No taoiseach elected next week? Where does that leave us?

The slow dance of government formation has begun, but there seems little chance that a coalition government can be put together before the Dáil meets on Thursday, February 20th.

If the experience of 2016 is a guide, government formation could take months rather than days or weeks. That means that the current government, led by Leo Varadkar and including Ministers such as Shane Ross and Katherine Zappone, will remain in office. The State always has a government; this one will only cease to hold office when the next one is elected by the Dáil – no matter how long it takes.

When the Dáil meets at noon on February 20th, its first job will be to elect a Ceann Comhairle to chair its proceedings. The current Ceann Comhairle Sean O Fearghaíl intends to stand for a second term. Once that is done the next business of the House will be to hear nominations for taoiseach. As things stand no candidate will have a majority in the House, and nobody will be elected taoiseach.

However, having lost a motion on his own nomination and therefore the confidence of the House, Varadkar will be obliged to tender his resignation as Taoiseach to the President, which he would be expected to do immediately.

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But he does not leave office; nor do his Ministers. Under Article 28 of the Constitution, the Taoiseach and the government continue to hold office – and to discharge their duties as Ministers – until a new government is appointed. They will become a “caretaker government” whether they like it or not: a caretaker government cannot resign.

No deadline

Another point: there is no legal time limit on the formation of the government and the interregnum. Political reality may impose pressures – there will be Brexit negotiations and later the budget process to consider – but otherwise there is no deadline.

Nor do caretaker governments have any legal or constitutional limit on their powers. Clearly they cannot pass legislation through a Dáil in which they do not have a majority, but otherwise there are no constraints on Ministers. The Cabinet will continue to hold meetings, though this week’s meeting has been cancelled.

However, by convention a caretaker government should not take important decisions if it can avoid them – ie, decisions which initiate new policy or involve significant expenditure. Where such decisions are unavoidable, international convention suggests they should consult with parliament and opposition leaders, but there is no specific legal requirement to do so.

By and large caretaker governments in Ireland have restricted themselves to making a large amount of appointments to State bodies before they leave office. But that was when caretaker governments were in office for a few weeks. As 2016 demonstrated, such governments may now habitually be in place for much longer.

Committees

During the period between the 2016 election and the formation of the Fine Gael-Independent government, the Dáil established a number of committees, including the one which eventually produced the Slaintecare report. The only votes taken, though, were on the nomination of the Taoiseach and the order of business. Written parliamentary questions to Ministers continued to be answered, but no legislation was introduced.

Unless a new taoiseach is elected, Varadkar is expected to attend a summit of EU leaders which begins on February 20th in Brussels, to discuss the forthcoming EU budget process. There is also likely to be informal discussions on Brexit.

Varadkar may still be the Taoiseach for the St Patrick’s Day trip to the White House, though Sinn Féin expects its deputy leader Michelle O’Neill to be invited too.

There is another EU summit scheduled for late March. That may be a more realistic target date for a new government. But it is not a deadline. This will take as long as it will take.