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Dublin: 10°C Thursday 22 October 2020

The Doomsday option: what happens if Cowen doesn't run?

The Cabinet is now at its constitutional minimum – so what happens if Cowen or a minister quits or loses their seat?

FOLLOWING THE WITHDRAWAL of the Green Party from the government yesterday, the Cabinet is now down to its bare minimum: the Taoiseach and his six ministers, a total of seven, form the minimum number required by the Constitution.

But now that the Cabinet is so threadbare – with Pat Carey and Éamon Ó Cuív having to take on three departments each in order to cover the leadership vacuum – there remains a major danger of a constitutional crisis of our own, the sort of which has never arisen in Irish history.

When he was announcing his decision to step down as the leader of Fianna Fáil on Saturday, Brian Cowen was asked if he intended to run in the coming general election to keep his seat as a TD in Laois-Offaly. Cowen said that while he hoped to, he hadn’t decided on whether he would.

If Cowen doesn’t run, however – or even if he does run, and isn’t re-elected as a TD – Ireland faces a power vacuum for which the Constitution appears to make no provision.

Must be a member

Article 28.7.1 of the Constitution declares that the Taoiseach (currently Cowen, regardless of Fianna Fáil’s own leadership) must be a member of the Dáil. So too must the Tánaiste and the Minister for Finance. (Two of the other ministers may be from the Seanad.)

Elsewhere in the article (28.11.2) it states that the members of the Government who hold office when the Dáil is dissolved hold their jobs until replacements are appointed.

This means that the current seven members of the Cabinet will remain Taoiseach, Tánaiste and Ministers until the 31st Dáil meets after the coming general election, and appoints a new Taoiseach, who in turn then appoints a new cabinet of their own.

But here comes the problem: if Brian Cowen opts not to run in the election, then once the election is held he is no longer a TD. This means, however, that he can’t be Taoiseach any more.

Ordinarily, one would assume, the Tánaiste steps in for the Taoiseach when they are unavailable – that, after all, is what happens every Thursday morning in the Dáil when Brian Cowen is otherwise engaged in his Department.

But in comes Article 28.6:

2° The Tánaiste shall act for all purposes in the place of the Taoiseach if the Taoiseach should die, or become permanently incapacitated, until a new Taoiseach shall have been appointed.

3° The Tánaiste shall also act for or in the place of the Taoiseach during the temporary absence of the Taoiseach.

If he’s not a TD after the next election, Brian Cowen won’t have died. Nor would he become permanently incapacitated (although one could argue he has no capacity to lead, because he is not a TD, that status would not be ‘permanent’). Nor, indeed, would the absence be ‘temporary’.

So, it could well be argued, the Tánaiste can’t assume the Taoiseach’s duties and responsibilities. As an aside, even if she could, Mary Coughlan would surely be busy enough already, being in charge of the Departments of Health and Education already. Plus, under the same provisions as the Taoiseach, she too would need to be a TD – a status she could also lose at the next election.

Ultra vires

As a result, the country would be without a formal prime minister – if Brian Cowen attempted to exercise any power, a court may rule he was acting ultra vires, or beyond his powers. But similarly, if Mary Coughlan or anyone else tried to do it for him, they too may be acting beyond their station.

This isn’t a problem that can be overcome by giving Fine Gael or Labour an overall majority either, by the way:  even if, hypothetically, Fine Gael was given 84 seats in the election, Enda Kenny does not become Taoiseach until the Dáil has a chance to meet and give him a job.

To get around this option, Brian Cowen could possibly announce that he was intending not to run again before he dissolves the Dáil. But now that the government is in the minority (Fianna Fáil holds just 71 of the 163 seats currently filled in the Dáil), it would take a massive act of magnanimity for the opposition parties – the Greens now among them – to allow the Government appoint a new prime minister.

This is also politically unlikely, given how just last week the Greens said they would refuse to support the appointment of new Ministers to the Cabinet in order to replace the six who quit over the course of the week. Given the legal headaches that could otherwise be caused, however, the opposition parties could be convinced to allow a new Taoiseach be appointed, simply to avoid Constitutional clashes.

What’s more, Cowen has already accepted the resignation of five ministers in the last week because they had indicated they were not going to run in the next election – and, politically, it would be hypocritical of him to remain in power himself if he was in the same situation.

Cabinet Constitution contravention crisis?

But there are other problems too. The Constitution requires every member of the Government (Cabinet) to be a member of the Oireachtas – and in accordance with this, all seven of the people who now sit around the now-quite-cosy Cabinet table were taken from Dáil Éireann.

Aside from Cowen’s own unique status as Taoiseach, the possibility that any of the seven current ministers could fail to keep their seat, means that the Cabinet itself would then be in breach of the Constitution: there would not be seven members any more, because a Minister could not keep their office (however temporary) if they’re not a member of the Oireachtas.

To pluck a random example: if Mary Hanafin fails to keep her seat in the election, in the difficult constituency of Dún Laoghaire, she would automatically forfeit her membership of the Government – and thereby cause the Cabinet to be in contravention of the Constitution.

And that’s where the really unchartered waters begin: would the Supreme Court have the ability to sanction the outgoing Cabinet? Almost certainly not – its problems would be directly the fault of the electorate, which used its democratic right in refusing to elect an outgoing minister.

Nor, however, would the Supreme Court be empowered to allow the Cabinet to continue in office; to do so would also be a blatant contravention of the Constitution.

Quite simply, the next few days and weeks in the Dáil and Seanad could well turn out to be less interesting than what could be before the Supreme Court in the days and weeks ahead.

Edit: UCD academic Fiona de Londras points out that the problem of a non-TD Taoiseach has been discussed on the Human Rights in Ireland blog, in a piece written by legal academic Dr Paul Daly and published before the Green Party pulled out of power yesterday.

About the author:

Gavan Reilly

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