Constitutional basis for Ministers not members of the Oireachtas

#1 · 27-04-2020 10:29am #1

The Bunreacht states that members of the government must be members of the Oireachtas. For example Regina Doherty continues as a Minister (amongst others) and a member of government but is not a member of the Oireachtas. What's the constitutional basis for this nearly 3 months after the election?

is_that_so · 27-04-2020 10:35am

namloc1980 wrote: »

The Bunreacht states that members of the government must be members of the Oireachtas. For example Regina Doherty continues as a Minister (amongst others) and a member of government but is not a member of the Oireachtas. What's the constitutional basis for this nearly 3 months after the election?

Article 28.1

If the Taoiseach at any time resigns from office the other members of the Government shall be deemed also to have resigned from office, but the Taoiseach and the other members of the Government shall continue to carry on their duties until their successors shall have been appointed.

namloc1980 · 27-04-2020 10:38am

is_that_so wrote: »

Article 28.1

Still doesn't say they can continue without being members of the Oireachtas? i see the next section covers it:

28.11.2 The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed.

Long_Wave · 27-04-2020 10:48am

When Dev wrote the constitution, he would never have pictured the scenario we have now. I believe this is a matter that needs urgent constitutional reform before the next general election.

Fr Tod Umptious · 28-04-2020 7:56am

Long_Wave wrote: »

When Dev wrote the constitution, he would never have pictured the scenario we have now. I believe this is a matter that needs urgent constitutional reform before the next general election.

So what's your proposal ?

Pandemic or not when three parties finish very close in an election and a combination of any two of them is still not enough for a majority then you are going to have difficulty with government formation.

ELM327 · 29-04-2020 11:34am

It is a messy situation however constitutionally it is covered. Realistically this could continue indefinitely.

Going forward I would like to see reform in this area. Specifically a deadline set for new government formation and a mandatory second election called if a government not formed in X days.

Long_Wave · 29-04-2020 11:45am

Fr Tod Umptious wrote: »

So what's your proposal ?

I propose if the dail fails to elect a taoiseach when it meets after a GE, that the chief justice of the supreme Court becomes taoiseach and he/she gets to appoint a small technocrate cabinet. The dail then have 90 days to elect a taoiseach before an new election is called.

ELM327 · 29-04-2020 11:54am

Long_Wave wrote: »

I propose if the dail fails to elect a taoiseach when it meets after a GE, that the chief justice of the supreme Court becomes taoiseach and he/she gets to appoint a small technocrate cabinet. The dail then have 90 days to elect a taoiseach before an new election is called.

Strongly disagree.

I counter suggest, retaining your 90 days timeframe but tying it to the current scenario, the existing taoiseach and government remain until either a new one is elected or 90 days pass, in which case another election is called.

After the 90 days, TDs are no longer paid unless and until a government is formed.

Peregrinus · 30-04-2020 3:11am

ELM327 wrote: »

It is a messy situation however constitutionally it is covered. Realistically this could continue indefinitely.

Going forward I would like to see reform in this area. Specifically a deadline set for new government formation and a mandatory second election called if a government not formed in X days.

Long_Wave wrote: »

I propose if the dail fails to elect a taoiseach when it meets after a GE, that the chief justice of the supreme Court becomes taoiseach and he/she gets to appoint a small technocrate cabinet. The dail then have 90 days to elect a taoiseach before an new election is called.

The thing is, calling another general election just extends, by six weeks or so, the period during which there is no government enjoying the confidence of the Oireachtas without any guarantee that the result of the new election will change matters. It could just as easily make matters worse, by leaving all parties even further from a majority than they already are.

Israel has just had three successive general elections in an attempt to enable a majority government to be formed; no go.

Fr Tod Umptious · 30-04-2020 8:56am

ELM327 wrote: »

Strongly disagree.

I counter suggest, retaining your 90 days timeframe but tying it to the current scenario, the existing taoiseach and government remain until either a new one is elected or 90 days pass, in which case another election is called.

After the 90 days, TDs are no longer paid unless and until a government is formed.

So in 8 days time you stop paying the people who are trying to keep the country afloat, the ones making important decisions about public health and the economy while at the same time working hard to form a stable government ?

ELM327 · 30-04-2020 10:52am

Yes. As they have not formed a government, which is their job that they were elected to do.
You can't live on locum government forever

As it stands, no laws can be passed until a resolution is found, as nothing can pass the seanad until a Taoiseach - not a locum - nominates the remaining members

Townton · 03-05-2020 11:53pm

ELM327 wrote: »

Yes. As they have not formed a government, which is their job that they were elected to do.
You can't live on locum government forever

As it stands, no laws can be passed until a resolution is found, as nothing can pass the seanad until a Taoiseach - not a locum - nominates the remaining members

Actually the constitution does allow the Taoiseach to summon the senate before his successor appoints his nominees. Also given the fact the Seanad has regularly sat with less then a full contingent there is nothing specifically preventing the Taoiseach from convening the senate without the 11 appointed senators which would be away around the issue of getting legislation passed.

As for ministers staying in office Ireland is actually unusual in requiring that ministers must be members of the legislator most European countries don't require this and governments staying in place in an acting capacity is the norm not an outlier.

In regards to it not being "constitutional" there is little enough other then conjecture to suggest it isn't. Irony being most of those that complain along this line of argument happen to be SF who cant by any stretch of the imagination be described as constitutionalists.

sabat · 04-05-2020 12:06am

Maybe a test case from some angle in the Supreme Court could have this settled by precedent/opinion rather than a referendum. What if a senior minister died a week after the election?

blanch152 · 06-05-2020 5:23pm

Peregrinus wrote: »

The thing is, calling another general election just extends, by six weeks or so, the period during which there is no government enjoying the confidence of the Oireachtas without any guarantee that the result of the new election will change matters. It could just as easily make matters worse, by leaving all parties even further from a majority than they already are.

Israel has just had three successive general elections in an attempt to enable a majority government to be formed; no go.

Or you could have the situation like in Germany in the early 1930s, whereby you had an even worse outcome.

lawred2 · 08-05-2020 8:29am

Long_Wave wrote: »

I propose if the dail fails to elect a taoiseach when it meets after a GE, that the chief justice of the supreme Court becomes taoiseach and he/she gets to appoint a small technocrate cabinet. The dail then have 90 days to elect a taoiseach before an new election is called.

Much prefer the way it works now to doing that.

ELM327 · 08-05-2020 9:51am

Townton wrote: »

Actually the constitution does allow the Taoiseach to summon the senate before his successor appoints his nominees. Also given the fact the Seanad has regularly sat with less then a full contingent there is nothing specifically preventing the Taoiseach from convening the senate without the 11 appointed senators which would be away around the issue of getting legislation passed.

As for ministers staying in office Ireland is actually unusual in requiring that ministers must be members of the legislator most European countries don't require this and governments staying in place in an acting capacity is the norm not an outlier.

In regards to it not being "constitutional" there is little enough other then conjecture to suggest it isn't. Irony being most of those that complain along this line of argument happen to be SF who cant by any stretch of the imagination be described as constitutionalists.

I never claimed it was unconstitutional. Far from it. And I'd rather eat my own face than vote SF

da_miser · 09-05-2020 1:57am

Does it really matter when the strings are pulled from abroad?
Remember when the Irish budget was published in german newspapers before it was announced by the Irish Government in the Dail?
The Irish government are now nothing more than a county council waiting for central government(EU/Germany) to release money to spend on mickey mouse projects.

Mjolnir · 09-05-2020 2:27am

Long_Wave wrote: »

I propose if the dail fails to elect a taoiseach when it meets after a GE, that the chief justice of the supreme Court becomes taoiseach and he/she gets to appoint a small technocrate cabinet. The dail then have 90 days to elect a taoiseach before an new election is called.

Art 35.3 states judges aren't eligible to be members of the house of oireachtas or hold another office.
Separation of powers couldn't be upheld in that scenario.

Caquas · 15-05-2020 12:07am

Bad enough that we don’t have an elected Government. The unmentionable truth is we don’t have a Parliament either!

Yes, I see those socially distanced TDs in the Dail Chamber pontificating about the crisis but they are not able to legislate because no laws can be enacted until an elected Taoiseach nominates 11 Senators to complete the new Seanad.

What Bills are currently before Dáil Éireann? None, zilch, not a sausage. What we have is a talking shop in the Leinster House which can’t even unlay the Guerin Report. Need a new law to deal with this crisis? Too bad, not for another month at least. Now we have unelected Ministers making Statutory Orders to fill the legal gaps and Gardai pretending they have powers to enforce social distancing.

If Gemma//John weren’t such headbangers they might have a constitutional case before the crisis is over.

L1011 · 15-05-2020 12:26am

Caquas wrote: »

If Gemma//John weren’t such headbangers they might have a constitutional case before the crisis is over.

On what basis?

What has occurred that is actually against the constitution?

Caquas · 15-05-2020 8:32am

L1011 wrote: »

On what basis?

What has occurred that is actually against the constitution?

As I explained, there is no way to pass legislation at present, so crisis measures are being taken on the basis of existing law.

We have a hodge-podge of measures included in an Emergency Act passed by the new Dail but with the old Seanad on the last day of its existence (another first in our history that went unremarked).

As we maintain many restrictions over the coming months, it will get much trickier to manage. And there’ll be lots of scope for complaints to the courts that some arm of government is acting without legal authority. Most fundamentally, what specific legal authority does anyone have to force a healthy person to self-isolate or keep social distance. At present, it is all voluntarily. Consider the issue of over-70s cocooning - turned out they couldn’t enforce it.. There are long-standing laws about detaining infectious people but that’s different.

Our politicians love to “hold the government to account” but all they do is grandstand in the Dail. The Dáil’s real business is to make laws but for decades we handed over the power to legislate to Ministers who issue Statutory Instruments on everything conceivable.

There is a constitutional train wreck coming down the tracks and if it is not fixed soon, someone will stand up in court and say the Emperor has no clothes. If the government formation talks collapse, we will be in total chaos and no one will be able to disguise it.

L1011 · 15-05-2020 8:45am

Nothing you've mentioned there is actually unconstitutional, though.

That no new legislation is capable of being passed is inherently due to the constitution - its being upheld there.

Peregrinus · 15-05-2020 9:07am

I think there are three separate constitutional issues here.

The first is the constitutional impasse we are currently in. As matters stand, the Oireachtas cannot enact legislation. That’s not unconstitutional; it is a product of the way the constitution works. But it’s not a good position to be in.

The Oireachtas recognised this problem and sought to address it at a time when it could still enact legislation by passing an Act that conferred unusually wide powers to make secondary legislation to address the consequences of the COVID-19 pandemic.

Useful as that is, it’s really only a band-aid. If some need arises that was not foreseen in the drafting of that legislation, and it can only be addressed by primary legislation, we could be in a very awkward position. In the short term, the only way out of this might be to elect a Taoiseach who could then appoint new Senators so the Oireachtas would again be capable of legislating. But we’re in the situation we’re in because the Dail cannot elect a Taoiseach.

In the longer term, we should think about whether a constitutional amendment is required so that we don’t find ourselves in this bind again.

The second problem; is the emergency legislation conferring such wide powers on the government/on Ministers itself unconstitutional? There has of course already been one court challenge to it, but it was a laughable attempt, as was pretty much to be expected from that particular quarter. But the fact that those litigants didn’t raise any serious constitutional issues doesn’t mean that there are none to be raised. Is this an improperly wide delegation of the Oireachtas’s power to legislate?

And the third problem is that, even if the power is validly delegated to them, each regulation or order that a Minister makes in exercise of the power can itself be scrutinized, and possibly challenged, on constitutional grounds. Fairly sweeping restrictions are being imposed on people and businesses and - ahem - not all of them are being expressed with perfect clarity and precision. So I wouldn’t rule out the possibility that some of them will be found not to pass constitutional muster, if challenged in the right circumstances. We’re making laws here of a kind that we have never made before, and they may raise constitutional questions that have never yet been considered by the courts.

Caquas · 15-05-2020 10:29am

Peregrinus wrote: »

I think there are three separate constitutional issues here...

Thanks for an excellent analysis of the legal position.

Has anyone read anything like this in the Irish media? Reams of newsprint, endless hours of pointless chatter about this crisis but the fact that our Parliament cannot legislate is simply ignored. Plenty of ill-informed handwringing by the Irish media (and social media) about democracy under threat elsewhere (Trump, Hungary) but this is happening under our noses and one dares speak its name.

Ultimately, if. coalition talks totally fail, there is only one remedy - another election. How would that work during a pandemic? Leo could advise the President to dissolve the Dail but the President has absolute discretion to refuse although that just puts the onus back on the parties to negotiate. Will Michael D.get mixed up in coalition talks?

Peregrinus · 15-05-2020 1:13pm

Caquas wrote: »

Thanks for an excellent analysis of the legal position.

Has anyone read anything like this in the Irish media? Reams of newsprint, endless hours of pointless chatter about this crisis but the fact that our Parliament cannot legislate is simply ignored. Plenty of ill-informed handwringing by the Irish media (and social media) about democracy under threat elsewhere (Trump, Hungary) but this is happening under our noses and one dares speak its name.

Ultimately, if. coalition talks totally fail, there is only one remedy - another election. How would that work during a pandemic? Leo could advise the President to dissolve the Dail but the President has absolute discretion to refuse although that just puts the onus back on the parties to negotiate. Will Michael D.get mixed up in coalition talks?

The choice is not confined to viable coalition or immediate election. You could, for example, elect a Taoiseach on the basis that he will lead an interim national government (involving all parties that are willing to join it) until such time and conditions allow an election, at which point there will be an election. And no doubt you could come up with other possibilities.

All democratic constitutions suffer from one inescapable flaw, which is that they won't work unless the democratic mechanisms deliver power to leaders who are committed to making them work. There's no tinkering you can do with a democratic constitution which will avoid this. Which means that a democratic constitution is never enough, on its own, to guarantee the survival of democracy; you also need a solid democratic political culture. And if your problem is the lack of such a culture, tinkering with the constitution is not going to solve it.

Caquas · 15-05-2020 8:49pm

Peregrinus wrote: »

The choice is not confined to viable coalition or immediate election. You could, for example, elect a Taoiseach on the basis that he will lead an interim national government (involving all parties that are willing to join it) until such time and conditions allow an election, at which point there will be an election. And no doubt you could come up with other possibilities...

There are constitutional options but in practical politics, this Dail won’t elect a Taoiseach unless a majority can be mustered by some durable arrangement, whether a formal coalition or some loose alignment with independents. The interim government you suggest won’t fly because no one will trust the incumbent to step down. Remember, the Dail can’t simply dismiss the government, it has to elect an alternative. And the Taoiseach is elected, not appointed like many Prime Ministers.

One option canvassed here is not constitutional - a technocratic government. All Ministers must be TDs (two can be Senators but..ah, jaysus).

Caquas · 16-05-2020 4:15pm

Peregrinus wrote: »

The choice is not confined to viable coalition or immediate election....

Signs that the choice now is coalition or elections:

[URL="FG putting party before country - FF negotiator Cowen https://www.rte.ie/news/politics/2020/0516/1138799-government-formation-talks/"]FG putting party before country - FF negotiator Cowen https://www.rte.ie/news/politics/2020/0516/1138799-government-formation-talks/[/URL]

Might be just a tactic to scare the Greens but FF are pissed because FG have a fallback plan: to cash in on their new-found popularity which they know will evaporate soon, at the latest by October when they produce their Budget 2021.

Even the IT thinks the Green demands are too much

https://www.irishtimes.com/life-and-style/20-ways-the-greens-in-government-could-change-irish-life-and-yours-1.4253384

Alan Kelly sees an opportunity and is playing hard to get:
https://www.independent.ie/irish-news/politics/kelly-walks-away-from-talks-over-unrealistic-tax-pledges-39209899.html

I can’t see a new Taoiseach being elected before mid-June and we could well be stuck for many months with the crowd that lost the election but there’s no way they could get a budget passed in October. Could we have a Dail that is dissolved because it can’t elect a Taoiseach and a Seanad that is dissolved before it ever meets? That’s a constitutional train wreck!

Podge_irl · 16-05-2020 5:16pm

Caquas wrote: »

That’s a constitutional train wreck!

Except it isn't. It all perfectly follows the constitution. You just don't like it.

Caquas · 16-05-2020 8:14pm

Podge_irl wrote: »

Except it isn't. It all perfectly follows the constitution. You just don't like it.

I didn’t say it was an unconstitutional train wreck.

And it’s not a matter of personal preference- it would be a fundamental failure of our constitutional democracy if the 33rd. Dail fails to elect a government.

Don’t get me started on Seanad Éireann. It is beyond redemption and we were deceived in 2013 by their promises of reform. However, the “elected” Senators are not to blame for their total incapacity on this occasion.

L1011 · 16-05-2020 8:57pm

Caquas wrote: »

we were deceived in 2013 by their promises of reform.

?

There were no promises of reform except from those who wanted to protect the crapshow

The options were get rid or keep as-is. The vested interests in keep as-is may have hinted at reform but it was never on the agenda and they were never going to introduce it it.

The idea of "reform don't remove" was a lie. The people voted to keep; by a decent majority - they may have been deceived but who's going to admit to that?

Caquas · 16-05-2020 11:22pm

L1011 wrote: »

?

There were no promises of reform except from those who wanted to protect the crapshow

The options were get rid or keep as-is. The vested interests in keep as-is may have hinted at reform but it was never on the agenda and they were never going to introduce it it

The polls were massively in favour of abolition until high-profile Senators pushed a reform agenda. Abolition was rejected by a narrow margin, 51%.
https://www.michaelmcdowell.ie/inside-the-seanad.html
To this day, they talk reform but nothing will happen. Especially not now when they can’t even meet!

Podge_irl · 16-05-2020 11:32pm

Caquas wrote: »

And it’s not a matter of personal preference- it would be a fundamental failure of our constitutional democracy if the 33rd. Dail fails to elect a government.

Why? Parliaments the world over fail to form governments at times.

Boulevardier · 16-05-2020 11:47pm

Ministers not returned to the Dail should sit in and speak from the bull-pen, not from TDs seats.

Caquas · 17-05-2020 12:33pm

Podge_irl wrote: »

Why? Parliaments the world over fail to form governments at times.

It is very rare for any Parliament to be dissolved without ever electing a government. It has never happened to Dáil Éireann and it was never seriously contemplated before now.

The Cortes was dissolved by royal decree in 2016 five months after the 2015 election and when government formation talks had definitively failed. That was a first for democratic Spain and no one pretended it was other than a constitutional failure.

Has it ever happened in Westminster? The Fixed-Term Act caused confusion last year but that’s a different matter entirely. And Her Majesty’s Government doesn’t automatically resign because the plebs revolted in an election.

Caquas · 17-05-2020 2:55pm

Boulevardier wrote: »

Ministers not returned to the Dail should sit in and speak from the bull-pen, not from TDs seats.

No one speaks from the bull-pen but the Dail could arrange separate (socially distanced!) seating for Ministers who are not TDs, just as Ministers traditionally speak from the front of the Seanad Chamber. It was so rare for a Minister not to be a TD that no arrangements were needed but maybe we need to get used to unelected Ministers. :mad:

L1011 · 17-05-2020 9:55pm

Caquas wrote: »

The polls were massively in favour of abolition until high-profile Senators pushed a reform agenda. Abolition was rejected by a narrow margin, 51%.
https://www.michaelmcdowell.ie/inside-the-seanad.html
To this day, they talk reform but nothing will happen. Especially not now when they can’t even meet!

But the offer on the table was still remove or keep as-is; though. Reform was nonsense made up by Senators to protect their jobs

Peregrinus · 18-05-2020 2:20am

Caquas wrote: »

It is very rare for any Parliament to be dissolved without ever electing a government. It has never happened to Dáil Éireann and it was never seriously contemplated before now.

The Cortes was dissolved by royal decree in 2016 five months after the 2015 election and when government formation talks had definitively failed. That was a first for democratic Spain and no one pretended it was other than a constitutional failure.

Has it ever happened in Westminster? The Fixed-Term Act caused confusion last year but that’s a different matter entirely. And Her Majesty’s Government doesn’t automatically resign because the plebs revolted in an election.

It has never happened in Westminister partly because Westminster has an electoral system that is all but guaranteed to deliver a majority to some party, even if a clear majority of the electorate votes against them. The Westminster system prioritises stability of government over democratic legitimacy.

But the other reason that is has never happened in Westminister is that the Westminister parliament doesn't elect the government. The outgoing PM remain in office until he himself judges that he cannot command a majority (which, given the electoral system, is normally not a difficult judgment to make) at which point he goes to the monarch, resigns and advised the monarch to send for whoever he thinks can command a majority. The House of Commons has no direct role in the process.

coylemj · 18-05-2020 2:53am

Peregrinus wrote: »

The outgoing PM remain in office until he himself judges that he cannot command a majority (which, given the electoral system, is normally not a difficult judgment to make) at which point he goes to the monarch, resigns and advised the monarch to send for whoever he thinks can command a majority. The House of Commons has no direct role in the process.

I'm not sure that the outgoing PM nowadays 'advises' the monarch who to call. The last time this did happen was in the 1960s when Macmillan was PM, in poor health and resigned. He advised the queen to call Alec Douglas-Home.

But that was in the days before the Conservative Party had a mechanism to elect a party leader.

Peregrinus · 18-05-2020 4:45am

coylemj wrote: »

I'm not sure that the outgoing PM nowadays 'advises' the monarch who to call. The last time this did happen was in the 1960s when Macmillan was PM, in poor health and resigned. He advised the queen to call Alec Douglas-Home.

But that was in the days before the Conservative Party had a mechanism to elect a party leader.

Which means that the outgoing PM resigns as party leader while remaining PM, waits for the party election process to be completed, and then resigns as PM, advising the monarch to send for whoever has just been elected party leader. Just as Teresa May did last year.

When PM loses a general election, he or she resigns as PM and advised the monarch to send for the Leader of the (successful) Opposition.

The point is, in neither case does the House of Commons get to vote on the matter. There won't be a parliamentary vote until (a) the new PM is installed, and (b) a vote of confidence is moved in Parliament (which is not routine, following installation of a new PM - Boris Johnson, for example, has never faced a vote of confidence as PM, either in this Parliament or in the last one).

coylemj · 18-05-2020 1:08pm

Peregrinus wrote: »

Which means that the outgoing PM resigns as party leader while remaining PM, waits for the party election process to be completed, and then resigns as PM, advising the monarch to send for whoever has just been elected party leader. Just as Teresa May did last year.

When PM loses a general election, he or she resigns as PM and advised the monarch to send for the Leader of the (successful) Opposition.

I accept 100% what you say about the HoC having no role, I'm disputing that an outgoing PM 'advises' the monarch in any fashion whatsoever. I should add that when the PM 'advises' the monarch to do something, it's effectively an order and she must act on it.

There was a big debate in the aftermath of Macmillan resigning in 1963 and whether he had the right to shaft 'RAB' Butler by advising the queen to call Alec Douglas-Home. There was an argument which said that as the PM had resigned, he was no longer in a position to offer any 'advice' to the monarch. And that in theory, she could have ignored Mac and called RAB Butler.

In the present day, it's possible that after a Govt. is defeated in a general election, the outgoing PM (Major in 1997, Brown in 2010) informs the queen as a courtesy that so and so appears to have a majority in the HoC but the monarch is not obliged to act on that and it in no way constitutes 'advice' that must be followed.

That's my tuppence worth.

Caquas · 18-05-2020 11:02pm

I’m no fan of the monarchy but at least the Queen has never been stuck with the loser PM and no Parliament for months on end.

All our media commentators pontificating in the past few days about contingency planning and legal deadlines for polling but not one of them mentioned the real issue if Leo wants to go to the country. He would have to go to the Aras first and Michael D could become the first President to refuse to dissolve the Dail. The problem for Michael D is that, without FG , the only possible government is his worst nightmare: a Sinn Fein-led coalition.

coylemj · 19-05-2020 1:09am

Caquas wrote: »

.. if Leo wants to go to the country. He would have to go to the Aras first and Michael D could become the first President to refuse to dissolve the Dail.

It doesn't say this in the constitution but the only plausible reason why a president would refuse to grant a dissolution is that there is a possibility that the Dáil might get around to electing a Taoiseach.

And as they have failed to do so for 100 days or more, it's pretty unthinkable that Michael D. would refuse if Leo asks him to dissolve the Dáil in order to hold another general election.

Peregrinus · 19-05-2020 2:09am

coylemj wrote: »

I accept 100% what you say about the HoC having no role, I'm disputing that an outgoing PM 'advises' the monarch in any fashion whatsoever. I should add that when the PM 'advises' the monarch to do something, it's effectively an order and she must act on it.

A retiring PM absolutely does advise the monarch who to send for - normally.

If the PM is resigning because he has lost an election, he will advise the monarch to send for the victorious leader of the opposition.

If the PM is resigning because he has lost or stood down from the party leadership, he will advise the monarch to send for his successor as party leader.

In both cases, the monarch has no real choice but to comply. But note that, also, in both cases, the PM has no real choice about what advice to give.

In the past, when party leadership process were more, um, flexible, a PM resigning because he was standing down as party leader might be, in effect, in a position to nominate his own successor by advising the monarch to send for Mr X rather than Mr Y. The party leadership process would then ensue, but Mr X might enjoy an advantage by being the incumbent PM. (Churchill was not installed as leader of the Conservative Parliamentary Party until about 7 months after he became PM, as an example. Historians doubt that he would have been chosen as party leader if Chamberlain had stood down from that office in May 1940.)

Something similar could conceivably still happen today if a party leader had to stand down immediately because of ill-health, say, and so a new PM had to be found before the governing party had chosen a new leader. But the ability of a PM to pull off this trick successfully really depends on his party being willing to be swayed by his attempt to influence the selection of his successor.

Could the monarch reject a retiring PM's advice? A complex question. In general, the monarch absolutely has to accept the PM's advice because, if they do not, the PM will resign ("I cannot act as principal adviser to a monarch who has no confidence in my advice") and the monarch will then have set themselves against the democratically-elected representatives of the people. That can only end one way, so no monarch will ever go there.

But if the PM is resigning anyway, he can hardly threaten to resign if his advice about who to send for in his stead is not accepted. So there is a view that this is one occasion on which a monarch could reject the PM's advice. But probably the only proper grounds for doing so would be that the PM was advising to send for someone who, in fact, could not secure the support of Parliament. And the monarch would be very slow to be seen to make that judgment, since it's parliament's business to make that judgment. So, even if the monarch doubted that Mr X could command a majority, they would probably appoint Mr X anyway and allow the HoC to vote no confidence in him.

Another scenario that could arise is that a PM might tell the monarch that he doubts that anyone in the Commons can support a majority - e.g. there is a hung parliament, and efforts to construct a cross-party government have failed. In such a case the PM would probably not resign, though; he would advise the monarch to dissolve parliament and hold an election, and indicate his intention to resign as soon as anyone emerged who could command the support of the new Parliament.

The other possiblity that could arise is that the PM might leave office without offering any advice at all as to his successor - most obviously, if the PM suddenly drops dead. In that case, the monarch would consult other senior figures, most likely as to who was best positioned to command the confidence of Parliament. In practice this would mean the governing party choosing an interim leader, and the monarch being advised by senior figures in that party to send for him.

But, to get back to the point of relevance to this thread, the big difference in all these scenarios from the Irish constitutional position is that in none of them is the House of Commons consulted on who should be appointed as PM. There is never a parliamentary vote on this question. A new PM is identified by internal party mechanisms (over which an outgoing PM may or may not have some influence) and the person so identified is appointed. Parliament can react to that appointment by voting no confidence, but they get no say until after the appointment has been made. Whereas in Ireland the only way you can be appointed as Taoiseach is on the basis of election by Dail Eireann. It's the complete opposite of the UK process.

Caquas · 19-05-2020 8:22am

coylemj wrote: »

It doesn't say this in the constitution but the only plausible reason why a president would refuse to grant a dissolution is that there is a possibility that the Dáil might get around to electing a Taoiseach.

And as they have failed to do so for 100 days or more, it's pretty unthinkable that Michael D. would refuse if Leo asks him to dissolve the Dáil in order to hold another general election.

This is exactly what it says in Bunreacht na hEireann:

The President may in his absolute discretion refuse to dissolve Dáil Éireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Éireann.

The issue is whether Michael D. would deny a dissolution if Leo asked him. I say he could if the current Dail could elect a government without FG. That is entirely feasible if FF dropped their opposition to SF but Michael D would rather abort this useless Dail and have an election in the middle of a pandemic.

All of which pushes FG & FF into an alliance with the most ideological party in the Dail whose agenda will throttle the economy at the moment it desperately needs a boost.

Oh, and important parts of our criminal justice law will lapse on 30 June if they don’t elect a Taoiseach [URL="Anti-terrorist and criminal gang laws may lapse by end of June via The Irish Times https://www.irishtimes.com/news/politics/oireachtas/anti-terrorist-and-criminal-gang-laws-may-lapse-by-end-of-june-1.4256687"]Anti-terrorist and criminal gang laws may lapse by end of June via The Irish Times https://www.irishtimes.com/news/politics/oireachtas/anti-terrorist-and-criminal-gang-laws-may-lapse-by-end-of-june-1.4256687[/URL]

Hermy · 19-05-2020 8:40am

Caquas wrote: »

...we have unelected Ministers making Statutory Orders to fill the legal gaps...

I'm struggling here.

Can you name any of these unelected Ministers?

Caquas · 19-05-2020 9:17am

Hermy wrote: »

I'm struggling here.

Can you name any of these unelected Ministers?

Shane Ross and Katherine Zappone lost their seats in the Dail. And all of the current Cabinet resigned three months ago because they don’t have the confidence of Dáil Éireann.

But the Dail has to elect a new Taoiseach to get rid of them.

Hermy · 19-05-2020 9:26am

Caquas wrote: »

Shane Ross and Katherine Zappone lost their seats in the Dail. And all of the current Cabinet resigned three months ago because they don’t have the confidence of Dáil Éireann.

But the Dail has to elect a new Taoiseach to get rid of them.

But they were elected, weren't they?

They didn't just stumble in off the street.

Peregrinus · 19-05-2020 9:29am

They did not resign three months ago because they didn't have the confidence of Dail Eireann.

They were deemed to have resigned by operation of Article 28.11.1 of the Constitution because the Taoiseach had resigned. Art 28.11.1 applies regardless of the reason for the Taoiseach's resignation.

Despite having been deemed to have resigned, they are required by Art. 28.11.2 to continue in office until their successors have been appointed. If the Dail has lost confidence in them, and wants them out of office, the remedy lies in the Dail's own hands.

Caquas · 19-05-2020 9:49am

Peregrinus wrote: »

They did not resign three months ago because they didn't have the confidence of Dail Eireann.

They were deemed to have resigned by operation of Article 28.11.1 of the Constitution because the Taoiseach had resigned. Art 28.11.1 applies regardless of the reason for the Taoiseach's resignation.

Despite having been deemed to have resigned, they are required by Art. 28.11.2 to continue in office until their successors have been appointed. If the Dail has lost confidence in them, and wants them out of office, the remedy lies in the Dail's own hands.

What distinction are you making? They had to resign because Leo failed to get re-elected on 20 February (Mary Lou and even Micheál got more support). Leo then went to the Aras and formally tendered his resignation to the President, as he was constitutionally obliged.

Did you want the rest of them traipsing up to the Aras to go through that resignation rigmarole? Have pity on Michael D. !

Do you think the Dail rejected Leo but would have voted for any of his current crew? The fact is they resigned en masse, as required because they couldn’t muster a majority in the new Dail (the one we elected - seems so long ago now). We are stuck with them simply because the Dail can’t get its act together and elect a new Taoiseach. So we agree on the remedy.

Peregrinus · 19-05-2020 11:58am

Caquas wrote: »

What distinction are you making? They had to resign because Leo failed to get re-elected on 20 February (Mary Lou and even Micheál got more support). Leo then went to the Aras and formally tendered his resignation to the President, as he was constitutionally obliged.

Did you want the rest of them traipsing up to the Aras to go through that resignation rigmarole? Have pity on Michael D. !

Do you think the Dail rejected Leo but would have voted for any of his current crew? The fact is they resigned en masse, as required because they couldn’t muster a majority in the new Dail (the one we elected - seems so long ago now). We are stuck with them simply because the Dail can’t get its act together and elect a new Taoiseach. So we agree on the remedy.

No, I'm just interested in accuracy. The fact that they are deemed to have resigned doesn't mean that they have resigned. In fact it means the opposite; if they had resigned there would be no need to "deem" them to have resigned. Plus, their resignation, whether deemed or actual, was not in any way an indication that the Dail had lost confidence in them. The Dail has expressed no view on that, and their resignation has nothing to do with it. They have resigned because, however competent or admired they may be, they ride on the Taoiseach's coattails, and he failed to secure election as Taoiseach.

Saying that they resigned because they lost the confidence of Dail Eireann is not only inaccurate; it also gives the impression that their resignation is in some way a reflection on their own performance as Ministers and that there continuance in office pending a replacement is the more undesirable for that reason. This is, of course, entirely false.

The Dail, as we agree, can bring this situation to an end by electing a Taoiseach. Currently, the person with the best prospects of being elected is, ironically, Varadkar.

moon2 · 19-05-2020 12:13pm

Caquas wrote: »

Shane Ross and Katherine Zappone lost their seats in the Dail. And all of the current Cabinet resigned three months ago because they don’t have the confidence of Dáil Éireann.

But the Dail has to elect a new Taoiseach to get rid of them.

Let's be accurate with our phrasing here, you're referring to our elected officials who continue to fill their constitutional role, as expected, while the new government is being formed.

Constitutional basis for Ministers not members of the Oireachtas

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