By Michael Gallagher
There has been some discussion as to whether, in the event of Brian Cowen’s deciding not to contest the forthcoming election, it would be constitutional for him to remain as Taoiseach, given that the constitution states (Art 28.7.1) that the Taoiseach must be a member of Dáil Éireann. There has been speculation that this could create a constitutional difficulty, given that the Taoiseach is nominated by the Dáil. Would we then be without a Taoiseach until the 31st Dáil meets?
No, that wouldn’t be a problem. The constitution also makes clear that “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.” (Art 28.11.2). Otherwise there would be a huge problem, given that by definition there are no TDs once the Dáil is dissolved. Therefore, Brian Cowen, whether he stands at the forthcoming election or not, whether he retains his seat or not, whether he is FF leader or not, remains Taoiseach until the 31st Dáil meets to elect a new Taoiseach.
We have had some precedents. The Tánaiste too must be a member of the Dáil (Art 28.7.1 again), but at the November 1992 election the then Tánaiste, John Wilson, did not contest the election. Nonetheless, he remained Tánaiste until Dick Spring took that position as part of the post-election government formed in January 1993. Likewise, in 2007 Michael McDowell remained Minister for Justice until the 30th Dáil convened, even though he had lost his seat at the election, and there have been other such cases.
That’s not a potential snake in the constitutional grass, so to speak, but one that could be relates to the minimum size of the government. Art 28.1 specifies that the government must contain no fewer than 7 and no more than 15 members (the upper limit has undoubtedly prevented certain past Taoisigh from expanding their patronage powers even further than they did, so we should be thankful for it). The lower limit must have seemed pretty academic back in 1937, as indeed it did just a week ago, given that the last time a government was formed with fewer than 10 ministers was way back in 1930, when W. T. Cosgrave’s last government contained just 9 members. The scenario that de Valera evidently did not think of when writing the constitution, and who can blame him, was that a Taoiseach might accept (or perhaps prompt) the resignation of a large number of ministers without first making sure that he had the numbers in the Dáil to enable him to replace them.
As a result, the debacle of last Wednesday and Thursday brought government membership down to 9, and the withdrawal of the Greens on Sunday reduced it to 7. The implication seems to be that the remaining ministers can behave as they like from now on because they are literally unsackable. Were one to fall under the proverbial bus, bringing membership of the government down to 6, we would certainly be in an interesting situation constitutionally. No doubt some citizen would be tempted to go to the High Court to argue that any act or decision taken by the rump group of ministers had no validity because this group of people did not constitute a valid government as defined by the constitution. And if this happened after the dissolution of the 30th Dáil, making it impossible for any ministers to be appointed even if the opposition was willing to facilitate this to make the process of government possible, the over-used term ‘constitutional crisis’ might for once be justified.