The limited rules regarding government formation

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When the new Dáil meets on March 10th its first job is to elect a Ceann Comhairle. Up to now this has been pre-ordained by the Executive and so took a little time. But now there will be an election by secret ballot. It hasn’t been done before, so this could take some time.

Each candidate must have seven other nominators, so there won’t be too many candidates. But with speeches it will likely take four or so hours before a new Ceann Comhairle takes the chair.

The next business of the new Dáil is to elect a Taoiseach. This is conducted by convention; the Standing Orders of the Dáil are silent on how this happens.

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The rules assume elections produce clear results but it is probable no potential Taoiseach can marshal a majority in the Dáil next Thursday. The Taoiseach is expected to have the confidence of the Dáil. Article 28.10 states:

“The Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann unless…”

Normally a Taoiseach nominated by the Dáil is then appointed by the President. The newly-elected Taoiseach then seeks approval from the Dáil for his or her cabinet, the ministers of which are then appointed by the President. If there is a vote on the nomination of a Taoiseach and Enda Kenny were to lose such a vote -there is a remote possibility that there would be no vote- he would have to tender his resignation to the president. This happened in 1989, when although Charles J. Haughey initially resisted, he eventually resigned.

During this time the country is not without a government. Article 28.11.2˚ of the Constitution states:

“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.”

This is how Brian Cowen remained Taoiseach until the 31st Dáil met to elect Enda Kenny, even though he no longer held a seat in the Dáil.

Given St. Patrick’s Day and how Easter has fallen the Dáil may be adjourned until early April to allow negotiations between the parties continue. The way the Dáil is configured, and given that Sinn Féin will work with no one who could feasibly form a government ,and no one with it, an arrangement between Fine Gael and Fianna Fáil is most likely. The possibility of Fine Gael making the 29 seats it is short by finding common ground with the smaller parties and independents  is remote. Labour would be most reluctant to be involved.

But what happens if after a month no one is elected Taoiseach?

In many other countries, a formateur is appointed, usually by the Head of State, as the person designated to lead a government. The formateur will try to secure support for a majority government. This is happening in Spain at the moment.

President Hillery Dissolves The Dáil.

There are also informateurs who are ‘honest brokers’ asked to help the parties put a deal together. Garret FitzGerald wrote in his autobiography that he as outgoing Taoiseach conferred with the President, Paddy Hillery, about what should happen should the Dáil fail to elect a Taoiseach following the 1987 election. FitzGerald as outgoing Taoiseach but with no prospect of being returned to office was to say he was consulting Hillery about how to break the deadlock. Had it been necessary it seems that Hillery would have authorised FitzGerald to act as a type of informateur. There was an acceptance that the President would have a role.

However the Irish Constitution and Irish law is silent on this process, except to say that the president can refuse a caretaker Taoiseach’s request to dissolve the Dáil, which might in some way put some pressure on the parties to resolve a deadlock. There are no time limits set out as to how long it should take before we would give up and go to the polls again, so the president’s involvement could be influential. However there would be an understandable reluctance on the part of the president to be drawn into the process, though the current incumbent has been known to involve himself in political debate, so who knows?

Even those ministers who lost their seats continue to serve as ministers, and in the event of a protracted delay in the formation of a new government there is nothing to stop them having to answer questions in the Dáil or even introduce Bills.

This is possible because according to Article 28.8:

“Every member of the Government shall have the right to attend and be heard in each House of the Oireachtas.”

Parliamentary business continues in Spain even though it has not elected a government. In Belgium in 2011/12 government formation took 541 day. During that time a national budget was presented and passed, F-16 fighter jets were sent to Libya, a bank was nationalised and the Presidency of the Council of the European Union was held by a caretaker Belgian government. In Ireland there are no legal restrictions on the decisions a caretaker cabinet can make.

This is uncharted territory – with no legal guide – so, politics trumps everything.

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