Our system is cabinet government but the cabinet did not decide on the bailout, troika deal or the budget, writes FINTAN O'TOOLE
IT IS obvious to everyone that ordinary government has ceased to function in Ireland. What has been less clear is that something even more profound has happened: our system of government has been set aside. This is not a rhetorical exaggeration, but a demonstrable truth.
Our system is cabinet government. We have a very weak parliamentary democracy but a very strong constitutional commitment to the power and authority of the cabinet. Article 28 defines the cabinet directly as “the government”. It then states, with the same absolute simplicity, that “the executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the government”.
This power, moreover, must be exercised collectively: “The government shall meet and act as a collective authority. . .” The standard work on the Constitution, by John Kelly, glosses this as meaning that, in relation to the statutory functions of government, “the valid exercise of these functions must presuppose a formal consideration and decision at a government meeting.”
We now know that, in relation to three huge decisions in the course of the present crisis, this constitutional system of government has been set aside. Firstly, it is clear from RTÉ’s documentary series Crisis that the single most important decision in the history of the State, the blanket bank guarantee of September 2008, was made without “formal consideration and decision at a government meeting”.
Ministers were phoned at their homes in the early hours and, they say, given minimal information. Mary Hanafin told the programme: “We were never presented with ‘do this or do that’.” They were not told of the most fundamental issue: the insolvency of the banks. (Micheál Martin: “It was presented as a liquidity issue. The solvency issue didn’t surface.”) And they did not, of course, meet as a cabinet.
It is utterly deplorable that these ministers (especially those who were in Dublin) abandoned their constitutional duties and didn’t get down to Government Buildings to find out what was going on. That does not take away from the fact that there is no meaningful sense in which the cabinet took the decision. (Incidentally, if those calls had constituted a cabinet meeting, the ex-ministers could not be openly discussing what was and was not said. They would be in breach of cabinet confidentiality. The fact that no action has been taken against them is implicit acknowledgment that there was no cabinet meeting.)
Secondly, in relation to the so-called troika “bailout” this time last year, the same programme made it clear that all the decisions on accepting that deal were made, not just before there was any cabinet meeting, but in circumstances where members of the government were deliberately kept in the dark. Dermot Ahern and Noel Dempsey were briefed by Brian Lenihan before they went on TV and, apparently in good faith, flatly denied that a bailout was in the offing. Ahern stated at the time that if negotiations were going on “obviously government would be aware of it and we are not aware of it.” The troika deal was rubber-stamped by the cabinet only after a binding agreement had already been made. The government did not “meet and act as a collective authority” before the deal was agreed.
Thirdly, we have the revelations last week that details of the next two budgets have been communicated to the EU and other European governments before those decisions have actually been made by the cabinet. For all the obfuscation, two things are completely clear.
The first is that these are binding decisions, not mere draft proposals. Michael Noonan’s accompanying letter uses the phrase “we have decided” before listing the measures.
The second certainly is that the “we” is not the cabinet. Enda Kenny told us: “Let me confirm something to you, the Cabinet has made no decision in regard to the budget which is on December 6th.”
The evidence is overwhelming: binding fiscal decisions have been made and communicated to the EU before the Cabinet has met to discuss or approve them.
We have, then, three clear instances in which the system of government laid down by the Constitution – collective decision-making by the Government acting as a whole – has been set aside.
This raises interesting legal questions. The Offences Against the State Act outlaws anyone “taking part in any way in a body of persons purporting to be a government . . . but not authorised in that behalf by or under the Constitution.” But the legal establishment, which felt obliged to warn us that cutting judges’ pay was a threat to our system of government, is oddly silent.
The Supreme Court has found the attorney general is obliged to act when faced with breaches of the Constitution: “It is a power, function and duty imposed on him by the Constitution”.
The duty of the Attorney General in such a case is entirely independent of her role as legal adviser to the Government. She has to ask the appalling question: on what lawful authority do the bank bailout, the troika deal and the budget rest?