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Constitutional basis for Ministers not members of the Oireachtas

namloc1980

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?

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is_that_so

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

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

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.

[Deleted User]

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

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

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

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

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.

[Deleted User]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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!