Revisiting Old Ground - TD, Sinnott and the Dangers of Clinging Too Tightly to Separation of Powers Orthodoxy

• Author: Colm Ó Cinnéide
• Position: Professor of Constitutional and Human Rights Law, University College London
• Pages: 1-9

IRISH JUDICIAL STUDIES JOURNAL

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REVISITING OLD GROUND –

TD, SINNOTT

AND

THE DANGERS OF CLINGING TOO TIGHTLY

TO SEPARATION OF POWERS ORTHODOXY

Abstract: This article seeks to reassess the TD and Sinnott cases in Irish constitutional law. It explores the

context of these cases, and why they are regarded as important and closely linked in Irish constitutional

discourse. It then analyses their reasoning to consider whether they withstand scrutiny after two decades. It

concludes that the judgments painted with too broad a brush, reaching some questionable conclusions, drawing

overly categorical distinctions between branches of government, and creating conceptual confusion.

Author:

Professor Colm Ó Cinnéide

,

Professor of Constitutional and Human Rights Law, University College

London.

Introduction: Looking Back to See Anew

Revisiting past judgments can be an illuminating process – especially those viewed as

significant turning points in the evolution of the constitutional canon. Reading such

judgments again is an opportunity to place them in historical context, and to assess their

contemporary significance.

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Do they deserve to retain their authoritative status? Or should

their precedential value be downgraded – or, at least, qualified with an asterisk of concern?

Is it time to think again about the possible case-law paths they shut off, or leave the ghosts

of alternative legal possibilities well alone?

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This paper re-assesses one such judgment, the much-debated Supreme Court judgment of

TD v Minister for Education, now over two decades old.

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Or, to be more precise, it examines

the significance of this judgment and another Supreme Court decision with which it is closely

associated – namely Sinnott v Minister for Education,

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decided six months previously back in

July 2001. It analyses (i) why these two judgments can be considered to be ‘coupled’ together,

despite the distinct legal arguments at issue in each case; (ii) the relevant background context

to both judgments; (iii) why they are regarded as important turning points in the development

of Irish constitutional jurisprudence; and (iv) how well their reasoning has stood up to the

test of time.

In essence, the particular significance of the TD and Sinnott judgments lies in how the

majority of the Supreme Court pushed back against new approaches to protecting rights

which had become highly fashionable by the end of the 1990s – favouring instead a more

traditional, rigid approach to separation of powers, which limits how far courts can go in

vindicating constitutional rights through the use of mandamus orders and other forms of

supervisory relief. Re-visiting the two judgments, it is striking how the majority painted with

a broad brush in reaching its conclusions, and reached some doctrinally messy and

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For a re-assessment o f a Supreme Court judgment from a sli ghtly later period, see Colm Ó Cinnéide, ‘Equality

Authority v Portmarnoc k Golf Club – Revisited’ (2022) DULJ, forthcoming. For a sustained re-appraisal of key

Irish precedent through a feminist lens, see Mairead Enright and others, No rthern/Irish Feminist Judgments (Hart

2017).

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This could be viewed as part of a constitutional ‘self-correcting learning p rocess’, as Habermas puts it: Jurgen

Habermas, ‘Cons titutional Democracy: A Paradoxical Unio n of Con tradictory Principles?’ (2001) 29 Pol.

Theory 766, 766–769.

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[2001] 4 I.R. 259.

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[2001] 2 I.R. 545.