Posted by Eoin O’Malley (20 July, 2012)
A central theme in constitutional politics is the separation of powers. The Irish constitution doesn’t refer to this directly, but it is implied and the courts have assumed that a separation of powers does exist. While we can reasonably argue that the judiciary is independent of the executive and legislature in practice (except that the executive appoints the judiciary), no such argument can be made for the separation of the legislature and the executive.
In parliamentary systems of government, the parliament appoints the government (executive) but more than this, in Ireland, as with many other places, the legislature appoints a government from among its own members. So the cabinet is at the same time a committee of parliament and the political leadership to the executive. It was for this that Walter Bagehot, the English journalist and constitutional scholar, could describe the cabinet as a coming committee – a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State’ (emphasis in original).
For many this fusion is a good thing; it means that governments can take clear and decisive actions when needed. They could contrast this with the frequent deadlock in the US system. Just think of the problems US presidents have in changing the direction of domestic policy – it is possibly for this that they get involved in so many foreign policy adventures.
So do we really want a greater separation of powers, and how would we achieve it?
Proposal: bring ministers from outside the Dáil
One way to increase the separation of the Dáil from the government would be to change the rules limiting where ministers can be selected from. Currently Article 28.7 sets out that the Taoiseach, Tánaiste and Minister for Finance must be members of the Dáil. It makes provision for up to two ministers to come from the Seanad, and given the system whereby the Taoiseach can nominate eleven senators, this can mean that two ministers could come from any walk-of-life. But it is very rarely used. Only four senators have ever been ministers, most recently in 1981. Where taoisigh have to construct a majority in the Dáil, it might be more difficult if some of the prizes of office are given elsewhere.
So simply allowing ‘extern ministers’ to be appointed won’t necessarily achieve anything. The proposed change would need go further and say that a certain number of ministers cannot be sitting TDs (perhaps even all). This would be achieved by ensuring that on being appointed as a minister, if you are a TD you must resign your seat (we might need to think about alternatives to by-elections to replace these – but if you kept by-elections there might be a real resistance to appointing sitting TDs.) Added to this might be a proposal to allow ministers who have resigned their seats the option of being automatically returned at the subsequent election.
What issue/ problem is the proposal trying to address?
One of the criticisms levelled at the Irish political system is that the Dáil did not provide adequate oversight of government. One of the disadvantages of the fusion of the parliamentary and executive branches is that they become so closely aligned that one of them does not do its job properly. That inevitably seems to be parliament, which should oversee government action. (We might also expect that it makes legislation, but for largely good reasons the power to initiate legislation has passed to the executive, which the legislature is meant to scrutinise.) Because they are fused, they become one, and the legislature is reluctant to subject itself to much criticism.
This is especially the case in Ireland where a combination of factors makes for a particularly supine parliament. One is institutional. The government in Ireland controls an important resource -Dáil time – to a large extent. Government has a veto over much of what the Oireachtas can do because of Article 17.2 of the Constitution, which prevents the Dáil from voting to spend public money without the government’s approval. Look also at the way the committee system works. It is instructive to note that the Public Accounts Committee, which is generally regarded as the most powerful of any of the Oireachtas committees, and has by convention a chair from the largest opposition party, must seek government approval for any sustained inquiry into government action.
Other reasons for the control of the Dáil by the executive are social. The Irish political class is small, and apart from the 2011 election, turnover is usually small. TDs and ministers from all parties know each other very well, and in this small, village-like atmosphere TDs are reluctant to be openly critical of ministers from their own party. Perhaps more important, however, is that TDs have a career path which is almost completely controlled by their party leader. In the Irish system power is centred in government, and for that reason ambitious TDs want to get there.
The committee system is weak and party leaders tend to control allocation of positions. So if you ultimately want to get into cabinet, you have no incentive and limited opportunity to provide vigorous oversight of your own party’s performance in government.
The fusion of the Dáil and government is accentuated by the fact that ministers almost exclusively come from the Dáil. This means there is no social separation of ministers and TDs, who have similar backgrounds and will have worked together over time. And because being a minister is a real ambition, there is less incentive to insist on the empowerment of the Dáil.
The lack of oversight is not the only problem with the relationship between the government and the Dáil. The rule that ministers also limits the pool of talent that taoisigh have to choose from. If as some suggest, ministers lacked the requisite skills to deal with the financial crisis, it may be because all ministers must commit themselves to re-election and that only a certain type of person (with a certain type of outlook) will ever become a minister. This would separate the positions of parliamentarian from those of ministers. The skills involved in being a TD and a minister are quite distinct but the current system restricts who can become a minister to a limited number of people with a specific background. Although we’d like to see intelligence and an eye for detail in both, in fact being a good parliamentarian, where aggression and tenacity are important traits, differs from being a minister, where an ability to sell one’s side and to compromise might be more important.
Having ministers who are all parliamentarians damages the operation of cabinet as a forum for uncovering flaws in proposals because all ministers tend to have a similar background and training. It will therefore enable Taoisigh to choose from a far wider talent pool when constructing their cabinet.
It is also suggested that ministers are not full-time in their jobs. If you need to get re-elected in a geographic constituency, we know that ministers will tend to look after the needs of that constituency perhaps to the detriment of the national interest. With this proposal it might suspend the link between ministerial portfolio and constituency representative. It will allow, and that they should work full time on their portfolio and not depend on support in their constituencies for promotion.
Where is it used?
Ireland is comparatively unusual in the restrictive nature of appointments to government. As well as the stipulation that ministers must be parliamentarians, there is also a limit on the size of the cabinet (though no constitutional limit on the number of junior ministers.)
In many other countries ministers may come from either parliament or not (for example, Germany and Spain). In other countries (e.g. Bulgaria, Belgium, Sweden and Slovakia) ministers may come from parliament, and frequently do, but they must (often temporarily) give up their seats if they wish to serve in government.
In the US, where the separation of powers is complete, one must resign one’s seat to take up a position in cabinet, which one must win back in a scheduled election, often against an incumbent. For this reason, and because positions in Congress are treated as quite senior whereas many cabinet posts are regarded as less important, it is rarely the case that senators or representatives resign their posts to take up a cabinet position (although Hillary Clinton is an example of where it happened).
Although it is available to other European countries to appoint outside experts, even when non-parliamentarians are appointed, most have long standing connections or positions within the party. It is also the case that it is much easier to be elected to parliament in many other European countries where the electoral system allows the party to place people in places to easily achieve election.
Problems with this proposal
As with any proposal it is not always clear in advance whether it will work and achieve expected benefits. There will be unexpected consequences; but this should not deter any change. We might also debate whether the expected consequences would be regarded as positive. For instance if it does work to achieve a greater separation of powers between government and the Dáil, this could invoke a certain deadlock between the two. Potentially government proposals will get rejected by the Dáil leading to slow or weak responses to policy problems. Irish governments are regarded as quite decisive, and to lose this might be a problem, especially in times of crisis. Against this, one could argue that governments have perhaps been too decisive. An example might be the Bank Guarantee Scheme which was pushed through the Dáil with too much ease, and perhaps more scrutiny would have been better.
The fact that the Bank Guarantee Scheme was supported by even the opposition parties, who presumably have a strong incentive to oppose government action and expose flaws in it, might suggest that the problems in the Irish political system do not relate to the separation of powers, but to a lack of expertise. These would not necessarily be solved by this proposal (expect that having ministers with greater expertise in cabinet might help).
It might also lead to a situation where governments struggle to pass its legislative programme, especially where some of the measures maybe unpopular. However, one could argue that it would then require to the government to come up with other, better policies which it can sell to TDs and voters. And it is unlikely that governments and the Dáil would be completely detached, as the government would still require the support of the Dáil. It is more likely that it would just rebalance the power between the two.
One might argue that greater expertise can come in the form of policy advisers and a more policy-focussed civil service. Ministers in Ireland at least have close contact and an understanding of the positions of ordinary people because of their dual role as elected representatives. Expert ministers may be more detached ministers, and this could weaken the democratic legitimacy of executive action.
Within the government the practice of appointing extern ministers could mean that the Taoiseach becomes much more powerful as other ministers will not have parliamentary backing to rely on in a dispute with the Taoiseach. Furthermore it will be much easier for the Taoiseach to fire ministers as they have few threats against the Taoiseach. That said, there is no evidence from other European countries that the prime minister is all-powerful within government; if anything the opposite is true.
The introduction of non-parliamentary ministers would be a radical departure from current Irish practice, but it would move Ireland towards a European norm. There are some reasons to think that it would lead to a greater separation of power and a rebalancing of powers between the executive and the legislature, but on its own it may not be a panacea to all that’s wrong with the Irish political system.