Presidential powers could help alleviate potentially destabilising role of Independents in parliamentary system
WHEN THE Dáil meets on Wednesday, its first action will be to elect a ceann comhairle. The precedent has been for the Clerk of the Dáil to accept nominations for this position in the order in which they are submitted to him. In present circumstances Fianna Fáil might decide not to nominate a candidate and by that point Fine Gael and Labour will have agreed on a nominee for this post, if by that time they have agreed to form a coalition government. But any party or group can make a nomination for this office.
One of many Dáil reforms recently proposed would provide that the vote on this issue be taken by secret ballot, instead of, as is the case at present, by an open vote in the Dáil, a practice which means that the choice is in practice made by the government about to be formed. However, it seems that such a change in procedure, even if it were favoured by a majority in the Dáil, would have to await the next Dáil.
Nominations for taoiseach follow the election of the ceann comhairle. Normally the first move here is made by the outgoing government, to whom the ceann comhairle initially looks for a first nomination – followed by an alternative proposal or proposals.
Hitherto the person thus nominated first has always been the outgoing taoiseach – who may or may not secure the necessary majority of those present and voting. But, uniquely in this Dáil, the outgoing taoiseach will be absent. (I have been told that at the first meeting of the Dáil following the 1992 election, one ex-minister who had not been elected turned up in the chamber and was allowed to remain but, of course, did not vote. However, it seems unlikely that Brian Cowen would wish to follow that curious precedent.)
The absence of the outgoing taoiseach is not the only anomaly on this occasion. For, while the Constitution provides (article 28.11) that the members of the government in office at the date of the dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed, it also provides (article 28.7.1) that the taoiseach must be a member of Dáil Éireann – which is no longer the case with our present Taoiseach.
Moreover, article 28.1 provides that the government must consist of not more than 15 ministers – but also not less than seven. And unless Cowen decides to turn up, there will be only six members of the outgoing Government in the Dáil chamber next Wednesday! So both our current Taoiseach and our Government are semi-unconstitutional – a small matter that all concerned have happily been ignoring throughout the past week!
The truth is that on these issues our Constitution would benefit from some redrafting to deal with these anomalies which seem to have been largely ignored both by the Constitution Review Group and by the Oireachtas committee that a decade or so ago reported on proposed reforms.
However, both the review group and the committee did consider whether the president should be given a role in the selection of a new government – as is the case with heads of state in five other European democracies. But the Oireachtas committee rejected this idea saying that when – as has been the case throughout the whole of the past 34 years – no party or group of parties has an overall majority in a new Dáil: “Irish parties have shown themselves as being obliged by the electorate to construct a stable government based on an agreed programme . . . The committee does not feel that the issue is an urgent one: the government formation process in Ireland has not, broadly speaking, been a perplexing one.”
The possible disruptive role of Independents, as distinct from political parties, was thus blandly ignored, despite the fact that barely 10 years earlier we had faced a potential constitutional crisis arising from a threat by an Independent deputy, Tony Gregory, to hold the State to ransom by voting against both candidates for the office of taoiseach – a threat which, had it been implemented, would have left Ireland without an elected government. Although full details of that potential crisis had been made publicly available in 1991, this key issue was nevertheless avoided by the committee
In that situation in 1987 I had felt that, as outgoing taoiseach without a majority in the new Dáil, I had a duty to try to resolve this problem. Even the election of Charles Haughey as taoiseach would be preferable to leaving the State with no taoiseach and no government!
Accordingly, despite the lacuna in the Constitution with respect to a role in this matter, I agreed with President Patrick Hillery that, when I went to him to resign my office, he would send me back to the Dáil, twice if necessary, in order to try to break such a deadlock.
In the event this plan did not need to be implemented, because it turned out that Tony Gregory had been bluffing; in the end he voted for Haughey. But it left me with a conviction that, especially given the potentially destabilising role of Independents in the Irish, as distinct from many other parliamentary systems, the president should, as is the case with a number of other European heads of state, be accorded a constitutional role in the formation of our governments.
Why does our president not have such constitutional role? This goes back to the time when our State was being established. In May 1922, the pro-Treaty government was determined to exclude the English monarch, and his representative the governor-general (although that figure-head was to be chosen by our government and not nominated by the crown), from any but a symbolic role in our affairs. Accordingly – I believe uniquely for a dominion – our Constitution domesticated the appointment of the head of government (and of his ministers), leaving these matters exclusively to the Dáil.
The 1937 Constitution, although it provided for a president, gave him no role in relation to the nomination of the taoiseach, presumably because in international law the monarch remained our head of state until 1949, so giving what was then a purely domestic president a role in the nomination of the taoiseach could have put in doubt the international acceptance of that appointment.
But 60 years later we should surely be able finally to escape from the shadow of the crown, modernising our Constitution so as to facilitate with the help, where necessary, of our president, the election of a taoiseach, and thus of a government, by the Dáil.