Who has the right to decide when the election takes place?

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Amid the current sometimes fevered speculation over the date of the election to the 32nd Dáil, one constant refrain is that the timing of the election is the prerogative of the Taoiseach. Members of Fine Gael, while they might express a personal preference, are punctilious in adding that ‘of course’ it is entirely up to the Taoiseach when the election takes place. More surprisingly, Labour TDs also seem to defer to this notion.

In some ways this is natural enough. After all, the Constitution states quite categorically: ‘Dáil Éireann shall be summoned and dissolved by the President on the advice of the Taoiseach.’ (Article 13.2.1). The Taoiseach does not need to consult, let alone secure the agreement of, anyone else, be that the Tánaiste, the government, the Dáil, the Council of State, or the parliamentary party. Hence, if Enda Kenny, today or at any time over the next five months, were to travel up to the Park and advise the President to dissolve the Dáil, that would settle the matter.

Yet perhaps things are not quite so straightforward. After all, constitutions consist not only of what is written therein but also of interpretations and of conventions that have developed about how the political process is to be conducted. Conventions are not as rigid as the words of a constitution and thus can change over time in response to events or to changing beliefs about how politics should be carried on, but nonetheless they carry weight while they last. What is written in a constitution might in reality give a partial or unrealistic view of what actually happens, and political practice might be rather different from what a literal reading of the constitution would imply.

We can see this by looking at the clause immediately before Article 13.2.1, which states: ‘The President shall, on the advice of the Taoiseach, accept the resignation or terminate the appointment of any member of the Government.’ (Article 13.1.3). In words every bit as unambiguous as those of 13.2.1, this gives the Taoiseach of the day the power, by means of ‘advice’ to the President, to bring about the dismissal of any member of the government. And, again, were Enda Kenny to give such advice to the President, the minister about whom such advice was tendered would immediately cease to be a member of the government.

In a similar vein, Article 13.1.2 states that the President appoints the members of the government ‘on the nomination of the Taoiseach.’
Yet we know that that is not really the way politics works. All the Articles quoted, which give sole and exclusive power to the Taoiseach when it comes to the appointment and dismissal of ministers and the dissolution of the Dáil, may well reflect reality when a single-party government is in power. In an era when virtually all governments are coalitions, though – the most recent single-party government came to an end in 1989 – the power of the Taoiseach is significantly more constrained than the words of the Constitution would suggest.

If the Taoiseach of the day wants the coalition government to continue, then quite clearly he or she can neither select nor dismiss ministers from another party. Convention, in other words the unwritten component of the constitution, says that the leader of each party in the government picks their party’s ministers (or, more precisely, that each party picks its ministers in a manner of its own choosing, which in practice has nearly always been selection by the party leader). In the present government, then, it was Joan Burton who picked Labour’s other four ministers to join her in cabinet, not Enda Kenny. Likewise, while the Taoiseach has the constitutional power to dismiss any of the Labour ministers without having to consult Joan Burton, were he to exercise this power it would be a massive breach of convention – of one of the ‘unwritten’ parts of the constitution – and would mark the immediate end of the coalition arrangement between the parties. Were a Taoiseach to flex this particular constitutional muscle, the political cost would be huge.

Labour would be justified in believing that this constraint-by-convention applies also to the dissolution of the Dáil. Decisions on election timing made by past coalition governments, as far as we know, have been made after discussion between Taoiseach and Tánaiste, sometimes with others involved too. It cannot be imagined that in 1977 Liam Cosgrave would have gone to the country without feeling the need to reach agreement with Brendan Corish; that John Bruton would have felt entitled to call an election in 1997 without being obliged to talk it through with Dick Spring and Proinsias De Rossa; or that Bertie Ahern would have thought that the question of when he decided to dissolve the 28th Dáil was, thanks to the wording of Article 13.2.1, none of Mary Harney’s business.

A unilateral dissolution by the Taoiseach in autumn 2015 would be particularly anomalous given what seem otherwise to be basically good relations between Fine Gael and Labour. It is only a few weeks since the two parties agreed a ‘transfer pact’ at the forthcoming election, and many leading figures in both parties have spoken of their preference to see the current government re-elected. Such mutual warmth would hardly survive what Labour would regard as a distinctly unfriendly act. Moreover, while the impact might be small if the two government parties did not fundamentally disagree on election timing, all the information we have is that they do disagree, with Labour having a strong preference for an election early in the spring of 2016.

Acting on the basis of the words of Article 13.2.1, then, and disregarding the conventions that have grown up around the operation of coalition governments, while entirely unproblematic in legal terms, would be regarded by Labour as transgressive in terms of the unwritten rules of the political game. With its potential to alienate Labour from its coalition partner, such a step could have major repercussions for the dynamic of the election campaign.

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10 thoughts on “Who has the right to decide when the election takes place?

    • Article 13.2.2 states that the President may in his absolute discretion refuse to dissolve Dáil Éireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Éireann.

      • Mary Robinson made it known that she would have refused a dissolution had Albert Reynolds requested one following the fall of the Fianna Fáil-Labour coalition in 1994 as there was clearly another government in waiting.

    • It would be an interesting question to pursue.

      And I do wonder if, without the presence of the Táiniste in this case, could the President question if the advice to dissolve the Dáil was coming from the Taoiseach or the President of Fine Gael.

      At the very least, the constitution gives no timeframe within which the President shall dissolve the Dáil (on the advice of the Taoiseach).

      And Article 13.8.1: “The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.”

      So sit on that Enda?

      • The President wouldn’t actually have to refuse the dissolution. Just as President Robinson “let it be known” to Albert Reynolds that she would refuse a dissolution, President Higgins could “let it be known” to Taoiseach Kenny that he would do likewise in order to ensure that the banking inquiry was completed. Mr kenny would be unlikely to proceed!

  1. ‘Dáil Éireann shall be summoned and dissolved by the President on the advice of the Taoiseach.’ (Article 13.2.1). In the context of the constitution as a whole, the only effect of this clause is that the President cannot summon or dissolve the Dáil WITHOUT the advice of the Taoiseach.

  2. The role of the President in refusing a request for dissolution in certain defined circumstances is an interesting subject in its own right, but doesn’t have any relevance when it comes to the timing of the election of the 32nd Dáil. (Which is why the original post didn’t mention it.) The President has discretion to refuse such a request only when the Taoiseach of the day has ceased to retain majority support in the Dáil (eg has lost a confidence motion). If that were to occur between now and March 2016, which could only mean that the government had broken up, there would be no alternative government ready to take up the reins, and with the Dáil in its last few months there would be no rationale for the President refusing a dissolution.

    The question raised in the original post was not about the respective powers of Taoiseach and President but about the respective powers of Taoiseach and Tánaiste in a coalition government when it comes to government appointments and dismissals, and dissolution of the Dáil. The written constitution is unambiguous (the Taoiseach has the sole power of decision-making), yet unwritten conventions with something close to quasi-constitutional status suggest that matters are not so straightforward.

    • We’re in the land of whimsy now but…

      If the President did refuse to dissolve the Dáil, for reasons of the “unwritten conventions” you describe, the only recourse for the Taoiseach would be impeachment, right? He can’t bring the President to court after all for reasons of Article 13.8.1.

      And since, in this case, it would be a (Labour) president defending the (albeit constitutional unwritten) rights of a Labour Táiniste: would a Fine Gael Taoiseach be able to muster the two-thirds in the Dáil needed to even initiate an investigation for impeachment?

      The other relevant “unwritten convention”, I suggest, is that we assume the President should be lily-livered. We assume the balance of power in the Taoiseach giving “advice” and the President “dissolving” the Dáil is entirely with the Taoiseach. Perhaps, that’s something we should challenge?

    • And I will add that in this case too a President would be able to cite the national importance of completing the banking inquiry as a reason to square off against a Taoiseach looking for an early election. And it would be a reason for the Oireachtas to refuse to impeach him for doing so too.

      What I’m getting at is not the “written word” of the Constitution but the “politics” of it and how we have come to imagine the politics of it in one particular way, when we could easily imagine it in another.

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