (Clarus Press 2019) 230.

I now must point out that Oran was the lead author o n that particular chapter, and that I would quibble with

his d esignation of this status to that jud gment (for reasons that should b ecome clear). But I am happy to be

able to say that that chapter is in my view among th e strong est in the bo ok.

2

Hardiman J, [2001] 4 IR 259 (SC) 359-363. For criticism of t he judgment on these front s with which I heartily

agree, see Eoin Carolan, The New Separation o f Powers (Oxford Un iversity Press 2009) 30-31, 34-37 – and in

particular h is comment that th e conception of the separation of powers informing the majority judgments was

‘derived from unarticulated and unacknowledged assumptions of polit ical theory.’ Gerry Whyte also makes

insightful criticisms on th is front. See Gerry W hyte, Social Inclusion and the Legal System: Public Interest Law in Ireland

(2nd ed, Instit ute of Public A dministration 2015) 28-30, 34-47.

3

TD v Minister fo r Education [2001] 4 IR 259, 358-359, per Hardiman J.

4

ibid 361, per Hardiman J: ‘If citiz ens are taught to look to the courts for remedies for matters within the

legislative or executive remit, they will progressively seek further remedies there, and progressively cease to

look to the p olitical arms of government.’