Colm Keaveney’s vote against the Social Welfare Bill this week inadvertently highlighted an interesting constitutional conundrum.

Part of the Labour chair’s complaint was that responsibility for the budget had, allegedly, been delegated to the four-man “Economic Management Council”. He claimed that this new body – which has already been coined a “Government within the Government” – effectively “sprung an odious budget” on the lower house. The EMC, created by the current government, consists of the Taoiseach and Tánaiste along with Ministers Noonan and Howlin. Keaveney’s complaint was echoed today by a minister of the Government itself: Simon Coveney was reportedly unhappy that the cabinet was not more involved in preparing the budget.

What Keaveney implied was essentially that this novel body had bypassed the Government as the formal constitutional organ, the “cabinet” of fifteen – in its most important policy-making function: that of negotiating and formulating the State’s budget.

While this might be objectionable for various reasons, why is it constitutionally problematic? The Irish Constitution provides for a system of cabinet government, albeit without using this expression. Under Article 28, the executive power of the State is to be exercised by a Government consisting of between seven and fifteen members (the full complement is normally used). Moreover, the Constitution states: “the Government shall meet and act as a collective authority, and shall be collectively responsible for the departments of State administered by the members of the Government”. This constitutional principle of “collective responsibility” is recognisable in the everyday conduct of government and is deeply internalised not only as a constitutional principle but as a necessary condition of effective government. It is taken to mean, in particular, that ministers must collectively present a “united front” to the public and practice “group discipline”. Individual ministers must toe the line once decisions are made – or resign to recover their freedom of speech. This has been held to implicitly require the confidentiality of cabinet discussions subject to very limited exceptions (Article 28.4).

Therefore, unlike other parliamentarians, ministers’ acquiescence is constitutionally prescribed. The purpose of the rule is to protect the unity of the State’s executive power – in particular, by preventing the Government from splitting into competing factions. It was alleged the principle was undermined, for example, when the Green party ministers announced a time-limit to their participation in government in November 2010, and when in January 2011, Mary Hanafin disclosed she had voted against Brian Cowen as party leader, without resigning her ministerial seat. Thus, the collective responsibility of the executive has become strained since the onset of the economic crisis.

However, collective responsibility is not only a principle of unity requiring Government to publicly suppress its internal tensions. It also requires – more fundamentally – that Government decisions must be made collectively by the cabinet of ministers: the cabinet as a whole must meet, consider and approve Government policies. The State’s executive power cannot be alienated to any external authority; similarly, however, it cannot be divested to any individual or sub-grouping within the Government itself. For example, the cabinet could not abdicate its role to a Taoiseach with presidential-style pretensions. Blair’s famous “sofa government” has shades of unconstitutionality (not to speak of authoritarianism). Thus, for example, Vincent Browne argued that the bypassing of cabinet in the infamous bank guarantee of 2008 violated the collective authority principle provided for in the Constitution.

This might seem a little doctrinaire: why should the cabinet not willingly divest or at least delegate its power to a committee? The answer lies in the nature of governmental responsibility within the overall constitutional structure. Constitutionally, ministers must support and affirm the government – the quid pro quo is the assurance that they have taken responsibility – or at the very least, have been involved and consulted – in formulating and debating its policies. If ministers are publicly known to have been effectively excluded from important decision-making processes, this risks undermining the expectation that they publicly accept responsibility for those decisions. In this light, perhaps it is thepublicity of the ECM which is problematic; traditionally, the composition and functioning of cabinet committees was not disclosed in the UK, based on the fear that any public knowledge of delegation, or the decision-making structure within cabinet, would undermine collective responsibility.

In any event, the principle of collective responsibility is not imposed purely so that the Government can represent some sort of potent phalanx displaying its unity to the public: rather, it is a necessary corollary of the more fundamental constitutional principle: that the Government is responsible to Dáil Eireann as the “House of Representatives”. This ideal of “accountable” or “responsible” government is arguably one of the keystones of the republican constitutional order. But the government, as a singular entity, cannot effectively be held to account unless it acts as a collective decision-making body. It cannot be responsible, collectively, to the lower house, unless its decisions are in fact made collectively. Thus, the collective responsibility of ministers – at first glance, an authoritarian and arcane principle, or even just a “dull but worthy” precept of effective government – is in fact a necessary corollary of the model of accountable government, inherited from British constitutional tradition and now legally codified in our basic law.

Indeed, in the 1990s, the Supreme Court described collective cabinet responsibility as a constitutional “right” of the people – and not simply as a prerogative of ministers themselves, to be waived or dispensed with when convenient. Therefore,  collective responsibility of Government members – which in turn implies collective decision-making – goes to the core of our constitutional system of Government. Executive power must be exercised by a plural, collegial government; moreover, it cannot alienate this power to any individual or clique, because this would make a nonsense of the Government’s responsibility before the directly-elected lower house.

Thus, collective responsibility is just that – a responsibility, not a privilege or prerogative: the State’s executive power must be exercised collegially, not on the authority of individual diktat or a favoured “inner clique”. The Taoiseach is not a presidential figure, but rather an executive chair. This, arguably, is one of the overlooked democratic virtues of our constitutional order. It is generally thought desirable that power should be dispersed and checked across different bodies, persons and assemblies rather than being vested in arbitrary individual discretion. We all intuitively accept that power is less arbitrary, and on the whole more considered, where exercised collectively and deliberatively rather than by individuals (the fact that cabinet meetings are secret mitigate this point). We often look to parliament as the main check on executive power; we opine the weak control the Oireachtas exerts over the Government as facilitating “executive dominance”. However this concern, although important, overlooks the deliberative and moderating virtues inherent in the collegial and collective form of cabinet government itself. Thus, the executive is “checked” and “balanced” from within – partly by virtue of the constitutionally-enshrined principle of collective authority. This protects the authority of cabinet from being undermined by external bodies , but it also prohibits the government from voluntarily alienating or divesting its own power, whether externally or to internal cliques.

Admittedly, the precise scope of the principle is shrouded in ambiguity. There is a fuzzy distinction between the temporary and conditional delegation of power – often a practical necessity – and its outright abdication or divestment. A constitutional paradox is that the vesting of the State’s powers in specific organs – executive, legislative, and judicial – itself limits these organs in the exercise of those powers. For example, the Oireachtas cannot legislate away its own legislative authority; the same, however, applies to any devolution or divestment of executive authority by cabinet. The EMC has been defended against allegations that it undermines the authority of cabinet on the grounds that formally speaking, it operates like any other cabinet sub-committee: its proposals must formally be approved by the “full” cabinet. Indeed, Taoiseach John A Costello retorted to De Valera’s Dáil question:

“It is in accordance with principle and general practice of governments to refuse to disclose in public even the functions or the composition of Cabinet committees. This principle is founded upon the collective responsibility of the Government and upon the fact that the internal arrangements which may be made by Ministers for discussion among themselves are essentially a domestic matter and no concern of Parliament or the public.”

The mere existence of the EMC is not in itself clearly unconstitutional: there is nothing to prevent cabinet from delegating to a sub-committee the power to work on proposals or recommendations which are then brought to the Government for consideration. However, it would be clearly improper for a practice to emerge whereby the cabinet of fifteen simply ratified, formally, decisions made by an inner coterie. Thus, it might be argued that the constitutional principle of collective authority cannot be read simply as a rule that the Government formally approve decisions made elsewhere; it seems implicit that is must also deliberate on these. However, the prevailing view amongst specialists in public administration, particularly in the UK, is that this expectation is inconsistent with the practical reality of executive government, and that the cabinet must therefore be seen as a “ratificatory” rather than deliberative body – partly because it is too large and unwieldy to be an effective decision-making body. An alternative argument is that it is the visible divestment of decision-making to a cabinet faction – rather than its actual delegation that undermines its collective authority. In either event, collective responsibility means the Government as a whole must stand over these policies eventually decided: only then can it assume responsibility to the parliament and ultimately, the people. What precisely this means for the Government’s curious new command-structure remains open to question.

 

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Written by Eoin Daly

Eoin Daly is a lecturer in the School of Law at the National University of Ireland, Galway. His main interests lie in constitutional studies, political theory, religious freedom, the separation of church and state, republicanism, Rousseau and Rawls. You may contact Eoin at Eoin.Daly[at]nuigalway.ie.