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

AuthorLaura Cahillane
PositionSenior Lecturer in Law, University of Limerick
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
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.
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 judges 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.
The majority ultimately decided that this particular type of order was a
TD v Minis ter for Education [2001] 4 IR 259
ibid [1].

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