Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

I commend the Deputy on his energy and diligence in bringing forward this Bill but it is not a proposal the Government can support. The Government is established, appointed and regulated in accordance with the Constitution rather than statute. This is confirmed in Article 28.1, which states that Ministers are "appointed by the President in accordance with the provisions of this Constitution."

As such, it effectively appears that this Bill attempts to add a further ground to the procedures for the appointment and removal of Ministers contained in Article 28.9 but it purports to achieve this by way of legislation rather than by amending the relevant provision. In addition, it does not appear that this is a proposal which falls within the matters which may be provided for by statute in accordance with Article 28.12 of the Constitution. As such, it is highly questionable whether the form of this Bill is consistent with the Constitution or whether this is a matter which may be legislated for in the first place. On this basis alone the Government cannot support it. What is envisaged under Article 28 is that a Minister should remain in office until such time as his or her successor is appointed. 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." One of the great benefits or advantages of our Constitution is that it is so easy to read, understand and remember. To me that paragraph is crystal clear. We can understand the intention and meaning of those words and the intention of the people who drafted them.

It is a sensible and proportionate measure. It is designed to ensure certainty and continuity so that the day-to-day operations of Departments of State are not impacted unduly in the interregnum between an election and the formation of a new Government. The wisdom of this approach has been illustrated in recent months. As Departments struggled to contain an unprecedented pandemic that reached crisis point shortly after the election was held, it would not have been to the benefit of the public for Departments to be forced, based on an entirely arbitrary and inflexible deadline, to change leadership while also trying to maintain a strategic focus on the delivery of essential services in the face of a crisis. In fact, if we look at the section of the Constitution I quoted, it is clear that the drafters of the Constitution were familiar with situations like the pandemic. After all, there was a pandemic in 1918 on a similar, or even larger scale to the present one, and we are used to situations of war. There are times of great crisis which may go on for some extended period of time and the Constitution makes no reference to an end time for those things to happen.

In practical terms, this Bill would mandate a caretaker Taoiseach who does not have sufficient support in the Dáil to form a Government to nevertheless make ministerial appointments. Aside from the pragmatic consideration of preventing unnecessary and disruption in the day-to-day operation of Departments, as far as democratic legitimacy is concerned, it is difficult to see how this proposal is preferable to the current arrangements whereby outgoing Ministers remain in place on a caretaker basis. Certain countries, such as Spain, specify in their constitutions the length of time permitted for government formation which may be a more workable means of advancing the Deputy's objective. The Irish Constitution contains no such provision, however, and to insert one would require a referendum rather than legislation. As such, aside from the fundamental constitutional issues engaged by this proposal, on policy grounds the Government equally cannot support it.

At this time it is fair that I acknowledge the contribution of those Ministers who did not retain their seats and who despite that continued to do their jobs during the pandemic emergency. They absolutely devoted themselves to public service and brought us through an incredibly difficult time and many people across the country, no matter what party they are in, recognise, acknowledge and honour those Ministers for the work they did at that time.

See this speech in context