Saturday, July 4, 2009

Dissolving the Dail -- The rare prerogative

The power to dissolve the Dail is the fulcrum of political power under our Constitution but it is little understood or discussed.

Every FF Taoiseach in the past 40 years has ultimately been removed without a general election - Lynch, Haughey, Reynolds, Ahern. In the case of Albert Reynolds this lead to an entirely new Government. Is this good for democracy? Can the President exercise real control over the process? These are important questions that are rarely considered.

I know of no comprehensive study of this power and there is a widespread misunderstanding of the process. In the past, with one major exception, the issue has not created controversy but I believe there are reasons to expect much greater challenges in future. Without accepted constitutional traditions, there is a real risk that this prerogative will not be exercised in the public interest.

In normal circumstances, this power rests with the Taoiseach although formally exercised by the President.

Article 13.2. 1 makes this clear:
"Dáil Éireann shall be summoned and dissolved by the President on the advice of the Taoiseach."

While the legal position is clear, the political realities have changed dramatically. Not so long ago, Taoisigh of various hues brandished their prerogative and did not disguise the political calculations behind it. De Valera pulled a couple of surprise elections which caught the opposition off-guard, most notably in 1948 when he stymied the growth of Clann na Poblachta. As President, de Valera was never going to refuse a dissolution to Sean Lemass or Jack Lynch while Childers and O Dalaigh never faced the choice.

CJ Haughey called three general elections in pursuit of his overall majority only to become the first Taoiseach pushed out by his own party after umpteen internal challenges (Lynch jumped before he was pushed in the expectation that Colley would succeed him).

Overall, my impression is that those who exercised the option of an early general election rarely benefitted.

Bertie Ahern seems to have drawn this conclusion from his experiences under CJH. I think Bertie also understood that the nature of coalition governments obliges the Taoiseach to "decommission" his most powerful weapon. Coalition partners can hardly be expected to accept that the leader of the largest party gets to press the nuclear button. Bertie was the first to make a public virtue of this restraint by signalling in advance that he would allow the last two Dails to run practically their full 5-year terms.

As no politcal party can expect to win an overall majority in the forseeable future, we are in an era of coalition governments where the Taoiseach's prerogative will become more a "dignified" than "efficient" element of our constitutional arrangements.

If the clear legal authority of a Taoiseach has been rendered inoperative by coalition politics, there is one situation in which that prerogative becomes the the President's. Where the Taoiseach "has ceased to retain the support of a majority in Dáil Éireann", the President has an absolute discretion to decide whether to grant the Taoiseach's request for a dissolution.

Art. 13.2.2° The President may in his absolute discretion refuse to dissolve Dáil Éireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil

I think I'm right in saying that, largely due to Fianna Fail party discipline, no President faced this option until the night of 27/28 January 1982. The events of that night have entered Irish political folklore because of Brian Lenihan's "mature recollections" when seeking election as Patrick Hillery's successor. There was renewed comment recently when the last edition of Questions and Answers re-broadcast Lenihan's denial that he had tried to contact the Aras on that night.

There is a widespread view that it was constitutionally improper for Lenihan to have attempted to contact the Aras that night. Why?

There is nothing in the Constitution expressly limiting whom the President may consult. Hillery's Wikipedia entry claims that, on that historic night, Hillery "might also have been motivated by the Irish version of the Constitution, which states that the President uses his discretionary powers as a chomhairle féin, which usually translates to "under his own counsel"--meaning that no contact whatsoever could take place with the opposition."

It's a bizarre stretch to interpret "as a chomhairle féin" as forbidding contact with the opposition. A somewhat more plausible, and more widely-held view, would be that "as a chomhairle féin" prevents the President from seeking advice from any quarter but this also seems to me untenable.

An interpretation which prevented the Taoiseach from seeking or receiving other views or advice would leave the President in the dark while exercising his most important prerogative.
Could s/he turn on the TV? Should s/he start a thread on to get the collective wisdom of Ireland's most opinionated?

What is clear is that the President is not obliged to seek anyone's advice before exercising this prerogative. But there is nothing constitutionally improper in someone offering to give advice. In many countries, Italy and Denmark come to mind, there is a tradition of the Head of State inviting political leaders to discussions on the formation of a new government and, only if these fail, will elections be called.

We are unlikely to get a definitive legal interpretation because the courts would, rightly, be most reluctant to intervene in the President's exercise of this prerogative.

The starting point for a legal interpretation would be to put the phrase in its proper context. The terms of Article 13 distinguish between the normal situation where the President must grant a dissolution "ar chomhairle an Taoisigh" and the situation where the Taoiseach has lost the support of the Dail, in which case the President acts "as a chomhairle féin". The general rule, except where otherwise stated, is that the President cannot exercise any power or function save only "ar chomhairle an Rialtais" i.e. on the advice of the Government. acts.

From this it is clear that in the normal case, it is the Taoiseach and not the Government which advises the President i.e. the President must act accordingly. Where the Taoiseach has lost the support of the Dail, there is an exception (the most important exception) to the general rule. The President is not bound by the Taoiseach's advice but is entirely free to act s/he can act "as a chomhairle féin" i.e. on his own judgement.

This interpretation is consistent with the English version "at his absolute discretion". Nothing suggests that the President is limited in the sources of advice that he may consult. In other situations, notably Article 26 in referring a Bill to the Supreme Court, the President must seek the advice of the Council of State. The arrangements for a dissolution are clearly distinct and it might even be improper for the President to formally consult the Council of State.

Brian Lenihan's difficulties in 1990 arose not because he tried to contact the Aras in 1982. His problem was that he wanted people to believe that he would act independently if elected President and the events of that night served to highlight his total subservience to CJH. This was compounded by his comments on Q&A when he talked about his "loyalty" over many decades.

Garret Fitzgerald, a key witness to the events of January 1982 who had been cleverly substituted onto the Q&A panel by FG, pointed out that a President must show independence, which is the opposite of loyalty. At that moment, Lenihan was sunk because it was clear he would not fulfill the role independently of CJH. The lies and obfuscation only exacerbated his problems.

It may not be clearcut whether a Taoiseach has actually "ceased to retain the support of a majority in Dáil". I don't believe this is limited to a Taoiseach who has lost a vote of no confidence. It was clearly accepted by all sides in 1982 that President Hillery could have refused a dissolution because Garret Fitzgerald had lost a budget vote.

In 1987 when President Hillery granted a dissolution to Garret Fitzgerald, Garret no longer had a Dail majority because Labour had withdrawn from coalition. But this was a moot point because the Dail was almost at the end of its 5-year term.

There is a strange lack of discussion about the next time President Hillery was faced with a request for a dissolution by a Taoiseach who never actually had the support of a majority in the Dail (he was elected on the casting vote of the Ceann Comhairle - there's one for the pub quiz). Haughey actually went to the country because the Dail dared to support a private members' motion which called for some tiny amount of financial aid to the victims of one of our worst scandals: the haemophiliacs infected by the BTSB.

The opposition will always claim to welcome a general election but in 1989 they truly relished Haughey's formal announcement that he was going to the Park.

So the difference between 1982 and 1989 may simply be that the Opposition were not in a position to put together a government without an election. There is nothing to indicate that President Hillery reserved his judgement on the matter; he seemed to accede to Haughey's request without further ado. Did Hillery have any contact with advisors or with the Opposition, even informally?

After the 1989 election, Ireland faced a moment of great constitutional confusion. The newly-elected Dáil failed to elect a Taoiseach when it first met (and at a number of meetings afterwards). Haughey, the incumbent Taoiseach, was constitutionally obliged to resign but it was only under intense pressure, especially from Dick Spring, that he eventually tendered his resignation to President Hillery.
At the conclusion of the inaugural session of the new Dail, when neither Haughey nor any other candidate won election as Taoiseach, Haughey tried to pull a fast one. He proposed to remain on in office, with his Ministers, pending the next sitting of the Dail (a week later). At first, Alan Dukes seemed to accept this but Spring pointed out that Article 28 obliges a Taoiseach to resign if he loses the support the Dail unless, after an election, he gains support of the new Dail.

The Taoiseach shall resign from office upon his ceasing
to retain the support of a majority in Dáil Éireann unless on
his advice the President dissolves Dáil Éireann and on the
reassembly of Dáil Éireann after the dissolution the Taoiseach
secures the support of a majority in Dáil Éireann.

There seems to be no scope for maneuver here but Haughey argued he was
advised that time is not of the essence and that it is open to me to take a reasonable amount of time to reflect and consider. That I intend to do... The only alternative is for me to go to the president and seek a dissolution of the Dáil. That is not in the best interests.

Haughey then tried to get an adjournment until the following Monday but that proposal was defeated and, after a short adjournment, he went to the Park and conveyed his resignation, and those of his Ministers, to the President. He did not seek a dissolution and he continued to insist that he had the constitutional right to take time, up to a week, to consider the position before resigning.

Haughey was then Taoiseach in an acting capacity only. At the next Dail session, Dick Spring again attacked his view of the Constitution
esterday we heard the acting Taoiseach trying to tie the hands of the highest constitutional officer in the country — the President — and using the national radio station to do so. Article 13.2.2º of the Constitution states quite clearly that the President of Ireland has absolute discretion in dealing with the advice of a Taoiseach who has lost the confidence of this House in the matter of a dissolution. For Deputy Haughey to attempt to subvert the discretion the President has, by alluding to an entirely fictitious accepted wisdom on radio, can only serve to undermine confidence further in Deputy Haughey. There is no such thing as accepted wisdom in this matter, there is only the absolute discretion of our President. For Deputy Haughey the term “accepted wisdom” appears to mean that the President should exercise his discretion in whatever way Deputy Haughey wishes him to.

Haughey gave an intriguing response which suggests that he had long reflected on the President's prerogative:

The Taoiseach: What I said yesterday was a very simple statement of the truth as I saw it, and I have some experience in this matter. I have discussed these matters with Presidents since Seán T. O'Kelly's time. I know the views of many distinguished Presidents in the past on that issue, and there is nothing sinister about it. It is simply a question of looking at what the Constitution provides and where the exercise of this or that power might lead us. All I was saying was that I knew the views of a number of Presidents. I also made it clear that I had not discussed, or had no intention of discussing, that matter with the present President. I have nothing to apologise for to anybody in this House in that regard.

At the fourth attempt, on 12 July 1989, the Dáil eventually re-elected Haughey when he agreed to a coalition deal with the PDs - one of the great ironies of Irish electoral history.

It is interesting to speculate on Hillery's response if Haughey had requested a dissolution at an earlier stage after the 1989 election. On the whole, I think Hillery would probably have granted it, despite rather than because of Haughey's request, as it was clear the Dáil could not form a Government other than with FF (the left were too wary of FG)

I think 1992 is the last time a Government lost a vote of confidence. In practice, of course, Mary Robinson had no alternative but to grant Albert Reynolds a dissolution on that occasion but she is reported as saying that she would not have granted Albert Reynolds a dissolution in 1994 if he had gone to the Park when the FF/Lab coalition broke down.

Mary McAleese has never had to face this issue due to Bertie Ahern's philosophy although even he could not resist some gamesmanship by disguising the exact timing of the election. His furtiveness almost backfired in 2007 when he had a Sunday morning dash to the park before the President left for the States.

It's anyone's guess when in the next three years a Taoiseach will next seek a dissolution of the Dail and whether President McAleese will have discretion in the matter. Her successor would have little option but to grant a dissolution of the thirty-first Dail as there would be less than a year left in its full term.

In the longer term, I think our next President is likely to have a real opportunity to refuse a Taoiseach's request for a dissolution. In other words, in the coming decade there is quite likely to be an occasion where a coalition government collapses in circumstances where a new coalition might be formed which could provide effective government for a substantial period before the Dail's 5-year term expires.

Should a President refuse a dissolution in those circumstances or should the people go to the polls again? The choice will be the President's alone but we need some principles which could guide that decision.

In my view, some basic principles could be settled. For example, the Dail should be dissolved unless there is a realistic prospect of forming an alternative Government which would be effective and seen as legitimate. There should be at least 2 years remaining in the full term of the Dail. The alternative government should have a reasonable prospect of lasting for the remainder of that term. There should be some basis for a coherent Government programme. The alternative Government should have the capacity to gain broad acceptance i.e. be seen as expressing the democratic will reflected in the last election (not some alliance of the losing parties with disaffected elements of the winners).

In the absence of some such principles, the President's prerogative will be seen as "dignified", not efficient, and we are doomed to a frequency of general elections which is bound to undermine the country's capacity to make the strategic measures that the current crisis demands.

There is a helpul international comparison here