The TD Case and Approaches to the Separation of Powers in Ireland

• Author: Laura Cahillane
• Position: Senior Lecturer in Law, University of Limerick
• Pages: 10-18

IRISH JUDICIAL STUDIES JOURNAL

10

THE

TD

CASE AND APPROACHES TO THE

SEPARATION OF POWERS IN IRELAND

Abstract: The case of TD v Minister for Education is a great microcosmic example of the varying philosophies

of the separation of powers and the role of the judge under the Constitution and for many years it set a very

high standard for the review of executive power, but perhaps the wind is changing on these issues. This article

will briefly consider the various perspectives given by the judges in the TD case on the separation of powers

before moving on to a more recent example to assess whether the vision of formalis m espoused by the TD

judgment is now falling out of favour.

Author: Dr Laura Cahillane, Senior Lecturer in Law, University of Limerick

Introduction

The operation of the separation of powers under the Irish Constitution is something that

has occupied the mind of many a judge and scholar in Ireland over the years. While there is

no overt statement on the doctrine in Bunreacht na hÉireann, the document clearly

incorporates the idea of separating the key elements of governmental power in the State.

Whether it does so in a manner which implies a complete separation of governmental

functions or whether it envisages a supervisory element is a question which is not settled and

the tension between these differing visions of the separation of powers doctrine is evident

and forms a key part of the TD case.

1

The judgments in the TD decision have had a major

impact on the interpretation of various aspects of Irish law, including the attitude towards

socio-economic rights and distributive justice and 21 years later, it is worth asking whether

the position taken on the separation of powers question still holds favour.

The issues involved in the TD case required the judges to consider what kind of separation

of powers is intended in the Constitution – a strict separation incorporating only the checks

and balances that are actually enumerated or a more flexible, functional doctrine which

involves a general supervisory element. Interestingly, the interpretation given differs

depending on the judge’s own conception of the role of a judge under the Constitution. This

article will briefly consider the approaches of the various judgments in the TD case before

moving on to consider whether the approach to the doctrine has now changed, using the

context of a recent major case involving similar issues.

Judicial Approaches in TD

The main point at issue in the Supreme Court judgment in TD is the remedy given by the

High Court and whether it is one which is consistent with the separation of powers. Kelly J

had granted a mandatory injunction in the High Court requiring the Minister to do ‘all things

necessary to facilitate the building and opening of secure and high support units’ to cater for

the needs of children with particular needs, in the context of ‘a lengthy sequence of such

cases in the High Court’ and previous orders, which were not of a mandatory nature, not

having been met.

2

The majority ultimately decided that this particular type of order was a

1

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

2

ibid [1].