Executive Power and ‘Caretaker’ Taoisigh

        Conor Casey, European University Institute

Many constitutional systems share a similar and pronounced dichotomy between the ‘large-C’ written Constitution and the ‘small-c’ constitution in action and its ‘amorphous and ever-changing body of constitutional norms, customs, and traditions’. For example, while foundational constitutional and statutory text will paint the legislature as the preeminent branch of government, in practice the executive is invariably the most powerful by far. Prime Ministers and Presidents tend to be highly predominant in domestic policy, the leading actor on the international stage, and delegated very capacious administrative, regulatory, and security powers by the legislature. The root of the executive’s current power lies, broadly speaking, in increased expectations put on the State to meet the political fears and hopes of the polity, and to promote the common good. To fulfil such expectations, it was the executive who was bestowed, above any other political actor, the daunting role of steering the polity through the complexities and dangers of government. It was granted this role and delegated immense powers largely because of the kinds of institutional traits it enjoys in contradistinction to the legislature and judiciary. These are the kind of traits famously praised by Alexander Hamilton in the Federalist Papers, where he wrote that the core advantages of the executive branch included an ability to act with unity, speed, secrecy, and a capacity to be perpetually active and not hamstrung when acting by elaborate procedural formalities like a legislature.

 

The ongoing Covid-19 pandemic offers both a good example of this executive predominance in action and a stark reminder of the fact the common good demands a body like the executive be perpetually available to act to protect the State and its citizens. The crisis also highlights, I argue, the wisdom of the growing consensus amongst commentators that the executive in Ireland always enjoys full legal authority to carry out this bedrock function, regardless of whether they are in a ‘caretaker’ capacity. It also cautions against using the phrase too loosely in order to avoid the risk of creating an ambient, but consequential, misunderstanding about the scope of executive power during a so-called ‘caretaker’ period.

 

For readers unfamiliar with the term, the phrase ‘caretaker Taoiseach’ has been frequently used in recent months in both print and social media. This term broadly captures the operation of several provisions of the Constitution dealing with a scenario where a Taoiseach has resigned, but where a new Taoiseach has yet to be appointed by Dáil Éireann. Article 28.11 makes it clear that if the Taoiseach at any time resigns from office the other members of the Government shall be deemed also to have resigned from office; ‘but the Taoiseach and the other members of the Government shall continue to carry on their duties until their successors shall have been appointed.’ It also holds that the members of the Government in office at the date of a dissolution of Dáil Éireann ‘shall continue to hold office’ until their successors shall have been appointed. Ireland was faced with this exact situation just before the Covid-19 pandemic swept the country, as when the 33rd Dáil first met on 20 February 2020, Leo Varadkar T.D. failed to be reelected as Taoiseach. Leo Varadkar resigned immediately after and thus when Covid-19 struck shortly thereafter in March, at the helm of State power stood a cabinet who did not command the confidence of Dáil Éireann and held on to its constitutional authority through Article 28.11.

 

The Article itself, however, is regarded by constitutional scholars and lawyers as one placing no legal impediments on the executive’s ability to exercise its authority: whether to execute the law, introduce bills, wield delegated statutory powers, or engage in foreign affairs. Politically, of course, there is a hefty moral expectation an outgoing executive will not, without very good reason, use its formal legal powers and prerogatives with muscularity prior to appointment of a new Taoiseach and government. For example, an outgoing executive might attract political controversy by appointing a raft of judges or bureaucrats to important state agencies, but it would face no legal impediment. This distinction is likely to be of little importance during times of normality, where the need for rapid executive initiative is not pressing and citizens can wait for the nomination of a new executive. However, this distinction becomes of critical importance during times of crisis which demand a swift response, as it implicates the legality of measures taken by a ‘caretaker’ administration to safeguard citizens and the fundamental functioning of the State.

 

Repeated references by commentators in traditional and social media to the government as a ‘caretaker administration’ headed by a ‘caretaker Taoiseach’ are not, I should stress, by themselves objectionable. The adjective ‘caretaker’ is a pithy one which can helpfully capture the fact an executive retaining its powers via Article 28.11 is not operating at full steam, as it were, in terms of policymaking, i.e. it is very unlikely to be issuing ambitious white papers or strategic plans for future budgets. Instead, problems arise if the phrase is employed by commentators in a way that fails to carefully distinguish between hard legal, and amorphous political, limitations on executive power.

 

My concern with pedantry in this context does not stem from a fetish of legalism, but from lessons derivable from experience. In previous instances, public discourse about the Constitution based on an ambient, but misleading, sense amongst segments of the public and political elite of what it required, ultimately led to negative consequences that could have been avoided. An example which immediately comes to mind is the seemingly widespread perception that the 1937 Constitution put iron-clasps on the political branches when it came to taking steps to protect childrens’ rights from parental harm. Another influential misunderstanding is that the Constitution is a severe block to progressive redistributive measures which touch upon private property. Both perceptions are not only wrong in principle - based on prevailing constitutional jurisprudence - but took on a life of their own and eventually metastasized into concrete political consequences. In the former instance spurring a largely symbolic, underwhelming, and substantively hollow referendum campaign to insert a provision on childrens’ rights into the Constitution. In the latter, prompting repeat calls by politicians and NGO’s for what may prove to be a pointless referendum recalibrating property rights and the State’s power to regulate them, a campaign which will surely end up being a waste of money and political capital, given that both could be better spent passing legislation the Superior Courts would almost certainly uphold unless patently irrational.

 

With regard to discourse around so-called ‘caretaker’ Taoisigh, the knock on effects of imprecision about what the Constitution provides could have even more serious consequences than these examples, if it were to ever encourage enough people to hold the view that Article 28.11 restrains the executive from using its full authority to safeguard the safety and well-being of the State. If enough citizens or commentators began to conflate these limitations it could have a knock-on effect upon the executive’s willingness to use its full legal power during times of crisis, or the public’s perception of the legality and legitimacy of the measures it takes. In circumstances where a failure to take or maintain a sense of public legitimacy about executive action would have serious consequences for the common good, this kind of effect would of course be undesirable. Adopting an interpretation which greatly weakened the executive would also ignore another of Hamilton’s famous and insightful contributions to constitutional design; which is that polity’s who establish a weak government may occasionally be forced to ‘overleap the bounds’ of legality when imperative need arises. Vermeule dubs this the ‘Publius Paradox’, and argues that it manifests when excessive constitutional constraint has the ironic and perverse consequence of empowering the executive, by pushing it to break the law to achieve an exceptionally pressing goal - like saving lives or the safety of the State - which in turn creates precedents for future executive lawlessness.

 

Thankfully, on this occasion, executive actors clearly did not feel themselves so constrained and swiftly moved to take robust action to safeguard public health. In doing so, they clearly acted on the premise the Constitution did not impeach the legality of seeking exceptionally broad statutory power from the Oireachtas to impose travel restrictions, close businesses, schools & churches and provide robust powers of stopping and detention to the Gardaí. In May, the issue received its first (albeit very brief) judicial treatment in O’Doherty v Minister for Health [2020] IEHC 209, where in the context of a challenge to the legality of sweeping powers delegated to the executive, the High Court rejected the argument the executive’s legal powers were diluted by the operation of Article 28.11.

 

The combined weight of these executive and judicial precedents, supported by a healthy dose of constitutional pedantry, will hopefully put to rest any lingering concerns citizens and commentators may have about the legal scope of a so-called ‘caretaker’ government’s power, and dissipate whatever ambient mist of misunderstanding may have been hovering dangerously above Article 28.11. This will encourage future Government’s - including ‘caretaker’ administrations – to have confidence in using the full array of its legal authority to protect the State and the lives of its citizens in moments of unforeseeable crisis like the one we currently face. They will also assure an executive that is tackling such a crisis that they do not face an agonizing choice between either acting lawfully or acting to protect the lives of citizens and safety of the State.

 

Conor Casey is a Max Weber Fellow at the European University Institute and a member of the Covid-19 Law and Human Rights observatory. 

Suggested citation: Conor Casey, ‘Executive Power and "Caretaker" Taoisigh’ COVID-19 Law and Human Rights Observatory Blog (10 July 2020)  http://tcdlaw.blogspot.com/2020/07/executive-power-and-caretaker-taoisigh.html

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