Who will govern Ireland as we wait on a Dail? Enda of course
Kenny will remain in 'caretaker' role until a new government is formed, says Eoin O'Malley
The inconclusive result of the General Election means that it could take some time to form a government. Spain, whose election took place in December, is still inching closer to forming a government, but isn't there yet. That may seem a long time but it is nothing compared to the 589 days that it took the Belgians to form a government in 2010/11.
It now looks unlikely that a new Taoiseach will be elected and a government will be formed when the new Dáil meets on March 10. So who will govern Ireland while we wait?
The first task of the new Dáil is to elect a Ceann Comhairle. This itself will take longer than usual because there's a new method of election. Conventionally the second piece of business of the new Dáil is to nominate a Taoiseach. Article 13.1.1˚ of the constitution says the Taoiseach is appointed by the President having been nominated by the Dáil. That vote only requires a simple majority of the Dáil, so for instance if a number of TDs were to abstain a Taoiseach could be elected with less than half of the 158 TDs.
There may not be a vote because if Enda Kenny is still leader of Fine Gael he won't want to lose a vote on this. According to Article 28.10, which says that a Taoiseach must retain the confidence of the Dáil, he is required to tender his resignation as Taoiseach if he loses this vote. This was the case in 1989 when Charles Haughey (eventually) resigned. There's nothing to stop a member of the opposition forcing the issue by nominating Kenny, though the Taoiseach could usually adjourn the Dáil to avoid this.
If Kenny loses a vote, he's lost the confidence of the Dáil, but Ireland is not without a government. The constitution (28.11.1˚) states that the Taoiseach and ministers remain in office in a caretaker capacity until a successor is appointed. This would include Labour ministers (unless they were to tender their resignation, which the Taoiseach technically can refuse).
It also includes any ministers who lose their seats. This may seem odd, but according to article 28.8 ministers have the right to attend and be heard in the Dáil. Though they could not vote, they can still sign ministerial orders and carry out the day-to-day functions of government.
It took four weeks to form the Fianna Fáil/ PD coalition in 1989, but there is no time limit on this. In theory the caretaker government could stay in office for the duration of the Dáil. That's not going to happen.
The constitution is silent on government formation, so politics comes into play. If negotiations to form a government aren't working the President may feel the need to step in, though he's under no obligation to do so. He's been willing to get involved in political debates before, so who knows? If it is clear after six or eight weeks that no government will be formed, the President will dissolve the Dáil, and we could all be back voting again.
Dr Eoin O'Malley, School of Law and Government, Dublin City University