Much Ado about Constitutionality and Collective Responsibility

Guest post by Ken Carty (University of British Columbia)

Constitution

The pundits and editorial writers have worked themselves up over a bill to provide for abortions in the case of private members fetal abnormalities – a bill that may never pass out of the Oireachtas. The behavior of some ministers, we are told, ignores the constitution and undermines the collective responsibility demanded by it. But surely these charges are way out of proportion.

The Attorney General has advised the government – presumably because she was asked to – that she thinks the bill is unconstitutional. But that doesn’t make it so, and to keep describing it as such only muddies the water. Only the court can decide on a law’s constitutionality. If the Oireachtas passes the bill it may, in due course, get tested in the court but until there is some final decision it will be the law of the land. And this is how it should be. The presumption that the Attorney General can alone decide what is constitutional and what not denies the role of the Oireachtas and the authority of the courts. It represents a view that highly contentious issues can be arbitrarily banished from the public agenda, and out of popular politics, by a simple legal opinion.

The Taoiseach is reported to be unhappy about the divisions in his cabinet but surely that is the reality of the politics of such a fragmented Dáil. Collective responsibility does speak to the cabinet members being collectively accountable for government decisions they have taken, and for the administration they lead. But it is a very long stretch to suggest they need to be collectively agreed on a private members bill that all seem agreed is unlikely to pass and on an issue on which the Taoiseach seems determined that the government should have no policy.

Collective responsibility is not damaged by a few Independent cabinet ministers recording their position on an issue that the Taoiseach seems desperate to avoid by shuffling it off to a Citizens Assembly. Ministers, like all members of the Dáil, have a responsibility to their consciences, and to their electorate, and it would be an impoverished system of responsible cabinet government that demanded that those responsibilities were automatically overridden by the Taoiseach’s whip. Especially on issues that all acknowledge touch deep moral principles and the fundamental rights of individual citizens.

There might be issues on which resignation from the cabinet would be necessary for a dissenting minister. But an ill-fated private members bill is not one of them. The electorate has returned a Dáil that is going to demand new ways of doing government as well as politics. It isn’t going to work well if the government charges TDs (including some of its own members) with reckless constitutional impropriety at the first sign of political trouble.

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2 thoughts on “Much Ado about Constitutionality and Collective Responsibility

  1. The specific problem here arises from Art.15.4 of the Constitution: “The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.” Therefore, it’s unthinkable that any government, or any member of it, could support a Bill in the knowledge that it is unconstitutional.

    So suppose the AG advises the government that a particular Bill is unconstitutional. The decision the government then has to make is whether to reject or accept that advice. (Or they might query the advice, talk it through, ask the AG to have another look at the question etc….but that obviously didn’t happen in this instance, if it ever does.) Had the government decided to reject the advice offered on the constitutionality of the Wallace Bill, it amounts to a vote by the government of no confidence in the advice of the AG .So the AG’s position becomes untenable. Alternatively, if individual Ministers disagree with the AG’s advice, and lose a majority vote at Cabinet on the issue, but still insist they are going to vote against a government decision to which they are collectively bound, then they should resign.

    Enter the grand political fudge: The Cabinet notes the AG advice, makes no decision about it and so, with one bound … our heroes are free to vote howsoever they may choose. And instead of the rest of us discussing the issues at stake and the urgency of a referendum to repeal a policy that (a) doesn’t work, (b) is dangerous to the health and wellbeing of all women of childbearing age, we’re all talking about them! It’s irritating.

  2. So, we finally have the strong Dáil that political scientists exhorted the people to elect. It’s so strong that government ministers themselves are able to vote against government positions and keep their jobs. Yet it seems that nobody in the country is happy and nothing in the Dáil gets done. It may be that political scientists over-estimated the extent to which politics is rhetoric and legislative debate, and under-estimated politics as team activity and executive problem-solving.

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