We must bring our government formation system in line with those used in other European states to prevent a constitutional crisis, writes Jim Duffy
The most recent Irish Times / TNS mrbi poll shows that neither of the coalitions on offer (Fianna Fáil plus the PDs; Fine Gael and Labour) is on target to decisively win the election. Fianna Fáil would lose 10 seats, the PDs a couple. Fine Gael would be in the high 40s and Labour stable. Even if the party leadership endorsed it, Labour grassroots may not agree to support a Fianna Fáil-led government, while all sides refuse to go into government with Sinn Féin. It is possible that we may end up with a Dáil stalemate, with no one being able to get nominated as taoiseach, and a second general election having to be called.
Most countries use government formation systems that cannot produce stalemates or, if one arises, can get around it. In Britain and "old Commonwealth" states, parliaments do not vote premiers into office. The monarch (in Britain) or the governor general (in Commonwealth realms) selects the new prime minister if and when an outgoing premier has resigned, with the new premier's first parliamentary hurdle being to get lower house approval for the "speech from the throne", in effect a vote of confidence, some weeks later. Even if parliament is divided, the monarch or governor general can appoint someone to government, or more likely, ask the existing prime minister to remain on in office while the parties discuss the situation.
Spain, like Ireland, holds a parliamentary vote on government formation. But instead of rival parties nominating alternative candidates, with all possibly being defeated as in Ireland, the king, after consulting with parties, nominates a candidate, whom he views as best placed to form a government. Parliament can substitute their choice, but the opposition would risk public wrath if having rejected the king's nominee, its choice could not get nominated.
In the Benelux countries, monarchs have a different role. The appearance of coalitions has led monarchs to appoint an "informateur", a neutral go-between who hosts discussions with the parties. They then report on who they think is best placed to form a government, with that person becoming a prime minister-designate.
Parliamentary systems, with rare exceptions, use heads of state to interpret election results on behalf of the nation, removing the process of government formation from political battles. What they cannot do would be to influence who is in government to suit their personal opinions.
Ireland, in contrast, has a heavily political, partisan, government formation process, in which haphazard negotiations may take place across the parties, and in which a host of separate problems can arise: if the Dáil cannot elect a ceann comhairle (the first election of the day), can it go on to debate the nomination of a taoiseach? How many times should a Dáil attempt to nominate a taoiseach before the Dáil is dissolved and a second general election called? What happens if, having nominated a taoiseach, the Dáil then rejects his proposed government? In 1982, George Colley contemplated not voting for Haughey's second government because it included Seán Doherty as minister for justice, although he voted for Haughey as taoiseach. Just because a majority supports someone for taoiseach doesn't mean the house will approve his or her choice of cabinet. Could we end up with the old cabinet from one party, with a new taoiseach, for a period while the new taoiseach tried, again, to get his or her cabinet approved? The Constitution mentions that ministers remain in office until their successors have been appointed. What is not defined is their role. Once defeated, a taoiseach has to resign. What then is his constitutional status? Can he seek a dissolution? Reshuffle ministers? Introduce a budget? Is he a full status taoiseach or an acting taoiseach?
In many states, the limits on the resigned prime minister's status are limited in law, or by the head of state, but in Ireland, the area is ambiguous. There are other issues. Article 28.10 for example, says a taoiseach who has lost the confidence of the previous Dáil, and been granted a Dáil dissolution, must resign, unless he gets the confidence of the new Dáil. If so, then the corollary must be true: a taoiseach who goes into a general election with the old Dáil's confidence must be presumed to also have the confidence of the "re-assembled" Dáil.
So why do we hold a nomination vote, given that there may already be a taoiseach with the Dáil's confidence? We should in fact start the new Dáil with a motion of confidence, not a nomination motion.
Our system is a mess, poorly thought out, and littered with pitfalls. Arguably it is time that Ireland abandoned its cumbersome government formation system and used the same one that works everywhere else, one that does not risk producing the danger inherent in ours, a stalemate that provokes a constitutional crisis.