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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
principle, or the separation of powers broadly, it was an appeal about whether a High Court judge had the
jurisdiction to hand down the particular order. The order contained great policy detail and time-specificity.
The article argues that the ruling in TD, when understood as such, can be readily justified as a matter of
constitutional principle, and can also be reconciled with the much more considered analysis of judicial review
of executive power in Elijah Burke v Minister for Education. It concludes that TD can be ‘read down’ in
future, fading into its rightful place in the background of Irish constitutional la w.

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 that I co-authored, for
instance. See Oran Doyle and Tom Hickey, Constitutional Law: Texts, Cases and Materials (Clarus Press 2019) 230.
I now must point out that Oran was the lead author on that particular chapter, and that I would quibble with
his designation of this status to that judgment (for reasons that should become clear). But I am happy to be
able to say that that chapter is in my view among the strongest in the book.
2 Hardiman J, [2001] 4 IR 259 (SC) 359-363. For criticism of the judgment on these fronts with which I heartily

agree, see Eoin Carolan, The New Separation of Powers (Oxford University Press 2009) 30-31, 34-37 – and in
particular his comment that the conception of the separation of powers informing the majority judgments was
‘derived from unarticulated and unacknowledged assumptions of political theory.’ Gerry Whyte also makes
insightful criticisms on this front. See Gerry Whyte, Social Inclusion and the Legal System: Public Interest Law in Ireland
(2nd ed, Institute of Public Administration 2015) 28-30, 34-47.
3 TD v Minister for Education [2001] 4 IR 259, 358-359, per Hardiman J.
4 ibid 361, per Hardiman J: ‘If citizens 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 political arms of government.’

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to fulfil the obligations insisted upon by the applicants to children with their kinds of needs.
Nor had they contested that the Government ministers would in fact take all the steps
necessary to fulfil them – and indeed in the manner and by the dates referred to in the High
Court order. So the appeal to the Supreme Court in TD was not about any of those things –
contrary to what might tend to be suggested by much of the academic commentary on the
case. It was about something much more specific (and less intellectually arresting): whether
Kelly J had been entitled under the Constitution to issue the particular mandatory order
against the Government ministers that he had issued in his High Court ruling. That is, an
order directing those ministers to ‘take all steps necessary to facilitate the building and
opening’ of ten specified kinds of facilities in ten specified locations around the country and
by ten specified dates: ‘two six bedded high support units with ancillary educational facilities
at Castleblayney in the County of Monaghan on or before the 31 st December 2001,’ for
instance, ‘a five bed special care unit for boys in the Mid-Western Health Board region on
or before the 31 st December 2001,’ and a ‘five bed high support unit at Elm House in the
County of Limerick on or before the 31 st October 2000.’ 5

The scholars who contributed to this volume will all be familiar with this particular court
order – and with its level of detail and specificity (much as we may tend to gloss over those
matters in our writing about and perhaps even teaching of TD v Minister for Education). And
we all know that Kelly J did not pluck the details and specificity contained within from thin
air, but that they had been elaborated in the first place by officials from the Government
departments who had given evidence before him on behalf of the ministers (ie over the
course of the drawn-out series of hearings culminating in the High Court ruling in TD). It
was the Government’s own policy, in other words – not Kelly J’s policy.

This is of course reassuring for the more constitutionally-minded sceptics of the Supreme
Court ruling in TD: it is invariably emphasised in academic writing as it was by Denham J in
her dissent in the case. 6 But relevant as it is, it cannot entirely satisfy the more sensitive
constitutional souls among them. Because we do not need to consult the pages of De L’Espirit
des Loix to appreciate that in formulating the detail of this policy in the first place, the
ministers had been exercising the executive power of the State. They had been exercising
something that was not at its margins, but right at the core of the power that, as Art 28.2 of
the Constitution puts it, ‘shall, subject to the provisions of this Constitution, be exercised by
or on the authority of the Government.’ And now a High Court judge was not merely
interfering with the Government in its exercise of that power – in the sense of making a
determination that a particular policy was incompatible with the Constitution, or even a
declaration that a failure to enact a policy was constitutionally unsatisfactory. Kelly J was
incorporating a highly detailed framework into the terms of a mandatory order of the High
Court. And a judge of the High Court was thus ‘in substance actually exercising’ the executive
power of the State. 7

Now I think that we have tended to lose sight of quite how pivotal this was for the judges
on the majority in TD. 8 In his essay in this volume, for instance, Conor O’Mahony wonders

5 ibid 323-324, per Murray J.

6 ibid 303, per Denham J.
7 ibid 323-324, per Murray J (emphasis added).
8 Laura Cahillane seems to me to very much not lose sight of it in her essay in this volume – and rather to

capture the idea well. She opens her main substantive section on the judgments as follows: ‘The main point at
issue in the Supreme Court judgment in TD is the remedy given by the High Court...’ And she later says: ‘The
majority ultimately decided that this particular type of order was a contravention of the separation of powers
in that it involved the courts determining the policy which the executive was required to follow.’ See

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why it was that the injunction granted against the Government in the High Court in TD was
so objectionable when Crotty v An Taoiseach, more than a decade previously, had established
the principle that the courts may grant injunctions aimed at ensuring that the Government
acts in accordance with the Constitution. And he considers various explanations including
that the order in TD placed demands on the public purse and that it concerned an
unenumerated right – before concluding that ‘the main feature that distinguishes TD [ie from
Crotty] is that the right being violated was socio-economic in nature.’ 9

It is true of course that the judges in TD refer to these broader factors in their judgments (ie
the judges in the majority in the Supreme Court in the case). And I have no hesitation in
agreeing with the likes of Gerry Whyte and Eoin Carolan and Conor O’Mahony that those
judges were influenced in their judgment by their thinking on these broader factors – as well
as by related intuitions on similarly broad questions such as the role of the courts in a
democracy and the role of the state in general. 10 But if we read what they actually say in their
judgments, then it seems to me that it was the nature and form of the particular order that
was decisive in TD v Minister for Education. 11 It was that the extent of the detail on such specific
matters of policy rendered it difficult to conceive of what Kelly J had done as judicial review
of executive action – and as anything other than the actual exercise of executive power by a
judge of the High Court.

Take what Keane CJ actually says in his judgment, for instance. Sure, he expresses doubts at
one point as to whether the courts should recognise socio-economic rights under the
unenumerated rights doctrine – and David Kenny is no doubt right that that has had a
bearing on broader ‘constitutional culture’ over the two decades since. 12 But Keane CJ
immediately qualifies the idea by pointing out that ‘the resolution of that question must await
a case in which it is fully argued.’ 13 And we have to assume that a judge as rigorous as the
then chief justice intended that line to have legal significance – indeed it has to have legal
significance. (It might have had greater ‘cultural’ significance too if constitutional scholars
had been more inclined to make a point of underlining it). He also goes out of his way to
emphasise that the exclusive role afforded to Government in respect of executive power
does not prevent the courts from interfering with its exercise – even where a court’s
constitutional concern arises from ‘omission’ on the part of Government. 14 He does not refer
to the ‘clear disregard test’ for review of executive power at any point in the course of his
25-page judgment, nor the concept of deference as such. (Which I attribute to the fact that

Laura Cahillane, ‘The TD Case and Approaches to the Separation of Powers in Ireland’ 2022 6(3) Irish Judicial
Studies Journal 10.
9 See Conor O’Mahony, ‘I Would Do Anything For Rights – But I Won’t Do That’ 2022 6(3) Irish Judicial

Studies Journal 29. I would argue that the order in Crotty is a world away from the order in TD: for one thing,
it contains no policy detail whatsoever, and is prohibitory, whereas the order in the later case has a mind-
numbing level of policy detail and is mandatory in nature.
10 See Carolan (n 2) 30-31, 34-37; and Whyte (n 2) 28-30, 34-47.
11 Conor O’Mahony disagrees with me on this, pointing to the fact that the order handed down by the High

Court in Sinnott v Minister for Education was ‘nowhere near as detailed as that in TD.’ See O’Mahony (n 9) 32. But
I would counter that the issue in Sinnott was whether a person’s right to free primary education extended beyond
the age of 18. That was what decided the case, ie a majority of the judges found that it did not extent beyond
18. See Whyte (n 2) 17. In any event, TD is now seen as the more significant of the two cases (see David
Kenny’s essay for one perspective on its impact – David Kenny, ‘TD v Minister For Education, Constitutional
Culture, and Constitutional Dark Matter’ 2022 6(3) Irish Judicial Studies Journal 39). And in my view we must
read TD on its own terms.
12 See David Kenny, ‘TD v Minister For Education, Constitutional Culture, and Constitutional Dark Matter’

2022 6(3) Irish Judicial Studies Journal 39.

13 TD (n 3) 282, per Keane CJ (emphasis added).
14 ibid 286, per Keane CJ.

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the case was about judicial exercise of executive power rather than judicial review of
executive power). 15 And he decides the case in the course of two short paragraphs towards
the end – on the simple ground that the High Court had not been entitled ‘to make an order
specifying in detail the manner in which [the Government ministers] were to carry out their
functions so as to remedy the breach.’ 16

Much the same might be said of Murray J’s judgment. Sure, he goes all in on Montesquieu
and adds a little Alexander Hamilton for good measure (though he avoids endorsing quite
so rigid and implausible a conception of the separation of powers as did Hardiman J). 17 And
while he addresses ‘clear disregard’ and the question as to the extent of the deference owed
by courts in respect of mandatory orders against Government generally, this comes at the
tail end of his judgment – and very much after he has already reached his conclusion on the
issue to be determined in the case. 18 But for Murray J there is no question but that the courts
have jurisdiction to make orders ‘affecting, restricting or setting aside actions of the
Executive…or to make declaratory orders as to its obligations.’ 19 And he too seems to decide
the case in a few simple paragraphs: that the High Court judge had erred in failing to
distinguish adequately between ‘determining’ whether a policy is compatible with the
Constitution, on the one hand, and ‘taking command of [policy] matters so as to actually exercise
a core constitutional function’ of Government, on the other. 20

This may be dismissed as the fussy constitutional detail of a ‘formalistically inclined legal
commentator’ – as Kenny might put it. 21 But I think that a case can be of limited import in
strict legal terms while casting a long and dark shadow over the constitutional system more
generally. (That is, it could be at once true that TD has quite limited legal implications – as I
argue it has – and that it has had a great impact on the broader constitutional culture – as
Kenny argues it has had). 22 And if both of those things are true of TD v Minister for Education,
then we might ask ourselves who is to blame (ie for its apparently outsized influence on the
constitutional ‘culture.’) Sure, the judges must bear some responsibility: waxing lyrical about
Montesquieu and Warren-Court euphoria will tend to distract. But are we constitutional
scholars not partial to hyperbole too? Because critique of Hardiman J’s neo-liberal take on
the separation of powers, I venture, makes for better lecture theatre copy than does analysis

15 If this may be taken to suggest scepticism on my part as to the justiciability of socio -economic rights, I would
point out that Keane CJ and Murray J made a point of emphasising that declaratory orders against Governmen t
were a different matter – and were entirely open to the courts. Speaking for myself, I would have no concern s
in principle about declaratory orders in this context, nor would I object to mandatory orders that were more
general in nature (ie avoiding the extraordinary detail and specificity of Kelly J’s order. I would see my own
position on the matter of constitutionalising social rights, and indeed on judging social rights, as largely in line
with Jeff King’s – hardly a sceptic. See Jeff King, Judging Social Rights (Cambridge University Press 2012).
16 TD (n 3) 287, per Keane CJ (emphasis added).
17 ibid 322, per Murray J.
18 ibid 336-337, per Murray J. Indeed, that same point can be made in respect of what Hardiman J says on this

front – though like Murray J he uses terribly dramatic language on the point. Yet that aspect of the TD ruling
is so prominent in the literature. For example, in his essay in this volume, David Kenny describes the TD ruling
as having had the effect of ‘centring…a narrow reading of the ‘clear disregard’ test’ in Irish constitutional law.
See Kenny (n 12) 40.
19 TD (n 3) 331, per Murray J (emphasis added).
20 ibid 331 (emphasis added).
21 See Kenny (n 12) 36.
22 For the record, I would not quite go so far as Kenny when he suggests that TD represents ‘a massive cultural

object…that has bent and shaped almost all of our constitutional law.’ See my comments in the closing
paragraphs of this article, including for instance in (n 44) in respect of the fluid-not-rigid conception of the
separation of powers preferred by the likes of Susan Denham, Frank Clarke and Donal O’Donnell – each of
whom served as chief justice in the period since TD was handed down, and each of whose judgments on
constitutional law have carried great weight over the past decade (or two).

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of the place of ‘an additional two Special Care Units for girls in the Gleann Alainn unit in
County Cork on or before the 31 st July 2001’ in the terms of a mandatory court order. (I
know which works better for my first year constitutional law students of a wet Wednesday
morning in XG22).

And if I am right that what was actually decided in TD has been obscured somewhat over
the past two decades, then there must be an attendant propensity to miss the ways in which
the ruling might be justifiable as a matter of constitutional principle. (The ruling in strict legal
terms, that is. Or as I am arguing it ought to be understood). First of all, it seems to me to
make constitutional sense that the constitutional function apparently being exercised in or
by the terms of that High Court order would be exercised by a Government minister rather
than by a High Court judge. Consider for a moment the nature of the task of facilitating the
building and opening of even one of those high support units. It must involve all kinds of
complications around securing a site and planning and architects and builders and
contractors and safety regulators and resources and staff. And as I think Jeff King’s work on
judging social rights in particular attests, courts just cannot aspire to doing this necessarily
improvisational and day-to-day work effectively – certainly not by comparison to a
Government department (ie one constitutional organ is set up to do precisely this kind of
constitutional work, where the other is set up to do a very different kind of constitutional
work). 23

As for the related matter of constitutional answerability, recall that the question before the
Supreme Court in TD was not as to whether the constitutional rights of the applicants were
to be vindicated by the expenditure by the State of public money – that was conceded by
lawyers for the State. The question before the Supreme Court was concerned with the details
as to how to do it (eg should we place six beds here in Cork and eight there in Limerick, or
vice versa – and might we dedicate all our resources in Cork now, given the extent of the
emergency there, and proceed later to Limerick, or are we better to split our resources equally
even if it means neither will open quite as quickly?). And that is something that seems to me
to unavoidably involve ‘broad-based political judgment’ (keep the phrase in mind). In other
words, it is precisely the kind of constitutional business for which Government should be
answerable in the first place to Dáil Éireann – as per those eight simple words in Art 28.4.1.
Yet now, following Kelly J’s ruling in the High Court, a minister can effectively evade such
constitutional answerability by pointing out to the Opposition spokesperson in the Dáil ‘that
his hands were tied by an Order of the High Court.’ 24

23 King places much emphasis on the polycentric nature of issues concerning social rights, and the attendant
need for expertise and flexibility. He accordingly argues for what he calls for an ‘incremental’ approach on the
part of judges: ‘Incremental steps are those that require only a small departure from the status quo, or which,
when addressing significant macro-level policy, allow for substantial administrative or legislative flexibility by
way of response.’ See King (n 15) 9. Kelly J did allow for this to some extent in his High Court judgment in a
forerunner case insofar as he grants that the ministers can apply for a variation o f the injunction if required .
But, as Murray J points out, his qualification that such a variation would be granted only if ‘objectively justifiable
reasons’ are furnished seems to overlook the extent to which the implementation of policy requires such day-
to-day improvisation and is often so fundamentally subjective. TD (n 3) 334. The position taken by Keane CJ,
incidentally, seems to me to chime in particular with Jeff King’s thinking, ie with no objection in principle to
declaratory orders in respect of socio-economic rights, but with serious concerns around highly detailed, highly
prescriptive mandatory orders.
24 TD (n 3) 323-324, per Murray J.

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Elijah Burke as a ‘rolling back’ on TD?

It is often challenging to categorise a particular exercise of power as definitively ‘executive’
or ‘legislative’ or ‘judicial’ in nature, as the mind-boggling conundrums in the likes of Re
Solicitors Act and Zalewski attest.25 But in TD just as in Crotty v An Taoiseach – and indeed in
other landmarks such as Boland v An Taoiseach and McKenna v An Taoiseach – there was no
doubt but that the constitutional actors in question (i.e. the Government, or the Taoiseach,
or the Government ministers) were exercising the executive power of the State. 26 And that
was again the case in Elijah Burke v Minister for Education, decided just days in advance of the
20 th anniversary of the Supreme Court ruling in TD. 27 The minister had established a
‘Calculated Grades Scheme’ at the height of a Covid lockdown – in lieu of the Leaving Cert
exam that traditionally determined which second-level students would get places in which
third level courses. But Elijah Burke was excluded. He had been home-schooled all his life
by his mother, and the minister had not managed to find a workaround that would enable
the award of calculated grades in such circumstances that would facilitate Elijah Burke’s entry
into third-level along with his more conventionally-educated comrades.

Burke’s lawyers did argue the point as it happens: they claimed that the minister, in designing
the Scheme, had been exercising a mere ‘administrative’ function. And they did so in order
to avoid having to surmount that highly deferential ‘clear disregard’ standard of review that
had been established in Boland v An Taoiseach as applicable in Irish constitutional law in cases
involving judicial review of executive action. The argument got short shrift in the Supreme
Court: of course this was the exercise of executive power. But Burke’s case was not lost,
because the failure of the minister to figure a way of awarding him grades engaged his
constitutionally protected freedom to receive education in the home (derived from Art 42).
And so now, twenty years on from TD, we had another case where a young person’s
constitutional rights had been placed in jeopardy not by a legislative enactment, but by
executive action – indeed by a failure of the executive to find a way to account for the
circumstances of a young person in an atypical situation.

Elijah Burke won his case at the Supreme Court. And in the course of the most significant
paragraph in the most considered judgment on judicial review of executive action in Irish
constitutional law, O’Donnell CJ presents what will likely prove its most enduring line:

if it is established that the actions of the Government have breached the

rights of the citizen, then the courts must uphold the Constitution, and
defend the rights of the citizen, in the same way, and applying the same
standards, as if those rights had been infringed by the actions of the legislative
branch of government. 28

25 Re Solicitors Act 1954 [1960] IR 239, Tomas Zalewski v Workplace Relations Commission [2021] IESC 24.
26 Boland v An Taoiseach [1974] IR 338, Crotty v An Taoiseach [1987] 1 IR 713, McKenna v An Taoiseach (No 2) [1995]
2 IR 1. For analysis, see Doyle and Hickey (n 1) 165-167, 201-213.
27 [2022] IESC 1 (SC). For discussion of Burke in the context of TD, see two short videos on my YouTub e

channel: ‘Elijah Burke & TD v Minister for Education (Part 1)’ at

<https://www.youtube.com/watch?v=oO4z_11pFu4> and ‘Elijah Burke & TD v Minister for Education
(Part 2)’ at <https://www.youtube.com/watch?v=POXZVWFXAlw> (accessed September 2022). For an
overview of Elijah Burke, see Conor Casey, ‘Ireland – Superior Courts Address Important Separation of Powers
Cases’ (2022) 4 Public Law 667-670.
28 Burke (n 27) [61], per O’Donnell CJ.

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So where does this leave the ruling in TD? Well my scholarly colleagues sense an important
shift. For Laura Cahillane the line ‘has echoes of Denham J’s [dissenting] judgment in TD.’ 29
For David Kenny the judgment ‘rolled back the most extreme implications of TD for rights
review.’ 30 And for Conor O’Mahony, it has ‘lowered the bar for court intervention in
executive affairs in cases involving fundamental rights, and arguably would have supported
the position taken by the High Court rather than the Supreme Court in TD.’ 31 But I am not
quite so sure. Because TD seems to me to play a curious and under-developed role in
O’Donnell CJ’s judgment for the unanimous Supreme Court in Elijah Burke.

That key line just set out is effectively the culmination of O’Donnell CJ’s reasoning on the
central question in the Elijah Burke case: did ‘clear disregard’ apply? The Government’s
lawyers had argued that it applied in all cases concerning executive power: that the express
provision in Art 28.4.1 for the answerability of Government to the Dáil renders that the
primary constitutional check on Government – and that that places scrutiny by the courts in
a subsidiary role, hence the blanket applicability of the highly deferential standard of review. 32
But O’Donnell CJ rejects that thesis. The deferential standard would apply in some cases,
but not in all. And one of the main considerations in determining the matter was whether
constitutional rights were at stake in the case. (As per the logic of that key line carrying echoes
of Denham J’s dissent in TD).

So far, so apparently indicative of a ‘rolling back’ of TD. But we can train the lens a little
more sharply. Because if that is his destination in respect of the central question in Elijah
Burke, O’Donnell CJ begins his journey towards it with the observation that deference in
constitutional adjudication is not to be understood as though it were simply a matter of
intuition or ‘choice’ on the part of the Court, but rather as ‘something to be deduced from,
and accordingly mandated by the Constitution.’ 33 The test or level of deference to be applied
in any given case, he insists, is to be justified by reference to ‘what the Constitution says, and
does not say,’ and by ‘the system and order it envisages.’ 34 (The Constitution is King, in other
words – not the intuitions of judges). And it is with this in mind then that O’Donnell CJ
casts his eye back over a line of landmarks on judicial review of executive action stretching
from Boland v An Taoiseach through Crotty v An Taoiseach and then McKenna v An Taoiseach to
TD v Minister for Education. 35

Now of these landmark precedents on executive power, O’Donnell CJ gives by far the most
attention in his judgment to Boland and Crotty – and it is these two that most readily fit the
doctrine he appears to be trying to develop in the case (ie the doctrine in respect of what
standard of review to apply in different kinds of cases involving judicial review of executive
action). Each of Boland and Crotty could be characterised as a classic ‘structures’ case in
constitutional law (ie rather than as ‘rights’ cases). Boland concerned the so-called Sunningdale
agreement in which the Irish Government accepted that there could be no change in the
status of Northern Ireland until a majority of its people desired such a change – leading
Kevin Boland to claim that it clashed with the territorial claim of the State ‘to the whole
island’ in the then Art 3 (ie such that Government was acting in breach of the Constitution).

29 See Cahillane (n 8) 15.

30 See Kenny (n 12) 42.
31 See O’Mahony (n 9) 30.
32 Burke (n 27) [35].
33 ibid [36].
34 ibid [35].
35 Boland v An Taoiseach [1974] IR 338, Crotty v An Taoiseach [1987] 1 IR 713, McKenna v An Taoiseach (No 2) [1995]

2 IR 10.

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And Crotty concerned the State’s proposed ratification of a European treaty the terms of
which, in Ray Crotty’s view, entailed a loss of sovereignty to the State – leading him to claim
that Government was not entitled to ratify it as an ordinary exercise of executive power but
rather had to first secure popular approval in a referendum. And each of the cases concerned
external affairs specifically – on which the Constitution was largely silent beyond expressly
providing (in Art 29.4) that matters pertaining to it ‘shall…be exercised by or on the authority
of Government.’

So it was these factors that led the judges in those cases to apply ‘clear disregard,’ reasoned
O’Donnell CJ. That is, that the text of the Constitution and its silences – and the system and
order it envisaged – tended to suggest that it was answerability to Dáil Éireann that was the
primary constitutional check on Government in these contexts, hence the applicability of the
more deferential standard of review. 36

As for TD, it gets nothing like the detailed consideration in O’Donnell CJ’s judgment that is
afforded to Boland and Crotty. But what is curious is that O’Donnell CJ places TD so very
definitively in the same category as Boland and Crotty and a handful of other such cases: as
classic constitutional ‘structures’ cases rather than as ‘rights’ cases. And he distinguishes them
sharply from the case at hand – Elijah Burke. The cases in the Boland-Crotty-McKenna-TD
category, he suggests, involve various constitutional actors (ie Government, or a
Government minister) making various determinations (eg whether to ratify a European
treaty; whether to spend public money favouring this or that side in a constitutional
referendum) that all seemed to ‘call for a broadly political judgment rather than a forensic
determination’ of the kind that might ordinarily be made by a court. 37 They all involved
exercises of power that were not ‘constrained by any specific restrictions or standards’ (ie in
the way of express or implied mandates of the Constitution). 38 And none of them –
apparently – involved allegations of infringements of constitutional rights. All of which
tended to indicate that ‘the primary accountability of such action lies under Art 28 with the
Dáil,’ which in turn ‘reinforces the analysis of the judicial role as arising only in cases of clear
disregard.’ 39

Whereas Elijah Burke’s case was different. It did involve a claim of a breach of constitutional
rights (ie it was not a ‘structures’ case; it was a ‘rights’ case). And that led straightforwardly
to what I have described as the key line in the Elijah Burke judgment (the ‘echoes of Denham
J line’). 40 The higher standard of deference did not apply, but rather the regular
proportionality standard that typically applies in cases involving rights-based claims made in
respect legislative provisions (ie why would it matter that a breach of rights had occurred on
foot of executive rather than legislative action?). This of course opened up the possibility
that Burke might win his case – and he did. And O’Donnell CJ is surely right that it should
make no difference in principle whether a breach of rights can be said to arise from executive
rather than legislative action. But we are left to wonder how it was that TD was quite so
definitively in the Boland-Crotty-McKenna category – and so apparently definitively
distinguishable from Elijah Burke. Because much as the question to be determined in the
Supreme Court appeal in TD had so much in common with those ‘structural’ questions to
be determined in Boland and Crotty – and much as the rights dimension of the case was not
contested by the State at that stage of the case – constitutional rights were undeniably

36 Burke (n 27) [57].

37 ibid [59].
38 ibid [60].
39 ibid.
40 ibid [61].

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engaged in TD more generally (ie in a manner that they were not in Boland and Crotty). And
so, TD does not seem to fit quite as neatly into the Boland-Crotty category as O’Donnell CJ
appears to suppose in his judgment in Elijah Burke.

Reading down TD
But there is a way of making sense of it. O’Donnell CJ sees that insofar as rights were engaged
in TD, there was never any question but that a declaratory order against the Government
ministers was warranted. (Remember that Keane CJ and Murray J made a point of
emphasising that such orders were entirely open to the courts in these circumstances – and
‘clear disregard’ was actually only addressed at the tail end of Hardiman and Murray JJs’
judgments – and parenthetically). And so O’Donnell CJ sees the Supreme Court ruling in
TD for what it actually was – rather than for what its critics and those curators of the broader
constitutional ‘culture’ might have made it out to be over the past two decades. It was a
highly distinctive appeal concerning the question as to whether a High Court judge had been
entitled under the Constitution to hand down a mandatory order directing Government
ministers to take all necessary steps to facilitate the building and opening of a five bed high
support unit at Elm House in the County of Limerick on or before the 31 st October 2000. 41
And the question as to whether such a support unit should be built in such a place and with
precisely such a number of beds seems to me about as good an illustration of the kind of
question calling for ‘broad-based political judgment’ as it might be possible to imagine – and
about as far from amenable to ‘forensic determination’ as it might be possible to imagine.
And it seems about as good an illustration one could find of the kind of mundane yet highly
important constitutional matter for which Government should be answerable to Dáil
Éireann – that is, under the text of the Constitution, and in light of the system and order it
appears to envisage. (The Constitution is King – not the intuitions of judges).

That is why I just cannot agree with Conor O’Mahony’s suggestion that the judgment in
Elijah Burke could be interpreted as supporting ‘the position taken by the High Court rather
than the Supreme Court in TD.’ 42 On the contrary, it supports the position taken by the
Supreme Court in TD – certainly in respect of the key legal question that fell to be determined
at that stage of the case. That is not to say that the O’Donnell CJ judgment does not , as
Cahillane puts it, carry ‘echoes’ of Denham J’s dissent in TD (and even of certain aspects of
Kelly J’s judgment in the High Court). It surely does: in respect of the fluid-not-rigid
conception of the separation of powers, for instance, and in respect of the role of the courts
generally in vindicating constitutional rights. But I would say that in those respects Elijah
Burke was nothing particularly new under the sun. Denham J, lest we forget, went on to serve
17 more years on the Supreme Court following her dissent in TD – including seven as chief
justice. And she always applied that more fluid conception of the separation of powers, as
did other leading judges of the past two decades (not least Clarke CJ and O’Donnell CJ –
who always emphasise the rejection in the Irish system of Montesquieu’s ‘hermetically sealed

41 This chimes with what O’Donnell CJ actually says about TD in his judgment in Burke, limited though it was.
He simply said: ‘TD concerned the appeal to the Supreme Court from a mandatory order made in the High
Court directing the defendant, the Minister for Education, to take all necessary steps to facilitate the building
and opening of secure and high support units for troubled children at a number of specified locations. The
Supreme Court overturned the order on the grounds that it offended the separation of powers. However,
Murray J also expressed the view that a mandatory order should only be made against another organ of the
State in exceptional circumstances, if such an order had disregarded its constitutional obligations in exemplary
fashion.’ ibid [58].
42 See O’Mahony (n 9) 30.

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branches’ thesis). 43 As for the rights element of TD, there was never any question but that a
declaratory order was warranted in the circumstances.

So to my mind Elijah Burke largely clarifies what was already latent in the jurisprudence. And
what I would take from it in respect of the standing and status of TD v Minister for Education
is that that old landmark was highly distinctive and that it should be read accordingly into
the future. 44 It should be read down, in other words. (Or read, perhaps?) If it was ever true
that it ‘marked the end of any possibility of constitutional recognition of economic, social or
cultural rights in the Irish Constitution as it stands,’ 45 then let us cast the idea aside – because
the appeal to the Supreme Court in TD was never about that question. (Whether such rights
should be derived from the text or structure as is stands is another question, but it should be
seen as independent of the ruling in TD). If it was ever true that it ‘marked and stands for
the end of unenumerated rights,’ 46 let us shed that notion too (though of course we now
have an emerging ‘derived rights doctrine’ in any event – which looks to me like an eminently
more plausible way to go than the way suggested by Ryan v Attorney General). 47 And if it stood
for the precluding of rigorous review of executive action, or for that rigid-not-fluid
conception of the separation of powers, or for a ‘small view of the judicial power’ 48 – then
we should be clear that we need not take it to stand for those things either. Because TD v
Minister for Education was never really about those things. It was about the order, stupid.

43 In nearly every one of the several major judgments concerning constitutional law that Donal O’Do nnell has
handed down since his appointment in 2010 he has made a point of emphasising how fundamentally inter-
dependent are the three great organs of State. See for example his judgment in Pringle v Government of Ireland
[2012] 3 IR 1, especially at 102-103, and his judgment in Callely v Moylan [2014] 4 IR 112, jointly written with
Clarke J (as he then was).
44 As James Rooney puts it in his contribution to this volume, TD was ‘a hard case… Whilst on the one hand

it can be distilled to a simple question of: ‘should children in need be provided with necessary state care,’ ultimately the
claim was for a novel constitutional remedy, never before ordered by the Supreme Court, to vindicate an ill-
defined, unenumerated, social right imposing immediate obligations on the state.’ See James Rooney, ‘TD v
Minister for Education: Hard Case, Bad Law’ (2022) 6(3) IJSJ 71.
45 See Kenny (n 12) 39.
46 ibid.
47 Ryan v Attorney General [1965] IR 245.
48 See Kenny (n 12) 40.

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