The formation of Ireland’s new government following February’s general election took more than two months. In this post John O’Dowd discusses the reasons for the delay, the role played by the President and the agreement that was eventually reached to allow Enda Kenny to be reappointed as Taoiseach at the head of a minority government.
Partly on account of its possible repercussions for the slow-motion Eurozone crisis and partly because of its sheer length, the formation of the most recent Irish government attracted more international attention than usual, as well as much domestic puzzlement and frustration. The process began with a general election on 26 February 2016 and ended (perhaps) with the nomination of Enda Kenny (leader of the largest party, Fine Gael) for reappointment as Taoiseach (Prime Minister) on 6 May.
A delay of more than two months in forming a government is unprecedented by Irish standards and lengthy enough internationally. The government that has emerged is also somewhat odd. A minority coalition government is not without precedent in Ireland, but it is unusual in a parliamentary system for an administration to consist of parties and groups accounting for less than 40 per cent of the members of the house to which it accounts – Dáil Éireann; of the 157 votes, 59 were for Enda Kenny’s nomination, 49 against and 49 abstained. A further peculiarity is that, as well as the government depending on a formal agreement with the main opposition party, Fianna Fáil, this support is conditional on Fine Gael obtaining sufficient support through a Programme for Government agreed with other parties or groups to enable it to govern on the basis of Fianna Fáil’s abstention. In the event, Fine Gael could not attract any other parties into a coalition, so the current government consists of Fine Gael plus nine independents.
The political context
The immediate explanation for this protracted and somewhat inconclusive process is the fractured general election outcome. No party won more than one-third of the seats and only one two-part coalition (Fine Gael and Fianna Fáil) could command a majority in Dáil Éireann. As the two are by any standards closer to each in terms of general policy positions than they are to any of the other parties in the Dáil, there was a considerable degree of pressure on them to form such a government, but to no avail. Enda Kenny offered (how seriously, it is hard to gauge) to coalesce with Fianna Fáil, but he was firmly rejected. To some extent, this reflects mutual antipathy in the rank and file of each party that goes back to the original split between them in a civil war in the 1920s. More specific reasons are undoubtedly Fianna Fáil’s resurgence (up from 20 seats to 44 since 2011) compared with Fine Gael’s slump (down from 76 to 50) and a feeling (in both parties, to some extent) that coalition between them would leave the third party, Sinn Féin, a clear run in opposition, so that its political advance could only accelerate. Closely related must be a sense that if both are in government, there is every likelihood that even that combination would fail to command a majority after the next general election. The view is widely held in both parties that it is in the national interest for the main axis of political competition to be one between two basically centrist parties, so that a left-right alignment does not develop.
The President’s role
This political context largely explains the protracted and tortuous nature of government formation on this occasion. One result was more focus than normal on the potential role the President of Ireland, Michael D Higgins, might play in breaking apparent deadlock. The extent to which he might have remains unclear. On the one hand, the President is directly elected and the incumbent is a former long-serving deputy and cabinet member (for the Labour Party.) On the other, the President’s explicit constitutional role in this area, as in others, is carefully circumscribed. His only function in government formation is to appoint (in a purely formal sense) the person whom Dáil has resolved should be Taoiseach. This constitutional practice goes back to 1922 and the drafting of the Irish Free State Constitution. It was then feared (not without foundation, it seems) that the Governor-General of the new dominion might be to some degree an agent of the British government. As many reserve powers as possible were therefore removed from the office. This extended to dissolution of the Dáil; only a President of the Executive Council (as the Prime Minister was then known) who had the support of a majority in Dáil Éireann could advise dissolution. The indirect role in government formation that the President may enjoy results from a change made when Bunreacht na hÉireann (the Constitution of Ireland) was adopted in 1937. Eamon De Valera, the main architect of the constitution, was suspicious of coalition and inclined to give his own party the chance of going back to the voters for a fresh mandate, in the event that the previous election had failed to do so (which he did in 1938 and 1944). The Constitution now provides, therefore, that the Taoiseach may advise the President to dissolve the Dáil even when he or she has ceased to retain the support of a majority in Dáil Éireann; however, in that case (and that case alone) the President has an ‘absolute discretion’ to refuse this advise. This is obviously an indirect power the President could exercise so as to influence the government formation process, but a somewhat blunt instrument for doing so. During the long and tedious process of forming a government in 2016, the only public statement that the President made on this subject was that ‘I’m aware of both the responsibilities that I have that are precise and the capacities I have that may be imprecise – so I remain fully aware and watching what will unfold’.
How President Higgins might have exercised his potential ‘imprecise capacities’ to facilitate government formation can only be the subject of speculation, although we may yet find out in the next few months or years. A putative precedent from 1987 suggests that, in the event of deadlock, the President would commission the Taoiseach to act as an informateur conducting formal consultations with other parties to seek to form a government; this is what President Hillery and Taoiseach Garret FitzGerald are reported (in the latter’s memoirs) to have agree upon as a course of action, although it never proved necessary to pursue it. It will not have escaped many people’s attention, no doubt, that if the result of intervention on his part had been to make a Fine Gael-Fianna Fáil government and, with it, the strengthening of left-right alignments in Irish politics, this long-term result would certainly not be displeasing to the President himself. Without presidential intervention, the parties got on with the process of bilateral contacts and negotiations. In contrast to the United Kingdom (at least in the case of 2010), the civil service role in this process is relatively limited. Fine Gael has had experience of negotiating for the formation of coalitions since 1948 and Fianna Fáil since 1989, when it finally abandoned De Valera’s antipathy towards them. On all occasions since 1989, the parties concerned have been able to arrive at an agreement on a programme for government that can command the support of a majority in the Dáil without outside mediation or brokerage. However, on this occasion it was agreed at the end of March to appoint Professor Kevin Rafter (School of Communications, Dublin City University) as an ‘independent rapporteur’ to facilitate negotiations, in view of some of the difficulties (partly personal, it seems) that had been encountered in purely direct negotiations.
This process produced two main documents: A Confidence and Supply Arrangement for a Fine Gael-Led Government between Fine Gael and Fianna Fáil followed, as required by that agreement, by a A Programme for a Partnership Government between Fine Gael and a number of independent deputies (supplemented by a collateral agreement with one of the latter: Agreement with Deputy John Halligan concerning future services in a hospital in his constituency). There is a stark contrast between the two main agreements. The confidence and supply agreement is of a kind broadly familiar from other systems, since their use became relatively common in New Zealand and Australia over the last decade. It is a fairly terse document, which commits Fianna Fáil to abstaining in the election of Taoiseach, nomination of ministers and in relation to ministerial reshuffles (where the appointment of new ministers requires Dáil approval), to facilitating Budgets consistent with a set of agreed policy principles and to voting against or abstaining on any motions of no confidence in the government or in ministers and on financial measures (e.g. money bills) recognised as confidence measures. On the other hand, Fine Gael has had to accept that ‘Fianna Fáil is an independent party in opposition and is not a party to the Programme for Government’ and that the government may, therefore, be defeated on a wide range of measures and have to bow to the will of the Dáil in that respect. In particular, there is an agreement between Fine Gael and Fianna Fáil that the highly unpopular domestic water charges should be suspended for nine months, while their long-term future is reviewed by an independent commission and a parliamentary commission, before a final decision is taken by the Dáil (in which it is envisaged that the government may be outvoted and whose outcome it must implement).
In relation to institutional changes or constitutional reform, the Fine Gael-Fianna Fáil agreement commits each side to ‘an open approach to avoiding policy surprises’ and a ‘a reformed budgetary process in accordance with the OECD review of the Oireachtas along with the agreed Dáil reform process’ (agreed, that is, through a separate cross-party process). This builds on a process of reform introduced by the last Dáil which has already seen the Ceann Comhairle (Speaker) elected by a secret ballot (won by Seán Ó Fearghaíl TD of Fianna Fáil, in the first sign of the different political dynamic of the new Dáil) and the allocation of committee chairs among parties and groups by the d’Hondt formula, familiar from Northern Ireland.
By contrast, the Programme for a Partnership Government is voluminous and detailed, running to over one hundred and fifty pages. One of its central messages is that ‘We are all at one in our belief that government is not about having power. It is about using power to effect the kind of change, opportunity and compassion we need and desire in our society.’ (p. 9). Time will tell whether this is genuinely the keynote for a new style of government or merely a convenient rationalisation for the fact that an unusual turn of political events ended up with Fine Gael providing a quintessential example of being in office but not in power. This general aspiration has a number of practical aspects. For example, the government ‘will work with all parties and groups to relax the application of the party whip system’ (p 147), so that it comes to resemble something more like the relaxed approach that the members of the Independent Alliance take to having an agreed approach to votes in the Dáil. It remains to be seen how far the opposition parties (or, indeed, Fine Gael) are willing to take that notion and it could end up being merely an escape clause for those independents who now hold ministerial office. Despite having signed up to collective responsibility in principle (p 17) it will be interesting to see how far some of the independent deputies who are now ministers see themselves as being ‘external’ to the government in some sense, as were envisaged under the 1922 Constitution (see below).
There are also commitments to specific institutional reforms, such as the early establishment of an electoral commission, the implementation of the Manning Report, which will lead to significant reform of Seanad Éireann and the establishment of a citizens’ assembly (similar to the previous Constitutional Convention, but without any participation by politicians) to examine a range of issues of a constitutional character (such as fixed-term parliaments), a non-constitutional character (such as long-term policy responses to Ireland’s ageing population) and, in the Irish context, a mixed character (specifically, blasphemy and abortion) (p 153). The exclusion of politicians from this new body (and its name) reflects a reassertion of Fine Gael’s preference for such a model that, in 2011, had to yield to the Labour Party’s wish for a tripartite Constitutional Convention (which would also have included civil society groups, as the convention actually established did not).
If the government (and the Thirty-Second Dáil) survives long enough to implement these commitments they may provide much of interest to constitutional scholars and political scientists far beyond Ireland. That survival remains in question, however. The government has already had to submit to one defeat on a substantive policy issue. While both the confidence and supply agreement and the programme for government mean that such defeats may become routine, the larger question remains of how long it will remain in Fianna Fáil’s political interest to allow this situation, as it effectively has the power to force another general election whenever it suits it to do so. It remains to be seen if recent developments presage long-term and fairly substantial changes in the way that Irish governments operate and in their relationship to parliament in particular or whether the Thirty-Second Dáil will prove to be an anomaly. An early general election is likely to produce a broadly similar outcome with, at most, the positions of Fine Gael and Fianna Fáil reversed. On the other hand, if this Dáil should last something like its normal five year term, it might be that the changes in political culture and practice would be difficult even for a government with a secure majority to reverse – especially if backbenchers are empowered in the way that the Dáil reform process and the Programme for Government envisage. In that event, we might end up with something closer to the scenario Kevin O’Higgins foresaw in 1922, explaining the proposed system of ‘extern ministers’ under the Free State Constitution: ‘Under Proportional Representation you will have not so many great solid parties like in England, which make the party system a fairly good working arrangement, but you will have rather a lot of groups in this Dáil not bound together particularly, but voting independently on the different issues that may arise’.
About the author
John O’Dowd is a Lecturer and member of the Constitution Studies Group in the School of Law at University College Dublin.