Saturday 1 October 2016

Minority government will pose some legal headaches

James McDermott

Published 23/04/2016 | 02:30

Taoiseach Enda Kenny with Josepha Madigan TD and acting Minister for Agriculture Simon Coveney at Government Buildings following talks between Fine Gael and a number of Independent deputies on forming a new government. Photo: Arthur Carron
Taoiseach Enda Kenny with Josepha Madigan TD and acting Minister for Agriculture Simon Coveney at Government Buildings following talks between Fine Gael and a number of Independent deputies on forming a new government. Photo: Arthur Carron

As we inch closer to the formation of a minority government, it is worth considering the legal implications of how this might work in practice. In fact, there is very little guidance in the text of the Constitution as to the extent of Executive power in such circumstances.

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For example, Article 13.2.2 refers to the absolute discretion of the President to refuse a dissolution on the advice of a "Taoiseach who has ceased to retain the support of a majority in Dáil Éireann".

However, implicit in the concept of ceasing to retain the support of the majority is the fact that at some point in time you actually enjoyed such support.

This is hardly an accurate description of a Taoiseach who has been facilitated in forming a government through tactical abstentions.

Much has been said during the negotiations about establishing a new era of partnership where the power of the Executive will be limited. And one obvious way of limiting the power of the government is to limit its size.

The Constitution requires that the government consists of "not less than seven and not more than 15 members" with the upper limit invariably being favoured by parties keen to reward as many loyal deputies as possible with prestigious Cabinet posts.

Indeed the demand for a seat at Cabinet is so far in excess of supply that in the past we have even had attempts to circumvent the constitutional limitations on size through the creation of so-called 'super junior' ministers who can attend, but not vote, at Cabinet.

In relation to junior ministers the maximum number is set down by legislation that in the past has allowed up to 20 to be appointed.

However, with a minority government being formed with as little as 58 seats, it would be difficult to justify having a full complement of 15 senior ministers.

Indeed, assuming that there were 15 senior and 15 junior ministers (as is currently the case), then over half of the deputies supporting the government would hold a ministry of some kind.

Significantly reducing the number of government ministers would also be consistent with the idea that we are entering a new era of Irish politics where significant powers will be devolved away from the previously all-powerful Cabinet - and towards parliamentary committees instead.

Another possibility is to appoint a complete outsider to the Cabinet. This is made possible by the fact that 11 members of the Seanad are nominated by the Taoiseach, and these senators are then qualified to be a member of government.

Such an appointment would certainly go down badly with disappointed backbenchers who have been overlooked for ministerial office and may also offend the general public who find themselves unable to vote a minister out of office at the next general election.

This power of the Taoiseach to appoint 11 senators means that the government invariably has a majority in the Upper House. However, if, as seems possible, the next government is denied a majority in both houses, then further problems arise.

Ordinarily the powers of the Seanad are extremely limited as it can only delay legislation for 90 days and has no meaningful role to play in relation to money bills such as the Budget.

Certain obscure constitutional provisions could create difficulties, however.

For example, Article 27 enables a majority of senators and not less than a third of the Dáil to come together to petition the President not to sign a bill that contains a proposal of national importance and instead to refer it to the people by way of a referendum.

This procedure has never been used to date, as it requires the existence of an anti-government majority in the Seanad that rarely exists - but which might now.

Any independents considering supporting the establishment of a government in return for a Cabinet seat, but wishing to reserve the right to disassociate themselves from its actual decisions, may end up disappointed - as the Constitution requires the Cabinet to act as a collective body and to take collective responsibility for decisions reached. In other words, only home supporters are allowed to sit in the Cabinet seats in the political stadium.

One thing is clear: whoever is finally appointed as attorney general of a minority government will have his or her work cut out for them in simply working out what the government's powers are.

James McDermott is a lecturer in the UCD School of Law and a practising barrister

Irish Independent

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