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Opinion: 'Caretaker governments without any limitations on powers do no favours for democracy'

Barrister Hugh O’Donnell says ministers still holding power despite losing their seats is untenable in the long run.

Hugh O’Donnell

A CARETAKER GOVERNMENT is not an ideal executive at the best of times, much less during a global health emergency. By its nature, a caretaker government lacks democratic legitimacy.

Though it acts in a caretaker capacity, there is no limit on the exercise of its executive powers other than those ordinarily imposed by the Dáil. The absence of constraints on the power of caretaker government makes Ireland an outlier amongst parliamentary democracies.

There is provision for the existence of a caretaker government in the constitution. Article 28.11.2 makes clear that “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 provides clear constitutional legitimacy for the operation of a caretaker government, but it does not provide the democratic legitimacy that a government appointed by and holding the confidence of Dáil Éireann after a successful general election would have.

Currently, the situation whereby three of the fifteen cabinet ministers have failed to hold their seats in the recent general election means they lack a democratic mandate. Yet despite this, perversely, these three ministers as part of the cabinet hold more influence and have more control of the direction of the country than the current Dáil.

This weakness has always been present in our constitution but has only become evident with the recent fragmentation of our party system. Prior to 2016, the longest period that a caretaker government had been in office was 48 days, after the 1992 general election. After the 2016 general election, it took a record 70 days for a new government to be formed. This milestone was itself exceeded on 18 April 2020 after the most recent general election. We are still counting.

With the continued erosion of Ireland’s traditional party system, these interregnum periods are only likely to become longer. Experience in other parliamentary democracies would seem to suggest that 70 plus days to form a government is not in any way unusual.

After the 2010 general election in Belgium, it took the parties a record 541 days to form a government. While this was extreme, lengthy periods of caretaker governments are not unusual, after the last German general election in 2018, it took more than four months for a government to be formed.

‘The new normal’

The fragmentation in the Irish party system means these lengthy interregnums are likely to become the new norm. As such Ireland needs to plan accordingly. In most parliamentary democracies, explicit or implicit caretaker conventions have been developed to guide the actions and state clearly what a caretaker government can and cannot do.

An All-Party Oireachtas Committee on the constitution in 2003 stated that the existing constitutional provisions in relation to caretaker governments are ‘satisfactory and do not require amendment.’ It is important to note, however, that this report was written in a time of relative political stability when governments were quickly formed after clear election results. Since 2016, this has not been the case.

The powers of a caretaker government in Ireland are effectively that of an ordinary government properly voted in by the Dáil, but there is an added dimension in that a caretaker government cannot be removed until a new government is appointed.

As such, it has nothing to fear from any confidence vote, as by its nature it was never intended that a caretaker government would last for long. The current crisis shows the glaring need for a clearer caretaker convention, not to mention legislative and perhaps even constitutional reform.

Allowing a Government that has lost a general election, and some ministers who have lost their Dáil seats to continue in office without any limitation on their power other than that ordinarily imposed by a Dáil does no favours for the image or quality of our democracy.

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Now more than ever with a public asked, and indeed required, to comply with increasingly onerous restrictions, democratic legitimacy must be clearly held by those in ‘caretaker’ power.

Hugh O’Donnell is a practising barrister and lectures in law and politics at the Institute of Public Administration. The views expressed in this article are entirely the author’s own.

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