Posted by Eoin O’Malley (20 July, 2012)
A central theme in constitutional politics is the separation of powers. The Irish constitution doesn’t refer to this directly, but it is implied and the courts have assumed that a separation of powers does exist. While we can reasonably argue that the judiciary is independent of the executive and legislature in practice (except that the executive appoints the judiciary), no such argument can be made for the separation of the legislature and the executive.
In parliamentary systems of government, the parliament appoints the government (executive) but more than this, in Ireland, as with many other places, the legislature appoints a government from among its own members. So the cabinet is at the same time a committee of parliament and the political leadership to the executive. It was for this that Walter Bagehot, the English journalist and constitutional scholar, could describe the cabinet as a coming committee – a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State’ (emphasis in original).
For many this fusion is a good thing; it means that governments can take clear and decisive actions when needed. They could contrast this with the frequent deadlock in the US system. Just think of the problems US presidents have in changing the direction of domestic policy – it is possibly for this that they get involved in so many foreign policy adventures.
So do we really want a greater separation of powers, and how would we achieve it?
Proposal: bring ministers from outside the Dáil
One way to increase the separation of the Dáil from the government would be to change the rules limiting where ministers can be selected from. Currently Article 28.7 sets out that the Taoiseach, Tánaiste and Minister for Finance must be members of the Dáil. It makes provision for up to two ministers to come from the Seanad, and given the system whereby the Taoiseach can nominate eleven senators, this can mean that two ministers could come from any walk-of-life. But it is very rarely used. Only four senators have ever been ministers, most recently in 1981. Where taoisigh have to construct a majority in the Dáil, it might be more difficult if some of the prizes of office are given elsewhere.
So simply allowing ‘extern ministers’ to be appointed won’t necessarily achieve anything. The proposed change would need go further and say that a certain number of ministers cannot be sitting TDs (perhaps even all). This would be achieved by ensuring that on being appointed as a minister, if you are a TD you must resign your seat (we might need to think about alternatives to by-elections to replace these – but if you kept by-elections there might be a real resistance to appointing sitting TDs.) Added to this might be a proposal to allow ministers who have resigned their seats the option of being automatically returned at the subsequent election.
What issue/ problem is the proposal trying to address?
One of the criticisms levelled at the Irish political system is that the Dáil did not provide adequate oversight of government. One of the disadvantages of the fusion of the parliamentary and executive branches is that they become so closely aligned that one of them does not do its job properly. That inevitably seems to be parliament, which should oversee government action. (We might also expect that it makes legislation, but for largely good reasons the power to initiate legislation has passed to the executive, which the legislature is meant to scrutinise.) Because they are fused, they become one, and the legislature is reluctant to subject itself to much criticism.
This is especially the case in Ireland where a combination of factors makes for a particularly supine parliament. One is institutional. The government in Ireland controls an important resource -Dáil time – to a large extent. Government has a veto over much of what the Oireachtas can do because of Article 17.2 of the Constitution, which prevents the Dáil from voting to spend public money without the government’s approval. Look also at the way the committee system works. It is instructive to note that the Public Accounts Committee, which is generally regarded as the most powerful of any of the Oireachtas committees, and has by convention a chair from the largest opposition party, must seek government approval for any sustained inquiry into government action.
Other reasons for the control of the Dáil by the executive are social. The Irish political class is small, and apart from the 2011 election, turnover is usually small. TDs and ministers from all parties know each other very well, and in this small, village-like atmosphere TDs are reluctant to be openly critical of ministers from their own party. Perhaps more important, however, is that TDs have a career path which is almost completely controlled by their party leader. In the Irish system power is centred in government, and for that reason ambitious TDs want to get there.
The committee system is weak and party leaders tend to control allocation of positions. So if you ultimately want to get into cabinet, you have no incentive and limited opportunity to provide vigorous oversight of your own party’s performance in government.
The fusion of the Dáil and government is accentuated by the fact that ministers almost exclusively come from the Dáil. This means there is no social separation of ministers and TDs, who have similar backgrounds and will have worked together over time. And because being a minister is a real ambition, there is less incentive to insist on the empowerment of the Dáil.
The lack of oversight is not the only problem with the relationship between the government and the Dáil. The rule that ministers also limits the pool of talent that taoisigh have to choose from. If as some suggest, ministers lacked the requisite skills to deal with the financial crisis, it may be because all ministers must commit themselves to re-election and that only a certain type of person (with a certain type of outlook) will ever become a minister. This would separate the positions of parliamentarian from those of ministers. The skills involved in being a TD and a minister are quite distinct but the current system restricts who can become a minister to a limited number of people with a specific background. Although we’d like to see intelligence and an eye for detail in both, in fact being a good parliamentarian, where aggression and tenacity are important traits, differs from being a minister, where an ability to sell one’s side and to compromise might be more important.
Having ministers who are all parliamentarians damages the operation of cabinet as a forum for uncovering flaws in proposals because all ministers tend to have a similar background and training. It will therefore enable Taoisigh to choose from a far wider talent pool when constructing their cabinet.
It is also suggested that ministers are not full-time in their jobs. If you need to get re-elected in a geographic constituency, we know that ministers will tend to look after the needs of that constituency perhaps to the detriment of the national interest. With this proposal it might suspend the link between ministerial portfolio and constituency representative. It will allow, and that they should work full time on their portfolio and not depend on support in their constituencies for promotion.
Where is it used?
Ireland is comparatively unusual in the restrictive nature of appointments to government. As well as the stipulation that ministers must be parliamentarians, there is also a limit on the size of the cabinet (though no constitutional limit on the number of junior ministers.)
In many other countries ministers may come from either parliament or not (for example, Germany and Spain). In other countries (e.g. Bulgaria, Belgium, Sweden and Slovakia) ministers may come from parliament, and frequently do, but they must (often temporarily) give up their seats if they wish to serve in government.
In the US, where the separation of powers is complete, one must resign one’s seat to take up a position in cabinet, which one must win back in a scheduled election, often against an incumbent. For this reason, and because positions in Congress are treated as quite senior whereas many cabinet posts are regarded as less important, it is rarely the case that senators or representatives resign their posts to take up a cabinet position (although Hillary Clinton is an example of where it happened).
Although it is available to other European countries to appoint outside experts, even when non-parliamentarians are appointed, most have long standing connections or positions within the party. It is also the case that it is much easier to be elected to parliament in many other European countries where the electoral system allows the party to place people in places to easily achieve election.
Problems with this proposal
As with any proposal it is not always clear in advance whether it will work and achieve expected benefits. There will be unexpected consequences; but this should not deter any change. We might also debate whether the expected consequences would be regarded as positive. For instance if it does work to achieve a greater separation of powers between government and the Dáil, this could invoke a certain deadlock between the two. Potentially government proposals will get rejected by the Dáil leading to slow or weak responses to policy problems. Irish governments are regarded as quite decisive, and to lose this might be a problem, especially in times of crisis. Against this, one could argue that governments have perhaps been too decisive. An example might be the Bank Guarantee Scheme which was pushed through the Dáil with too much ease, and perhaps more scrutiny would have been better.
The fact that the Bank Guarantee Scheme was supported by even the opposition parties, who presumably have a strong incentive to oppose government action and expose flaws in it, might suggest that the problems in the Irish political system do not relate to the separation of powers, but to a lack of expertise. These would not necessarily be solved by this proposal (expect that having ministers with greater expertise in cabinet might help).
It might also lead to a situation where governments struggle to pass its legislative programme, especially where some of the measures maybe unpopular. However, one could argue that it would then require to the government to come up with other, better policies which it can sell to TDs and voters. And it is unlikely that governments and the Dáil would be completely detached, as the government would still require the support of the Dáil. It is more likely that it would just rebalance the power between the two.
One might argue that greater expertise can come in the form of policy advisers and a more policy-focussed civil service. Ministers in Ireland at least have close contact and an understanding of the positions of ordinary people because of their dual role as elected representatives. Expert ministers may be more detached ministers, and this could weaken the democratic legitimacy of executive action.
Within the government the practice of appointing extern ministers could mean that the Taoiseach becomes much more powerful as other ministers will not have parliamentary backing to rely on in a dispute with the Taoiseach. Furthermore it will be much easier for the Taoiseach to fire ministers as they have few threats against the Taoiseach. That said, there is no evidence from other European countries that the prime minister is all-powerful within government; if anything the opposite is true.
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The introduction of non-parliamentary ministers would be a radical departure from current Irish practice, but it would move Ireland towards a European norm. There are some reasons to think that it would lead to a greater separation of power and a rebalancing of powers between the executive and the legislature, but on its own it may not be a panacea to all that’s wrong with the Irish political system.
This was originally posted on www.humanrights.ie Shadow Constitutional Convention series.
Irish Politics Forum 
I suspect most people have given up on panaceas or magic bullets. There aren’t any. It’s just a long, slow grind of incremental steps. However, anything that might separate and re-balance the powers of the executive and the legislature has to be welcomed.
It might be a useful exercise to define these steps in ‘bite-size’ chunks and to sequence them in an implementable manner so that positive cumulative impacts might be exploited – and unintended consequences addressed.
I gather this is the 10th mini-essay in this ‘shadow’ Constitutional Convention. There may be potential – and probably intent – to integrate these to generate a greater impact. I recognise it must be disheartening generating supply of this nature when there is no evidence of any effective demand, but there is always the possibility that ‘events’ – or a series of ‘events – will unfold that will whet the public’s appetite.
That’s a well-argued and informative post (there has been a noticeable tendency here of late towards getting into the real nuts-and-bolts of constitutional reform, e.g. Michael Gallagher’s interesting post on recall elections, the kind of topics any decent constitutional convention might consider I suppose).
Coming up with a suitable system to pick Dáil replacements when a TD gives up his vote and becomes a minister could be quite challenging. It’s an easy problem in a list system (just take the next available person on the list). And given the strong dynastic tendencies in our own political culture, simply allowing TD’s nominate their own alternatives might not be such a good idea! (in a similar manner to our own European elections) Alternatively, one could take the next person on the PR-STV constituency ordering (the last to be eliminated). But that might not be a government candidate, hence discouraging the choice of ministers from such constituencies (hence limiting the effective ministerial talent pool). Or one could take the next unelected constituency candidate from the same party (presuming there actually is one). Such a scheme would probably need some kind of constitutional party recognition. But that’s not ideal either. One would be promoting a ministerial constituency party member. That’s not exactly going to reduce ministerial pork as the minister keeps a sharp eye on this party rival.
One possible scheme (drawing heavily on some of Daniel Sullivan’s previous electoral ideas here) would be to rank/categorize all failed GE candidates according to their PR-STV elimination count and party allegiance at the time of the general election. If a TD becomes minister then the next party candidate (over the entire country) in line in terms of elimination count becomes his replacement. Such a mechanism, as far as I can see and hoping I’m not missing any obvious flaw, can cope in a fair way with uneven constituency sizes. It does have the quirk that constituencies may gain extra TDs, but less well represented constituencies (at the lower end of allowed representation levels) and smaller magnitude constituencies (which are less proportionately represented and where more votes are ultimately “wasted” anyway) tend to be favoured. Though this scheme would also tend to (perhaps unfairly?) favour constituencies with higher turnouts (though appropriately normalizing against constituency CSO population figures could compensate for this). It’s likely that the majority of ministers under this scheme would not end up with a promoted constituency rival. Local effects are reduced in the replacement scheme (perhaps this is a good thing?). If party affiliations at the time of the GE are used, then a candidate would be promoted regardless of whether he’s still even in the party (tends to weaken the whip system a little). The party has no control over replacements so it might as well chose whoever it originally intended for minister anyway (there are no local constituency considerations biasing the choice). Admittedly this scheme is a little complex, but perhaps might be one reasonable way of choosing parliamentary alternatives. It seems like coming up with a suitable scheme under PR-STV could be quite tricky.
On external ministers, I suppose there are limits to how far one can push this kind of approach within a parliamentary system (without going to a full-blown presidential system). If all ministers were required to be external ministers then it’s likely they’d end up as puppet figures (civil servant types) with the real power anyway lying with senior government TDs. So would probably be wiser to limit this to a limited number (can’t really push this too far). Might increase the ministerial talent pool (particularly important if we ever (IMO unwisely) go down the route of drastically reducing Dáil size). Perhaps special accountability mechanisms should be put in place for such ministers: individual Dáil votes to approve their nomination and the possibility of separate votes of no confidence, which would remove that external minister but not bring down the entire government. Again there are probably pros and cons there also.
Anyway, unfortunately, the constitutional convention doesn’t seem to be the place where the real action is happening. The Seanad abolition amendment is probably the one place in the lifetime of this Dáil where this issue might possibly be addressed. After all, any amendment will have to consider the current provision for (up to two) Seanad ministers. Will this avenue be simply removed? Or will there continue to be an option for up to two external ministers instead? Or perhaps the Taoiseach (and Seanad abolition is very much his personal baby and something he’s likely to be remembered for if it succeeds) might be brave enough to constitutionally *require* two external cabinet ministers? Wouldn’t hold my breath though!
To go off on a slight tangent, my intuition is that Seanad abolition is the most realistic opportunity for some moderate reform in this Dáil. The Taoiseach’s personal prestige will be on the line. Any amendment will be a far easier sell if the (mostly theoretical) powers/checks-and-balances of the Seanad are not merely abolished but redistributed instead elsewhere in the system. I’d personally prefer Seanad reform, but having these modest powers become practically usable elsewhere in the system would still be preferable (and better than forlornly waiting for second chamber reform that might never ever come anyway).
Seanad assent for moving from unanimity to QMV for a EU competence and for Presidential, C&AG and judicial impeachments could be replaced by Dáil supermajorities (or a higher supermajority in the case of Presidential impeachment or perhaps instead a referral to a further impeachment referendum). The role of the Chairman of the Seanad (in the Presidential Commission, Council of State and in the emergency passage of legislation via article 24) could be instead reasonably given to the Leas Ceann Comhairle. But that would be very unsatisfactory if that office continues to be elected by simple majority (and remain essentially in the gift of government). Perhaps this is an opportunity to reform how the chair and vice-chair of the Dáil are elected? A 2/3 supermajority or secret PR-STV ballot (with winner becoming Ceann Comhairle and runner-up becoming Leas Ceann Comhairle) would be more suitable (and ensure both offices would together collectively represent at least 2/3 of the Dáil). And hopefully article 27 will be left in place (allowing a third of TDs the power, with the assent of the President, to refer non-money bills of utmost national importance to a referendum, or at least delay passage until after Dáil dissolution within 18 months anyway). Or perhaps the minority threshold might be changed from a third to a more conservative 2/5. Article 27 is, after all, be merely a greatly watered down version of the powers Danish oppositions MPs already have (see section 42 in the Danish constitution http://www.servat.unibe.ch/icl/da00000_.html ).
The Seanad’s very modest delay powers (21 days for money bills and three months for non-money bills) could usefully be transferred to a one third Dáil minority (perhaps such a delay might be triggered by a minority petition of TDs to the Ceann Comhairle) The article 22.2 Committee of Privileges provision to decide whether a bill is a money bill or not could then (as well as becoming usable) be largely left unchanged (perhaps the President could simply choose half of its members from the TDs involved in the petition rather than the Seanad). Something broadly along these lines would minimize the number and degree of constitutional changes needed, and also transfer some moderately useful powers to the Dáil. Though, in reality, how much dwould a mere three month delay matter to a bill matter in the overall scheme of a government’s five year programme? But this might perhaps give a little extra bargaining power to the opposition and cut down on some needless guillotining of bills. And, finally, returning to the main topic of non-parliamentary ministers, any Seanad abolition amendment will *have* to address the current Seanad route for non-Dáil ministers in some way (even if only to remove it entirely).
Not all parties supporting the bank guarantee, the Labour Party voted against it.
If you believe that this Government or any other Irish political party is genuinely interested in political or constitutional reform, then you should study the ostrich. keep burying your head in the sand, and wait for the fascist’s to crawl over our democracy. Ireland is no longer a sovereign independent democratic nation. any semblence of democracy died when we mistakenly thought we were joining a european “Free Trade Area”, and instead entered along the path of European “integration”. The refusal to accept our democratic “no” in the Nice and Lisbon treaty referendum’s. and the refusal to allow the Greek people to even hold a referendum, is prooof that Europe is no longer a democracy. Those who argue that Ireland needs Europe, are blind to the reality that Europe needs our resources more than they need us.
Look for the “real map of Ireland” on the web, and discover the extent of Irelands Exclusive Economic Zone. which is 25% of the European continental shelf, and which contains enough energy resources to solve all of Europes long term energy needs. Which is why the Lisbon Treaty was so important to Europe.
see “www.democratic-reform.ie” for more information
What senators apart from Sean Moylan were appointed government ministers?
Jim Dooge and Joseph Connolly