Coalition formation can’t stay on the back burner forever

It almost seems churlish talking about government formation in the midst of this awful crisis. But the reality is that things are coming to a head and the caretaker government will not have the mandate to continue after this weekend, even if it gets 100 per cent approval ratings.

The reasons for this are to do with Seanad Éireann. The elections for the Upper House always take place almost two months after the Dáil elections. They are happening this weekend and by early next week we will have a new Seanad. Well, almost a new Seanad.

There are 60 members in the Seanad and they are not elected in a normal way. Six are elected by graduates of the National University of Ireland and Trinity College. A further 43 are elected on vocational panels by county councillors and TDs. The remaining eleven are nominated by the Taoiseach.

And there’s the rub. The only Taoiseach entitled to appoint the eleven senators, according to Article 18 of the Constitution, is the “Taoiseach appointed next after reassembly of Dáil Éireann”.

Essentially, it means the next Taoiseach, whoever he or she is. Leo Varadkar is performing the role in a caretaker capacity.

And that has led to a bit of a limbo situation. We saw it in 2016 when it took 73 days to form the next government. It meant the new Seanad could not sit until a new Government, and a new Taoiseach, was appointed – who could then nominate the eleven senators.

So clearly, there is no new government waiting in the wings and we can’t have a new Seanad until a new government is formed.

Does it make any difference? Unfortunately, yes it does. Under our Constitution, any new legislation must make a full passage through both the Dáil and the Seanad. But if the Seanad is not up and running, the corollary is no Bills can be passed.

Already since the Coronavirus crisis has happened, the Government has rushed through one Emergency Bill with wide-ranging powers. This week with the last gasps of the outgoing Seanad, it is going to try and rush as many Bills as it can through both Houses of the Oireachtas.

Because from next week on, no legislation is possible because it would not be constitutional.

But that situation can’t go on forever. Already we have had legislation severely curtailing people’s freedom of movements – and even giving the State new powers of detention.

For more, read this week’s Connacht Tribune.

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