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.
Irish Politics Forum 
Could not The Emergency Powers Act 1939 be invoked ?
Cowens actions seem to present a very interesting problem. Great article.
If one of those seven ministers croaks , all prisoners would have to be released immediately, for instance.
All civil and public authorities and officials , including the Garda – and the Courts! – would immediately cease to have any authority.
The Army would no longer be constitutional.
Best of all the Bank Guarantee would fall null and void.
So better ensure that all seven have the very best of constant care and medical attention:-)
One breach of the constitution does not render the constitution invalid.
If such a scenario were to happen, then there would probably be an immediate case taken to court to rule that any actions of the acting office holders would be invalid, and that when the 31st Dáil is formed, that they should legislate to correct this anomaly in the law.
Nothing more than that is likely to happen.
It’s also worth noting that the Seanad is not dissolved when the Dáil is dissolved, therefore, while maybe not explicitly correct, the acting Taoiseach might be advised by the court to appoint a senator to fill the vacant ministry. While this would be unprecedented, I’m sure this would be the most practical solution to the problem.
It’s important to remember that constitutional crises aren’t the end of the world. I’m sure the common sense of either the courts or the President would prevail in such a situation.
I know this kind of stuff gives many politcial scientists a warm, tingly feeling. But my view is that our institutional structure is broadly sound and can cope with eventualities of this nature. It is what goes on within and between these institutions that matters.
Add to our hypothetical situation the confusion of an IRA claim to be the government of Ireland in inheritance from the Second Dail, as they still claim , and as Devalera once stated in the Dail ” has some legitimacy”
And any of us can croak it anytime, maybe the Seven have a special arrangement with the Almighty?
If this dire situation came to pass – one of the remaining 7 ministers falling under a bus or being abducted by aliens after the Dáil is dissolved on Tuesday 1 February – then there would, it seems, be no valid government in existence to do anything at all, and there would certainly be no possibility of appointing an additional minister, senator or otherwise, given that all ministerial appointments have to be approved by the Dáil (Article 13.1.2).
Thus it would be open to anyone to argue before the courts that some government decision or action – to draw down funding from the IMF or ECB, for example, or to repay an earlier loan – should be declared null and void because the six people who decided on this course of action had no authority to do so; they no more constituted a government than do any other group of six people, because the constitution states explicitly that the government contains at least seven individuals, each of whose appointment was explicitly approved by the Dáil.
Of course, the state would hardly accept such an argument lying down were it put forward in any court case. It would point out that under article 28.11.2 all ministers continue in office until the new Dáil meets, and that therefore the Taoiseach and each minister retain their powers of action and decision. At most, any problem could relate only to those powers that are expressly to be exercised by the government as a whole as opposed to lying within the jurisdiction of individual ministers.
Beyond that, it would argue that article 28.1 should be considered not in isolation but in the context of the constitution as a whole. The constitution was accepted and approved by the people in 1937 as a framework for government, it would say, not as a document that might one day thwart the process of government, and there is no reason why the requirements of article 28.1 should be set above the intention of the constitution as a whole that the people be able to enjoy the benefits of government. In effect, the ‘spirit’ of the constitution as a whole should weigh more heavily than the wording of any specific article. The purpose of setting a minimum number of ministers, it might suggest, is to prevent a situation, which has occurred in some non-democracies, where an autocrat appoints himself minister for virtually everything. The present situation, it would observe, has arisen not because a six-member cabal is trying to concentrate power in its own hands but through bad luck (and, it might admit, bad judgement). To nullify all government (or ‘government’) actions simply because of a series of unforeseeable accidents could not possibly be in the public interest.
And then the courts would have to decide.
Still, it might be prudent for the Taoiseach, if the Dáil does meet again, to seek cross-party agreement to allow him to appoint one or two additional ministers so as to pre-empt such an eventuality. These individuals would have to be TDs who are not standing in the election (Seán Ardagh or Tom Kitt, for example) and hence could not be motivated by a desire to boost their profiles, and they would be nominated on the understanding that they would operate on a ‘care and maintenance’ basis and certainly would not go on a spree of spending public money in marginal constituencies.