TD v Minister for Education: Hard Case, Bad Law

• Author: James Rooney
• Position: Barrister-at-Law, Teaching Fellow, Trinity College Dublin
• Pages: 71-81

IRISH JUDICIAL STUDIES JOURNAL

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

71

TD V MINISTER FOR EDUCATION

: HARD

CASE, BAD LAW

Abstract: This article considers TD v Minister for Education in contrast to the development of social

rights protection in South Africa. It finds that South Africa developed powers similar to those exercised

by Kelly J in TD incrementally. TD was a hard case, causing the possibility of incrementally developing

social rights protection to be foreclosed upon. Had mandatory orders for other rights been litigated first,

the possibility of social rights protection developing would be higher.

Author: Dr James Rooney, Barrister-at-Law, Teaching Fellow, Trinity College Dublin

Introduction

TD v Minister for Education

1

is the most important Irish rights decision of the first decade

of the 21st Century, and ‘the paradigm case on the entire subject’ of social rights

adjudication in Ireland.

2

Bizarrely, in TD the existence of an unenumerated social right

latent within the Constitution was accepted by all parties and by the Court, with the

disagreement centring on the extent of the court’s powers to vindicate the rights breach.

3

The High Court had ordered the State to ‘expeditiously’

4

provide specific sites for

children in need to ensure the right to ‘be placed and maintained in secure residential

accommodation so as to ensure, so far as practicable, his or her appropriate religious and

moral, intellectual, physical and social education.’

5

In rejecting the premise that courts

can issue mandatory orders in rights cases, the Supreme Court ‘sounded the death knell

of enforceable [social rights]’ in Ireland.

6

Even before this special edition, TD was perhaps the Supreme Court judgment that had

attracted the most academic commentary, most of it critical of the court’s reasoning.

7

A

oft-cited contrast to the resistance of the Irish Supreme Court to social rights is the

Constitutional Court of South Africa.

8

At the time TD was decided, mandatory orders

1

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

2

Nial Fennelly, ‘Judicial Decisions and Allocation of Resources’ (2010) 23(3) Advocate 48, 50.

3

[2001] 4 IR 259, 309. A lan DP Brady, ‘The Vindication of Con stitutional Welfare Rights: Beyond t he

Deprivation of Liberty?’ (2017) 40(2) DULJ 127, 137.

4

TD v Minis ter for Education [2000] 3 IR 62, 84.

5

TD (n 1) 280. In the High Court, this right was cons idered by K elly J at [ 44] as the right ‘of trou bled minors

who requ ire placement of the type envisaged’ in FN v Minister fo r Justice [1995] 1 IR 409. [1999] 1 IR 29, 44.

6

Caoimhe Stafford, ‘The Case fo r a Judicially Enforceable Right to H ousing’ (2017) 16 Hibernian Law

Journal 42, 49.

7

Gerry Whyte, ‘The Ro le of t he Supreme Court in our Democracy: A Response to Mr Justice Hardiman’

28 (2006) DULJ 1; Rory O’Connell, ‘From Equality Before th e Law to the Equal Benefit of the Law: Social

and Economic Rights in the Irish Constitutio n’ in Eoin Carolan and Oran Doyle (eds ) The Irish Constitution:

Governanc e and Values (Round Hall 2008) 327; Whyte (n 48) 357-363; Claire-Michelle Smyth, ‘Social and

Economic Righ ts in the Irish Courts and the Potential for Constitutionalisation’ in Laura Cahillane, James

Gallen and Tom Hickey (eds) Judges Politics, and the Irish Constitution (MUP 2017) 289. For an outlier to the

above, see A drian Hardiman, ‘The Role of t he Supreme Court in our Democracy’, in Mulho lland

(ed) Political Choice and Democratic Freedom in Ireland: 40 Leading Irish Think ers (McGill 2004) 32.

8

Claire McHugh, ‘Socio-E conomic Rights in Ireland: Lesson s to be Learned from South Africa and I ndia’

(2003) 4(1) Hibernian Law Journal 109; William Binchy, ‘Emerging Trends in Irish High Court and