The reality of the “New Politics” is slowly emerging. Let’s look at some important issues.
The Irish Constitution divides the powers of government into three categories – legislative, executive and judicial.
These categories are not completely water-tight; but what is termed “the executive power of the State” is required to be “exercised by or on the authority of the Government”, which is “responsible to Dáil Éireann”. ( Note that the Government has a different relationship with the Seanad).
Does Enda Retain the Support of a Majority?
Article 28.10 of the Constitution obliges a Taoiseach who has ceased “to retain the support of a majority in Dáil Éireann” to resign unless the President dissolves the Dáil on the Taoiseach’s advice. It is noteworthy that Enda Kenny was nominated for appointment as Taoiseach by a minority of the Dáil members voting. But those who abstained in the vote on his nomination must be taken as “supporting” him to remain as Taoiseach.
So, if Fianna Fáil at some point cannot be counted as “supporting” Enda Kenny as Taoiseach, he and his Government are constitutionally obliged to resign, unless they have won the support of the remaining members of the Dáil.
That does not mean, however, that he is obliged to resign simply because his Government loses a series of Dáil votes.
It does mean that he must resign if he and his Government is defeated on a confidence vote. And it does mean that he and his Government must resign if they no longer can perform the budgetary functions reserved to the Government under the Constitution because they lack the support of a majority in the Dáil in the exercise of those functions.
On other issues, such as day to day legislation and motions on policy matters, a Dáil defeat does not carry with it any obligation to resign. It is within these constitutional parameters that the “New Politics” can properly operate.
Nobody but the Taoiseach can recommend any Bill or resolution to lawfully appropriate exchequer funding. And only the Government can present annual estimates of receipts and expenditure. So the present minority government retains a constitutional veto on budgetary matters. That means that in order to survive the Government must create and sustain a majority budgetary consensus in the Dáil.
No Executive Dominance of the Oireachtas
While any party can still operate a rigid internal whip system, the Government whips no longer control either House of the Oireachtas by virtue of their office.
The “legislative power of government” vested in the two Houses has broken free from the “executive power of government” and the State is, for the first time, being governed by parliamentary consensus in most matters.
In principle that all sounds good. The traditional over-weaning power of the Irish government is over for the time being.
Constitutional Vigilance
But the “New Politics” is not quite that simple.
The traditional role of the Attorney General as constitutional watchdog over Government legislation is serious compromised if non-government legislation in the form of Bills or amendments is free from such scrutiny. The Attorney is advisor to the Government – not to the Dáil or the Seanad. If the Government has lost its whip hand, who keeps an eye on what non-government legislators are doing? The President has a role under Article 26 to send suspect Bills to the Supreme Court for examination of their constitutionality. Does the Supreme Court’s role under Article 26 extend to constitutional validity arising from our EU membership?
Bearing in mind EU legal obligations in making our own laws, who is going to keep an eye on that area of validity. This is not academic. The water charges issue is likely to be a very immediate area of controversy. Who will hear and pay attention to the views of the Attorney on such legislation?
The Seanad
Another interesting constitutional angle to the “New Politics” is the role under Article 27 and Article 29 of the Seanad where the Government only has about twenty members of the FG parliamentary party out of a sixty member House.
If the Dáil uses its constitutional power to over-ride the Seanad’s position on any ordinary Bill coming from the Dáil, a simple majority of the Seanad can, with the support of one third of the Dáil’s members, petition the President to refer such Bills to the people for approval in a referendum on the grounds that it is of such “national importance that the will of the people ought to be ascertained”.
Likewise, the Seanad can now realistically veto the exercise by the Government of certain EU powers in relation to enhanced cooperation, the relaxation of the requirement at EU level for unanimity and in relation to Schengen, justice and home affairs matters, and on certain other EU measures. So can the Dáil.
Each House of the Oireachtas makes its own rules. Mandatory pre-legislative scrutiny of Bills under Dáil standing orders does not apply to Bills, whether Government or non-Government, in the Seanad as things stand. The Seanad is free to take a different approach now that it is freed from government control.
With Power Must Come Responsibility and Accountability
But each House remains part of our parliament (along with the President). The country has to be run. Any giddiness arising from the collapse of Executive dominance in parliament must be tempered by the assumption of collective responsibility resting on the parliament under the Constitution.
Watching the “New Politics” from a distance for the last fortnight, it strikes me that there has been an effective lurch to the Left as Fianna Fáil seeks to re-position itself as a left of centre party in its competitive struggles with the other opposition parties and groupings.
How long is Middle Ireland content to have a left wing tail wag the dog in pursuit of party advantage?
Is there not now a need for new choices and voices to allow the views of Middle Ireland to find expression in the political process. Is that a “gap in the market” we see? Is there a “market in the gap” under the “New Politics”?
We’ll see.