Constitutional basis for Ministers not members of the Oireachtas

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

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:

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 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).

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 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.

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.

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.

moon2 wrote: »

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.

I’m being perfectly accurate but your phrase ”elected officials” is a confusing misnomer. Who elected them? This government was elected by the previous Dail (remember how Leo couldn’t wait to ditch Enda and then Leo emerged as the winner of FG’s weird process although Simon was “the people’s champion”. Sin scéal eile)

The current crew are continuing to act as Ministers although they were obliged to resign because the Taoiseach was defeated (in fact, trounced) when he sought re-election. Two of the Ministers don’t even have a mandate from their own constituents.

All this is perfectly constitutional but it is a blot on our democracy and the responsibility rests with the 160 T.D.s we elected on 7 February. Remember when politicians used to boast about their first 100 days? This Dail has managed almost nothing in that time and it is now reduced to a pure talking shop until they elect a Taoiseach.

Peregrinus wrote: »

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.

I find this nonsense troubling because I suspect some Ministers are thinking along these lines i.e. that they didn’t really resign and therefore their position as Ministers is unchanged.

There is no legal or practical difference between a Minister who resigned and one who is “deemed” to have resigned. If any T.D. argues this point, just remind her/him that they were only “deemed” to be elected. The difference now arises from the express provision of an Bunreacht dealing with this exact situation i.e. where the Taoiseach is obliged to resign because he lost the confidence of the Dail. In that case, the Taoiseach and the Ministers must resign but “shall continue to carry on their duties until their successors shall have been appointed.”

So they can’t walk away until their successors are appointed. Nothing strange in that idea, many office holders resign but fulfil their legal duties until a replacement is appointed. The problem is with our democracy i.e. this crew lost their democratic mandate and they should behave accordingly e.g. try to have political support for their decisions and make clear that their decisions are not binding on their elected successors.

The problem is hugely exacerbated by the pandemic and the absence of a functioning legislature.

Caquas wrote: »

The problem is with our democracy i.e. this crew lost their democratic mandate and they should behave accordingly e.g. try to have political support for their decisions and make clear that their decisions are not binding on their elected successors.

This problem can arise in almost any democracy where the executive is appointed directly or indirectly by the parliament.

You say that 'this crew lost their democratic mandate and they should behave accordingly'. I believe that is precisely what they are doing - they have made it clear that that will not make any major policy decisions and are simply keeping the wheels of Govt. moving.

We need ministers to appoint the likes of senior Gardai and to make assorted regulations concerning parking, fisheries etc. You may not like the fact that we have 'unelected ministers' but the fact is that we are stuck with what we have until they are replaced..

You know that the current situation is perfectly within the constitution so can you spare us the continual outbursts of outrage. Put a lid on it!

Talking of 'unelected ministers' ...... let's discuss how Michelle O'Neill became leader of SF in the NI Assembly - who voted for her to be deputy prime minister of NI?

coylemj wrote: »

This problem can arise in almost any democracy where the executive is appointed directly or indirectly by the parliament.

You say that 'this crew lost their democratic mandate and they should behave accordingly'. I believe that is precisely what they are doing - they have made it clear that that will not make any major policy decisions and are simply keeping the wheels of Govt. moving.

We need ministers to appoint the likes of senior Gardai and to make assorted regulations concerning parking, fisheries etc. You may not like the fact that we have 'unelected ministers' but the fact is that we are stuck with what we have until they are replaced..

You know that the current situation is perfectly within the constitution so can you spare us the continual outbursts of outrage. Put a lid on it!

Talking of 'unelected ministers' ...... let's discuss how Michelle O'Neill became leader of SF in the NI Assembly - who voted for her to be deputy prime minister of NI?

Outrage? I simply state the facts however unpalatable to you. Put a lid on it? What are you doing on a chat board?

When have Ministers

made it clear that that will not make any major policy decisions and are simply keeping the wheels of Govt. moving.

Parking regulations and appointing Gardai? They shut down the whole country 10 weeks ago! Yes, it was essential at the time and it had democratic support but they’re still in office and now they are making complex and divisive choices about reopening, often without any legal basis for enforcement. The Leaving Cert is in chaos. We can buy flowers but not floral curtains.

How long do you think this can go on? Six months? A year max.? Then you agree with me but you are more complacent.

Or would you accept this regime indefinitely? Then you’re not a democrat. Fortunately, the absence of the Seanad will stymie them soon.

Michelle O’Neill as DFM? The structures in N.I. are necessary in a society which is so divided that the normal rules of democracy can’t operate. Do you think we can be compared to that or is this pure whataboutery?