Separation of powers: What happens when the powers of state come into conflict?

Eoin O’Malley (10 January, 2011)

A bit like democracy, motherhood and apple pie, everyone is in favour of the separation of powers. But how does it work in Ireland and what happens when there’s a conflict between the branches of state power? What should happen?

Though constitutional lawyers will claim that it is enshrined in the constitution, and certainly judges refer to it frequently, the design of the separation between the executive and legislative branches in Ireland is such that we can only assume the drafters of the constitution wanted a strong executive unencumbered by a legislature.  The legislature is one in name only as effectively all legislation comes from the executive. The legislature’s powers are neither separate nor significant. The independence of the judiciary is more secure, because even though the executive chooses the members of the judiciary the executive has no real way to influence judges once appointed.

The idea of a separation of powers comes from a presidential system where the legislature makes laws that the executive enacts and the judiciary enforces. All this is usually under basic laws laws that are rigid and difficult to change – a constitution – which also sets out which institution can act.  In parliamentary systems this is less pure – but thought to exist nonetheless.

Problems arise when there’s a disagreement about which branch is entitled to act in what way. Often we see the executive behaviour censured in the courts because the court says it was acted beyond its powers – ultra vires. The courts have been quick to assert what are judicial functions and what are executive or legislative ones. So the Oireachtas was upbraided for its inquiry to the killing of John Carty in Abbeylara. This decision led to the Houses of the Oireachtas abandoning inquiries, even though they are seen as an important tool of accountability in virtually every legislature in the world.

Ultimately if there is a disagreement on the separation of powers the judiciary has the job of deciding who is right. This is problematic for two reasons. One, the judiciary has shown itself to be unwilling to interfere in the relationship between the government and the Dáil to uphold the rights of the Dáil to hold the government to account (for instance O’Malley v. Ceann Comhairle).  In the recent Doherty judgement, the High Court showed itself not to understand that there is a legal separation between the government and the Dáil. Second, it seems unfair that one institution has all the power to adjudicate over disputes between it and the others. So if the executive doesn’t agree that it cannot make a certain decision because this amounts to a judicial function, to whom can it appeal – to the judiciary.

In any redesign of the constitution that may take place in the coming years, this anomaly should be dealt with. Perhaps here the president and the council of state could be the ultimate arbiter of separation of powers disputes – where the other two branches, the executive or legislature feel that the judiciary has denied one or other its rights. To work there’d have to be only very few of them, so only the government or a certain number of TDs could ask the council of state to consider a dispute. It could also give the president something more useful to do than delay rugby matches.

Twitter: @AnMailleach

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8 thoughts on “Separation of powers: What happens when the powers of state come into conflict?

  1. @Eoin,

    A good and timely post. Thank you. But I think that those of use who keep rabitting on about the ‘separation of powers’ are probably being a bit lazy and using it as shorthand for the ‘allocation and exercise of powers’. My ambitions in this respect are quite limited – and probably more limited than most here. These include revisions of standing orders to allow the Dail to have more control over the order of business, to empower and resource cttees to test policy proposals and draft legislation, to commission research that would contest the basis for these proposals and to hold hearings that would allow rebuttal and counter-rebuttal, to review the implementation of legislation, to scutinise certain public appointments, to conduct inquiries in policy areas, etc.

    This is just a gradual process to re-establish the primacy of the Dail. And there is space to do it now, since monetary, fiscal and most of economic sovereignty is held by the Troika.

  2. Fintan O’Toole has been pointing out recently how even when a non-govt. TD puts forward a motion just to merely correct an error in legislation it is defeated and then the Minister puts forward his own correction.

  3. Executive and Legislative powers do not come into conflict under the mechanism of government set out in our 1937 constitution does not happen.

    This is because there is a fusion between the Government (Executive) and the Dáil (Legislature). All but two members of the government must be TDs. There may be two from the Senate, which in turn is usually dominated by Government supporters.

    This is of course the UK model. (Those who are interested in a primer on this see http://www.lawiki.org/lawwiki/Separation_of_powers)
    In this, Ireland is at one end of a spectrum in Europe, as UCD’s Dr. Niamh Hardiman pointed out in this table taken from her excellent paper on The Impact of the Crisis on the Irish Political System’ at a Statistical and Social Inquiry Society of Ireland Symposium on Resolving Ireland’s Fiscal Crisis in November 2009 http://www.ssisi.ie/Hardiman26-11-09.pdf

    In the Netherlands and Norway, around half of all ministers have never been MPs, as TCD’s Professor Michael Gallagher pointed out recently. He also commented that “While in Ireland all ministers must be members of parliament, in certain European countries (notably France, the Netherlands, Norway and Sweden) the offices of MP and government minister are incompatible.” (Michael Gallagher “The Oireachtas President and Parliament” in John Coakley, Michael Gallagher (eds) Politics in the Republic of Ireland 5th Ed. PSAI Press Routledge 2010. p.225)

    In response to the 1980s crisis (which was not as bad as this one, IMO), two friends and I advocated a complete separation of powers, to cut the tie between the Dáil as legislature and the Government as Executive/Rialtas, so that both could be improved.
    Because of the tie between both powers, any rise in the efficacy of one implies a decline in the efficacy of the other. (see here http://193.120.95.144/politics/design-for-democracy.pdf)

    Montesquieu, a pre-revolutionary French political commentator, who formulated the idea of tripartite powers in government noted that “When the legislative and executive powers are united in the same person, there can be no liberty”.

    The recent rushing through the Dáil of bank resolution legislation -in one day – is an excellent example of the lack of liberty that our current constitution encapsulates.

  4. Separation of powers is a good thing – up to a point. Yes, non-ministerial TDs of all parties should have a more meaningful role than they do at present, as pretty much all contributors to this site seem to agree, both in terms of policy formulation and scrutiny of government. But a genuine separation of powers is simply impossible to achieve in a parliamentary system, where parliament elects the government – and I don’t think anyone is seriously proposing that this country adopts a presidential system.

    Nor should we assume that all wisdom lies with parliament, and if only TDs were free of party whips the quality of governance would improve. Cohesive parliamentary parties are central to parliamentary government. It just wasn’t the case during the 2000s that high-minded government TDs were dragooned by pressure from the whips into voting, against their better judgement, for policies of ‘light touch regulation’ which allowed the banks to borrow and lend on a catastrophic scale.

    This country is pretty much unique in the insistence that all ministers be TDs, and earlier discussions on this site have pointed up the disadvantages of this. Still, we should not exaggerate the ‘separation’ of parliament and government elsewhere. Even in countries where ministers need not or cannot be MPs, most are current or former MPs. In France, for example, ministers cannot be MPs, but typically they are elected to parliament; stand down upon appointment as a minister, to be replaced by a designated substitute; and run for parliament again at the next election, as their substitute obligingly stands aside for them. French governments may sometimes be constrained by parliament, but simply because the parliamentary leader of the governing party may be an internal party rival of the prime minister and tries to thwart the latter’s plans. The French National Assembly is, despite the rule debarring ministers from being MPs, among the weakest in Europe – probably even weaker than Dáil Éireann.

    • Even if we stick with a parliamentary system (and eschew a more naked separation of powers via a presidential type setup) I would still think there’s a good case for altering some of the present arrangements for Oireachtas dissolution.

      A whip is definitely needed to some degree in a parliamentary system to impose discipline. Our whip system is IMO overly strong though. Changes in procedures/standing orders and measures such as a strengthened committee system should improve things. But I have doubts as to whether this will suffice.

      I’ve wondered if modifications to our parliamentary dissolution mechanisms might not improve things further. As I’ve mentioned on this site previously, the 1996 report of the Constitution Review Group (see pages 86-88 of http://www.constitution.ie/reports/crg.pdf) actually recommended adoption of a German style “constructive vote of no confidence” mechanism (where a motion of no confidence can only be tabled if the name of an alternative Taoiseach is attached, and who will replace the incumbent if the vote actually succeeds). The report also discusses pros and cons of fixed term parliaments but finally recommends that, even under a constructive no confidence mechanism, the Taoiseach should be still allowed to request Oireachtas dissolution as usual from the President.

      I’d agree that fixed term parliaments (such as in Norway) are too rigid. But parliamentary dissolution is far too easy to do in this country IMO. There’s a whole spectrum in ease of parliamentary dissolution, with Norway at one extreme to the UK at the other end (with ourselves not too far behind the UK). Germany is one of the more awkward places to achieve dissolution, with almost a semi-fixed term setup, with trips to the constitutional court having been required in the past for dissolutions. Some countries require an absolute majority of members of parliament to vote for dissolution before a prime minister is allowed to call elections. A good summary of dissolution arrangements in various countries can be found in the following House of Commons note http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snpc-05530.pdf

      I personally rather like the dissolution arrangements in the Swedish Riksdag. Ordinary parliamentary elections are always held every four years. The government can still call a mid cycle extraordinary election. But such a new parliament may only last until the next scheduled date for ordinary elections. So calling elections 2 years into an ordinary term will result in a new parliament that can last at most 2 years. This recognizes that dissolution is sometimes necessary, but also simultaneously disincentivizes it.

      A “constructive vote of no confidence” mechanism has some potential to weaken the whip system I’d feel. But this would be further boosted by some weakening or extra restriction on the Taoiseach’s power to dissolve the Dáil. A four or five year term setup as in Sweden might not be a bad option (particularly in conjunction with a “constructive vote of no confidence” mechanism).

  5. Our judiciary is granted great independence once actually appointed. But the appointment process itself leaves a lot to be desired IMO. Since 1995 there has been the Judicial Appointments Advisory Board, which provides a list of suitable candidates to the government to choose from (though the government may still ignore this list). But a lot of the appointments process is still shrouded in mystery. And the Sunday Times recently shone a spotlight on behind the scenes canvassing of politicians for appointments to judicial posts ( see http://www.briefcounsel.ie/news_full.php?ref=66707 ).

    Many countries have abandoned direct government appointment of judges and placed the whole process at arm’s length from government. The UK is a good example with the creation of the Judicial Appointments Commission. Northern Ireland has also followed suit (see the Irish Times article http://www.irishtimes.com/newspaper/ireland/2010/0517/1224270540960.html for details).

    IMO an overhaul is needed of the judicial appointments process here, and of public appointments in general, e.g. is it such a good idea to have senior Garda appointments and promotions subject to cabinet approval? Maybe this is something that should be done by a more independent and non-governmental body?

  6. @Michael Gallagher
    Coming to this about 18 months later, I am amused by your statement that “I don’t think anyone is seriously proposing that this country adopts a presidential system.”

    IMO, the way in which general election campaigns are now run here – by all parties – has all the characteristics of the “presidentialisation” of political power here and probably in the UK

    As you may realise, two friends and I did advocate the direct election of the Taoiseach in our 1986 response to the then crisis. The link is given above.

    Even if the links between being a member of the legislative assembly and being a member of the government continue where there is a formal separation of powers between the Government/Rialtas as executive and Parliament/Dáil as legislative assembly, I remain to be convinced that this nullifies the case for completely separating these two parts of government.

    Yes, France is a completely presidential system, with seemingly few checks and balances on the exercise of presidential power. IMO, it is a farce that French ministers stand for election only to be promptly replaced by substitutes.

    It would be enlightening to compare this republic with other smaller countries in terms of the extent to which there is a formal separation of powers between Government and Legislature.

    Given that our government system has failed (ie. it cannot raise the resources it needs to enure a sustainable standard of living for all who want to live and work here) at least twice in 40 years, it can also be asserted that having the Executive drawn completely from the Legislature is less than good, at any point.

    If we want to change the results of a system that produced such failures repeatedly, we have to change the approach.

    That is something that we can learn from the French, who are now on their Fifth Republic:-)

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