A long time coming: the formation of Ireland’s new minority government

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.

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Ireland’s election leads to uncertainty over identity of next government

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Last month’s Irish election resulted in a hung Dáil and uncertainty about the nature and identity of the next government. Alan Whysall discusses the result and its possible implications on both sides of the border.

A general election by single transferable vote to the lower house of the Irish parliament, the Dáil, was held on 26 February. The government suffered badly. The 32nd Dáil is hung, and there may not be a successor government for some weeks.

The following table summarises seats won, and first preference votes cast:

Party Seats Vote share (first preferences)
Fine Gael 50 25.5%
Fianna Fáil 44 24.4%
Sinn Féin 23 13.9%
Labour 7 6.6%
Independent/Other 34 29.7%

The Dáil has 158 seats, so 80 are required for an overall majority. There is more detail on the election here.

The result was a profound upset for the governing Fine Gael/Labour coalition. It had come to power in 2011 when the government led by Fianna Fáil was blamed for the economic crash – which was made all the starker because it followed the ‘Celtic Tiger’ years of prosperity. This time Fine Gael’s share of the vote slumped, well beyond its expectations and most poll predictions, and that of Labour, as with junior coalition partners elsewhere, suffered even more. Fine Gael – though inspired, some say, by the UK Conservative effort last year – was generally held to have had a disastrous campaign. Its slogan of ‘Let’s keep the recovery going’ was thought to have antagonised many who did not see themselves having enjoyed any fruits of recovery, although Ireland is now one of the Eurozone’s best performing economies.

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Deliberative approaches to political reform: David Farrell on the Irish Constitutional Convention

Nitish Verma reports on Professor Farrell’s talk on The Irish Constitutional Convention, an initiative set up by the Irish government in 2012 to consider a number of potential constitutional reforms.

Image credit: The Constitution Unit

Speaking at the UCL Constitution Unit Seminar on 21 May, David Farrell, Professor of Politics at University College Dublin and Research Director to the Irish Constitutional Convention (ICC), provided an inside view of the origins, workings, and legacy of the Convention.  Established in June 2012, the ICC was tasked with proposing recommendations regarding a variety of constitutional and social issues facing Ireland, and relied upon the involvement and engagement of ordinary citizens as members.  This process was unique, according to Professor Farrell, as it represented a ‘third way’ of constitutional design, with representation achieved through random member selection, and legitimation via a combination of institutional ratification and popular vote.

According to Farrell, the establishment of the ICC was motivated by two factors: the severe economic crisis afflicting Ireland in 2011, and the subsequent general elections later that year. The timing of these elections was, in Farrell’s opinion, fortunate as it produced an incoming government that was committed to enacting substantial constitutional, political, and economic reforms. More importantly, this opened the door for Irish political scientists to play a crucial role in ‘steering’ public discussion in favour of a citizens’ assembly. As a result, in May 2011, a group of independent researchers and academics, including Professor Farrell, established We the Citizens, a national initiative aimed at illustrating the potential benefits of involving the public in political decision-making. In engaging citizens across the country, the initiative demonstrated ‘statistically significant’ results, proving that randomly selected citizens were not only interested, but also capable of deliberating on the complex political and constitutional issues facing Ireland.

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Judicial Independence 1, Irish Government 1: How not to run a referendum campaign

The voters of Ireland have been busy. On 27 October they elected a new President, Michael D Higgins (who was inaugurated last Friday – more on this election in a moment). They also voted in two constitutional referendums that dealt with the relationship between judges and politicians (the Twenty-Ninth and Thirtieth Amendment of the Constitution Bills respectively). The proposed Twenty-Ninth Amendment sought to introduce a rather complex mechanism by which the pay of judges could be reduced (as the pay of all other Irish public servants has been in recent years). The proposed Thirtieth Amendment sought to create a robust power of parliamentary inquiry.

The Irish electorate voted yes to the Twenty-Ninth Amendment (and by quite a margin – roughly 80%-20%). This proposal was the subject of a previous post of mine (which can be read here). In very brief summary, while I don’t think there can be a problem with the general principle that judges’ pay can be reduced in a crisis, the wording of the amendment is very vague and, for that reason, potentially a threat to judicial independence in future.

By contrast, the electorate voted no to the Thirtieth Amendment (by a narrower 53%-47%). This would have conferred a power to conduct inquiries into ‘any matter’ and allowed the Oireachtas to make findings of fact. It also included what could potentially have been an ‘ouster clause’ excluding these inquiries from the oversight of the courts.*

What explains the differing results? For some, the prospect of more robust parliamentary inquiries in general suggested a move towards a sort of neo-McCarthyism. This is perhaps a little unfair, but given that the government was proposing that one of the first subjects to be inquired into would be the Irish banking crisis (arising out of which criminal prosecutions are still expected) this was not so unlikely as to be dismissed as nonsense.

The results perhaps also disclose a general hostility to authority – particularly to the political and legal elite – in the midst of the current crisis. Whilst the electorate were happy to reduce the pay of the legal elite without bothering unduly about the niceties of constitutional law, they were hostile to the demands of the political elite for additional power in the midst of the crisis, for which politicians are widely perceived to bear the lion’s share of responsibility. As the inquiries amendment was framed, it appeared that this power came at the expense of the rights of the individual citizen.

A lot must be attributed to the nature of the campaign, however. The referendums ran alongside one of the most colourful and controversial presidential election campaigns Ireland has ever had, featuring no fewer than seven candidates. One candidate was repeatedly quizzed on letters of support he had written to an Israeli court on behalf of his former lover, who was convicted of the statutory rape of a teenage boy. One candidate suggested darkly that a minor car accident that turned out to be the result of an accidental tyre blow-out was in fact sabotage and part of a campaign against her. One candidate was Martin McGuinness. Against this lurid backdrop the referendum campaigns competed vainly for attention, and did not indeed get any until the dying days of the campaign. One lesson for future referendum campaigns, then, is to hold them by themselves.

The government’s case was not assisted by delaying publication of the text of the proposed referendums until the last possible moment, just weeks before voting day. It was also not helped by its combative attitude to criticism of the referendums. A late intervention by eight former Attorneys General emphasising the threat to the rights of the citizen and urging a no vote on both proposals was dismissed by the Minister for Justice as ‘nonsense’ spoken on behalf of vested interested in the Courts and the legal profession. Given that the concerns expressed were about the attitudes of the Government this did not inspire confidence.

This mixed result could have been avoided by making the amendment process more open. If members of the public (including lawyers and anyone else interested) had been allowed to participate in the formulation of the text of the amendments, rather than being presented with a badly written fait accompli at the eleventh hour, the resulting text of both amendments would likely have been better and the result for the Government and for the Irish Constitution more favourable. With any luck, these lessons will be taken on board for the Government’s promised, but still elusive, Constitutional Convention.

* This was proposed as a means of overruling a Supreme Court decision that restricted the power of the Oireachtas (parliament) to hold inquiries. In the Abbeylara decision (Maquire v. Ardagh [2002] IESC 21) the Supreme Court held that the Oireachtas has no inherent power to conduct inquiries that make adverse findings of fact against individuals, and can only do so where a specific power is conferred by statute or the Constitution.

The text of the potential ouster clause ran: ‘It shall be for the House or Houses concerned to determine with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry’.

Judicial Independence and the Irish Referendum on Judicial Pay

[This post originally appeared on the UK Constitutional Law Group Blog]

If all goes to plan, this week the wording of a new amendment to the Irish Constitution will be finalised. The amendment is designed to permit reductions to the pay of judges and will be voted on in a referendum on 27th October. The reason for the amendment is well known: the Irish government has no money. In the midst of a general financial crisis, the pay of other state employees has been significantly reduced through levies. Thus far judges have been exempt because of Article 35.5 of the Constitution, which is unambiguous: ‘The remuneration of a judge shall not be reduced during his continuance in office.’ The exemption of judges from a general pay cut was never going to be politically palatable and so a halfway house solution was arrived at two years ago. A scheme was set up whereby judges could voluntarily forego a portion of their salary in line with the cuts to salaries of other public servants. Uptake of this scheme was, not surprisingly, quite slow although by January of this year a significant majority (125 out of 147 judges http://www.rte.ie/news/2011/0106/judges.html) had signed up to the scheme. When it came into office earlier this year, the new government promised to proceed with a referendum to facilitate formal reductions to judges’ pay. This pledge was popular and the amendment is virtually certain to be approved in the referendum.

The core of the new provision (assuming no further amendments) will be Article 35.5.3:

“Where, before or after the enactment into law of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make reductions to the remuneration of judges.”

If passed, the government proposes to reduce the salary of senior judges by 31%. The judiciary are, by all accounts, unhappy about this proposal and let this be known by a memorandum released in July (much to the annoyance of the Minister for Justice, who insisted that it be removed from the Court Service website – an interesting incident for what it suggests about relations between politicians and judges). The judges’ document, available here: http://www.irishtimes.com/focus/2011/judicialpay/index.pdf, was at pains to point out that the judges did not oppose a pay cut as such, but pointed (amongst other things) to the threat to judicial independence created by the possibility of a reduction to judicial pay.

From the way the new Article 35.5.3 is constructed we can surmise that the drafters are trying to manage a difficult juggling act. They want on the one hand to achieve a legitimate mechanism by which reductions in judicial remuneration may be achieved. On the other hand, they want to avoid the challenge to judicial independence that arises if judges’ remuneration can be used as a means of influencing their decision-making. This is a sensible way to approach the problem. If judicial independence is about anything at its core, it is about protecting judges from the kind of very personal worries – around personal pay and conditions, threats to the person and to family, etc – that might create a risk that they would be afraid to make unpopular decisions.

The drafters’ chosen solution is that a reduction in judicial pay must be coupled to a reduction in public sector pay more generally done ‘in the public interest’. Unfortunately because the wording of Article 35.5.3 is rather loose it is not clear that this is what it actually does. The phrase ‘persons belonging to classes of persons whose remuneration is paid out of public money’ seems unnecessarily vague and obtuse. It could mean almost anything. The putative ‘public interest’ test is also too vague. One would hope that most actions taken by the state should be done in the public interest, but the ‘public interest’ concerns that apply to reducing the pay of a civil servant, for example, are not likely to be the same kind of public interest concerns that apply to a judge. Yet as the wording stands it seems that it is the former standard that must be engaged when reducing the pay of judges.

What else could have been done? Three suggestions:

  1. Nothing. In the O’Byrne case ([1959] IR 1) the Supreme Court applied a purposive interpretation to the meaning of Article 35.5, concluding that a requirement that judges pay income tax was not an attack on judicial independence. It might have been something of a stretch for a court that has become more literalist in recent decades, but it could reasonably be argued that a general reduction in the pay of everyone (not just judges) in emergency conditions is not a reduction to the pay of a judge for the purposes of Article 35.5.
  2. A ‘One-Shot’ amendment. The amendment could simply provide for a once-off reduction to judicial pay, leaving the existing Article 35.5 in place.
  3. Just Word it Better. Why not simply state that judges are not exempt from general pay cuts affecting all public servants but nor may they be specially selected for pay cuts, either individidually or as a group? Why not create an independent means for determining what judicial pay should be?

As it stands, the amendment is a classic example of hard cases making bad law. The new Article 35.5 closely addresses a very specific situation but has uncertain application outside of it. It is a shame that a threat to judicial independence in Ireland, even a minor one, should be created just because of bad drafting.

Ireland gets a new Chief Justice…

… and a new barrier broken. Not only will Mrs. Justice Susan Denham be the first woman to lead the Supreme Court, she will also be Ireland’s first Protestant Chief Justice (that the latter point is less remarkable than the former  illustrates that a lot has changed in Ireland in the last 30 years). The soon-to-be Chief Justice’s appointment does not come as a surprise: she has always been very well-regarded and, having been appointed in 1992, is the longest serving member of the Court. Generally regarded as quietly activist on a Court that is more or less ideologically inscrutable (but in practice conservative in recent years), the appointment may give a more liberal direction to the Irish Supreme Court. Two of the most senior Irish law officers are now female. With the recent change of government Ireland also got its first female Attorney General, Máire Whelan SC.

One of the new Chief Justice’s first tasks will be to smooth relations between the government and the judiciary which have been ruffled by a proposed referendum to facilitate the reduction of judicial pay, due to take place in the autumn.

(PS: I am open to correction on this, but I believe Mrs. Justice Denham may also have broken through a somewhat more difficult glass ceiling by being the first Chief Justice to graduate from Trinity College Dublin and not University College Dublin, from whence the vast majority of her predecessors and current colleagues have graduated. There’s hope for us all…).

JI in Ireland: The Case of the Minister, the Billionaire and the Judge

The final report of the Moriarty Tribunal, investigating political corruption, in Ireland last week has led to some trenchant criticism of the presiding judge (Mr. Justice Michael Moriarty). Perhaps unsurprisingly, this criticism emanates primarily from billionaire businessman Denis O’Brien and former minister Michael Lowry, whom the judge effectively accused of corruption in the award of a mobile phone licence to a consortium associated with Mr. O’Brien.

Mr. O’Brien has taken a particularly robust approach to his criticism of Mr. Justice Moriarty. He has set up an independent and official-looking website (www.moriartytribunal.com) which aims to ‘expose the inner workings’ of the Tribunal and refute the claims made in its final report and which should not be confused with the Tribunal’s actual official website (www.moriarty-tribunal.ie). He has also taken to the airwaves, making sweeping statements in TV and radio interviews (for example this one on state broadcaster RTE) about Mr. Justice Moriarty’s competence and independence, and suggesting more broadly that the judiciary in general had closed ranks around the Tribunal despite being aware of its ‘flaws’

The new justice minister, Alan Shatter, has in turn criticised Mr. O’Brien’s statements as an unacceptable attack on the judiciary. And Carol Coulter, writing in The Irish Times on Saturday, suggests that Mr. O’Brien could be prosecuted for contempt of court for his remarks.

The extent to which judges should be protected from criticism is a difficult issue. Mr. Shatter was arguably entirely correct to respond as he did to Mr. O’Brien’s rather wild allegations (interestingly taking on a role that the Lord Chancellor would exercise in Britain). However, given the countervailing concerns we should have for freedom of expression, I’m not convinced that prosecution would be appropriate.