Calm may soon descend on Irish politics, but for how long is another matter

ON FEBRUARY 8, the Irish public voted, but nearly five months later we still don’t have a new government.

We are in a unique political situation in a global health emergency. Normally, the fullscale closures of schools and childcare facilities, upending the health service overnight, shutting down the nation’s economy, freezing evictions and curtailing the movement of citizens to name but a few, would be unthinkable.

Yet, such measures were the minimum required to protect citizens. The fact that the people making these decisions had just lost an election, and in some cases had lost their seat, was unpalatable to many but constitutionally permissible. The Constitution is clear that the Taoiseach and Cabinet remain in office until their successors are appointed, but it was probably never in the contemplation of those who wrote it that it would take this long in such unusual times.

Extraordinary times normally call for extraordinary measures, but what has been unprecedented is the ability of the status quo to remain.

In spite of the reality of the newly elected Dáil not appointing a Taoiseach from its membership, the structures of the Oireachtas and the Cabinet have managed to hobble along. The Seanad has its elected members in place, but without the appointment of the new Taoiseach it has only 49 members instead of the required 60, as the Taoiseach’s 11 are absent.

This is something that is being challenged in the High Court, where some senators are arguing that it is possible for the 49 to carry on their elected role. The Constitution clearly states that the Seanad is comprised of 60 members, so it’s hard to see how that could be worked around.

It was clear on the night of February 9 that the only viable government formation was a Fianna Fáil, Fine Gael and Green coalition. The programme for government, which is being voted on by the

This right cannot be taken away without any form of check or balance

party membership of Fianna Fáil, Fine Gael and the Greens, may barely get over the line. However, it may not make for a happy arrangement.

There’s a core element of both Fine Gael and Fianna Fáil who only manage to just about distrust the Greens on agriculture more than they distrust each other. The document itself has already flagged a detailed mediation process, even stating that the parties have “different traditions” and their members and supporters “differ greatly on many issues”.

It doesn’t sound like a potential partnership that you would want to send on a blind date, never mind run the country.

If the programme is not agreed on, we are probably looking at another election.

Ireland has already changed from the experience of the pandemic. Policy decisions that were taken overnight were deemed impossible before, such as rent freezes, taking over private hospitals and banning evictions.

The pandemic itself has shown up critical issues like elder care and direct provision. The gradual unwinding of the regulations has highlighted issues such as the environment and the availability of affordable childcare.

There is also the time-sensitive issue of the Special Criminal Court and its continuance. The previous Seanad was able to pass the Public Health legislation as the new members had not yet been elected.

However, this does not apply for the current issue with the Special Criminal Court. Under both the Offences Against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009, resolutions by both Houses must be passed in order for this non-jury court to continue for terrorist offences or gangland offences. As trial by jury is a constitutional right of an individual in normal circumstances, this right cannot be taken away without any form of check or balance, therefore this provision must be renewed annually. The Dáil passed their part of the legislation on Wednesday. It will be a race to see if the Seanad can do their part before the legislation lapses next week.

Even if a government is formed, what sort of opposition will emerge in the next Dáil? A functioning opposition is just as critical as the formation of government. Without this, the role of the Oireachtas to hold government to account is weak.

Just as there are not enough numbers to form a left government, the same can be said for a left opposition. Any opposition where 21 Independents and others make up the balance could be liable to be picked off with deals for roundabouts and bypasses.

If the next Dáil is to elect a Taoiseach tomorrow after ratification of the programme for government, calm will descend on Irish politics. How long it lasts is anyone’s guess.