T.D. v. Minister for Education,  I.E.S.C. 101 (Ir.)
This case was brought by children suing through their mothers, guardians and others, and dealt with the issue of disadvantaged children in need of accommodation and treatment in high support units. The applicants asserted that the state was under a constitutional obligation to provide the children with special care and appropriate educational facilities.
The case was brought by disadvantaged children in need of accommodation and treatment in high support units. The children asserted that the state was under a constitutional obligation to provide them with special care and appropriate educational facilities. The state agreed that such facilities were necessary and had begun the planning process for building them. However the projects suffered many administrative and logistical delays. A High Court Judge issued a mandatory injunction (an order requiring the performance of a specific act), incorporating the state’s plan and ordering the government to build a specific number of facilities by certain dates. If the state wished to deviate from the set timescale it was required to seek the court’s approval with objectively justifiable reasons for the delays. The state did not contest the constitutional obligation, but objected to the mandatory injunction, arguing that under the principle of separation of powers, the judiciary did not have the jurisdiction to issue such a specific and mandatory injunction on the executive branch. The state also argued that the courts were not supposed to set policy.
The Supreme Court overturned the High Court’s injunction, holding that the judiciary generally does not have the power to direct mandatory orders at the government to enforce positive constitutional rights. The majority emphasized that the principle of separation of powers should be applied strictly and that allowing the court to give the government mandatory orders would disturb the balance of power and put the judiciary above the executive and the legislature. Several of the justices questioned whether the judiciary should be involved, through constitutional interpretation, in defining and enforcing socio-economic rights at all. The Court considered that the right claimed on behalf of each of the applicants can be defined as:-"a 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." However no such right is expressly recognised by the Constitution and, to the extent that it exists, it must be as one of the unenumerated personal rights guaranteed under Article 40.3.1.of the Constitution. The majority criticized a prior case, Ryan v. The Attorney General  IR 294, which held that the unenumerated rights guaranteed by the Constitution flow from the “Christian and democratic nature of the state.” The sole dissenter, Denham J., defended the High Court’s decision and argued that the courts, as guardians of the Constitution, have wide powers to remedy breaches of and enforce constitutional rights.
Enforcement of the decision was not an issue, although it is significant that the Supreme Court judgment in the case caused substantial criticism in the media of judicial conservatism. The problems in terms of the facilities provided for children with behavioral problems persist.
The case is significant because of the skeptical tone taken by the majority towards the very concept of unenumerated constitutional socio-economic rights. T.D. and another case, Sinnott v. Minister for Education  IESC 63;  2 IR 505, were key cases in the Supreme Court’s general trend away from recognition and enforcement of such rights. However, according to one commentator, “…subsequent decisions suggest that the Supreme Court may not have completely shut the door on the recognition of certain (unenumerated) economic and social rights in exceptional circumstances [seefor example, the case Re Article 26 and the Health (Amendment)(No. 2) Bill 2004,  1 IR 105].”
(Updated July 2015)