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.