Gerald Nash (Louth, Labour) | Oireachtas source

I acknowledge the remarks of the Minister of State, which are pretty much on the money. The Constitution could not be clearer about the arrangements which must pertain where, subsequent to a general election, a delay occurs in forming and electing a new Government in the Dáil. I also acknowledge the spirit of the Bill developed by Deputy Tóibín and agree that it is not ideal that Ministers remain in office between an election and the election of a new Government if they have failed to retain their seat. It may be an offensive set of circumstances for the Deputy and it may rankle with some in society but the Deputy and others might be a little surprised to know that the last place a fallen Deputy wants to be is in ministerial office, for even a day longer than they have to when they have lost their seat. I speak from personal experience in the context of the 2016 general election and the interregnum period between that election and the formation of a new Government in early May of that year.

The Minister briefly referenced some of the relevant constitutional provisions which govern this particular policy area. They are represented in Article 28. According to Article 28.10 the Taoiseach must resign from office on his ceasing to retain the support of a majority in Dáil Éireann unless on his advice the President dissolves the Dáil for another general election. Under Article 28.11.1 if the Taoiseach at any time resigns from office the other members of the Government are deemed also to have resigned but the Taoiseach and the other members of the Government must continue to carry on their duties until their successors are appointed. Under Article 28.11.2, which I think the Minister of State referenced, the members of the Government in office at the date of a dissolution of the Dáil must continue to hold office until their successors are appointed. Thus, quite correctly, the Constitution envisages a possible delay in the process of forming a new Government and the outgoing members must remain in office and continue to perform their functions until such time as a new Government is chosen by the Dáil.

As such, there has to be some rule about what happens after an election result and before the new Government is approved. There could, for example, be no Government at all which would be chaotic for all kinds of reasons. There could be an acting Government made up of incumbents who are waiting to be replaced, which is the current rule and which has been in place for some time, or there could be a Government made up of interim appointees nominated by someone who does not himself or herself have a democratic mandate, which is what this Bill proposes.

The Bill is aimed at what is seen as a particular issue, where some acting Ministers may be individuals who have lost their seats in a general election. Deputy Tóibín considers it anomalous that one can remain, for this short period, a Minister without being either a Deputy or a Senator. The Bill proposes that no later than six weeks after the general election the acting Taoiseach, even though there is no such term in the Constitution, must get Dáil approval for the ministerial appointments to replace Ministers who have lost their seats.

The first problem is one of basic policy. Why is it better that someone who lost an election, namely, the acting Taoiseach, be given the right to nominate new Ministers than the losers continue in an acting capacity? The second problem is the Bill envisages a Minister may have lost his or her seat but does not envisage the Taoiseach failing to be re-elected. The machinery the Bill mandates imposes obligations on an acting Taoiseach which could not be discharged by a person who is not a Member of the Dáil. The third problem is that, as I indicated, Article 28 of the Constitution already sets out rules to govern this very kind of situation. The model chosen is that members of the Government in office going into a general election must continue to hold office until their successors are appointed. The fourth problem is that while the Bill requires an acting Taoiseach to nominate successors to Ministers who have lost their seats, there is, of course, no obligation whatsoever imposed on the Dáil to approve those nominations. Why would a Dáil in which the Taoiseach has lost the vote on his or her re-nomination, facilitate him or her in way with their reshuffle? It is contradictory to expect a Dáil which has expressed its lack of confidence in a Taoiseach to approve his or her ministerial nominations. The Bill requires the Taoiseach to attempt something which is most unlikely to be successful.

The fifth problem is that if the Dáil approved the nominations then a very strange entity would be in charge of the State whereby most members, including the Taoiseach, were functioning in an acting capacity but the new members would be real as opposed to acting Minsters. Why should they be given a different and perhaps democratically superior designation when they are part of an administration that is, as a whole, acting, outgoing and has lost the support of the Dáil?

It is in the nature of a change in regime that there must be transitional arrangements to ensure that at all times the State has a functioning Executive. We had a functioning Executive of sorts, whether we accept it or not, between the most recent general election and the election of the current Government. It is in the nature of transitional arrangements that they are not perfect. They may very well be clunky. They may have anomalous aspects that make many of us feel uncomfortable, such as having persons who are not Members of either House addressing the House as a Minister. I completely understand these sentiments but the Bill does not provide a workable solution to what is, in any event, not an intractable problem. We believe there are aspects of the Bill that are repugnant to the Constitution and are not, in fact, amendable.

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