An Mailleach’s guide to what comes after the deadlock of #GE16…?

When the new Dáil meets on March 10th its first job is to elect a Ceann Comhairle. Up to now this has been pre-ordained by the Executive and so took a little time. But now there will be an election by secret ballot. It hasn’t been done before, so this could take some time.

Each candidate must have seven other nominators, so there won’t be too many candidates. But it will likely take four or five hours before a new Ceann Comhairle takes the chair.

The next business of the new Dáil is to elect a Taoiseach. This is conducted by convention, even though the Standing Orders of the Dáil are silent on how this happens.

We assume the election will produce a clear result but if, as seems likely, no potential Taoiseach can marshal a majority in the Dáil, the Dáil may be adjourned for a number of days to allow negotiations between the parties continue.

The outgoing Taoiseach retains his power to influence the Order of Business, and so could call for the adjournment. The Taoiseach is expected to have the confidence of the Dáil. Article 28.10 states:

“The Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann unless…”

If there is a vote on the nomination of a Taoiseach and Enda Kenny were to lose such a vote he would have to tender his resignation to the president. This happened in 1989, when although Charles J. Haughey initially resisted, he eventually resigned.

During this time the country is not without a government. Article 28.11.2˚ of the Constitution states:

“The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed.”

This is how Brian Cowen remained Taoiseach until the 31st Dáil met to elect Enda Kenny, even though he no longer held a seat in the Dáil.

So those ministers who lost their seats continue to serve as ministers, and in the event of a protracted delay in the formation of a new government there is nothing to stop them having to answer questions in the Dáil or even introduce Bills.

This is possible because according to Article 28.8:

“Every member of the Government shall have the right to attend and be heard in each House of the Oireachtas.”

This won’t happen.

Instead, there will be an effort to elect a Taoiseach. In other countries, there is often a formateur appointed, often by the Head of State, as the person designated to lead a government.

The formateur will try to secure support for a majority government. There are also informateurs who are ‘honest brokers’ who are asked to help the parties put a deal together.

The Irish Constitution and Irish law is silent on this process. There are no time limits set out as to how long it should be before we give up and go to the polls again.

There would be an understandable reluctance on the part of the president to be drawn into the process though the current incumbent has been known to involve himself in political debate, so who knows?

This is uncharted territory – with no legal guide – so, politics trumps everything.

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