President Higgins could refuse to grant a general election

Before Leo Varadkar rushes off to the Áras, all sides should reach for the Constitution

Michael D Higgins: If the President was to decline a request for an election, the Taoiseach would be forced to resign.  Photograph: Julien Behal/PA Wire

Michael D Higgins: If the President was to decline a request for an election, the Taoiseach would be forced to resign. Photograph: Julien Behal/PA Wire

 

Politicians in Leinster House are already playing the blame game for an unwanted election, but all sides might be well advised to take a deep breath, reach for the bookshelf and consult Bunreacht na hÉireann.

Despite what their more gung-ho supporters may think, it will not be the respective leaders of Fine Gael or Fianna Fáil who will ultimately decide if there will be a Christmas election.

That prerogative rests with the President, unless the Taoiseach chooses to cut and run to Áras an Uachtaráin before next week’s Dáil motion of no confidence in the Tánaiste.

In the eyes of many of his own people, Leo Varadkar should let Fianna Fáil pull him down so that they will be blamed for an election that will be unpopular with voters in the run-up to Christmas.

Even though many may not realise this, and this point is counter-intuitive, the President has no option but to give a Taoiseach who enjoys a Dáil majority permission to call an election if the Taoiseach decides to seek it.

Another coalition

However, he can refuse that very same privilege to a Taoiseach who does not enjoy a majority – on the grounds that it may be possible to form another coalition of parties without an election.

Such an action, however, would place President Higgins in an invidious position, especially little more than a year out from the scheduled presidential election.

A careful reading of Article 13.2.2 of the Constitution, followed by a reading of Article 28.10, is recommended. If Fianna Fáil follow through with their no confidence motion, it will provide parliamentary confirmation that the confidence and supply arrangement is dead and that the Government has lost its majority in the Dáil.

Article 13.2.2 of Bunreacht na hÉireann states that “the President may in his absolute discretion refuse to dissolve Dáil Éireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Éireann”.

A similar dilemma was faced by president Douglas Hyde in 1944 as the second World War raged

The crucial importance of this power was recorded by Michael McDunphy, the secretary to our first president, Douglas Hyde.

McDunphy wrote: “This power is unique in the Irish Constitution. It is the only case in which the president has an absolute and unquestionable right to act in direct opposition to a constitutional request from the head of the government, to reject an advice which in other matters is equivalent to a direction, which must be complied with as a matter of course.

“Under Article 28.10, if the president does refuse to grant a dissolution, the taoiseach concerned must resign, and the Dáil would then have the opportunity of nominating a successor.”

Higgins’s doorstep

Mr Varadkar is surely aware that if he arrives at President Higgins’s door seeking a general election in the aftermath of a Dáil vote that has collapsed his government’s majority, the President may well decline to accede to his request. This would make Mr Varadkar the shortest-serving Taoiseach in our history. It would also place Mr Higgins in an invidious position, a year out from a presidential election.

There are plenty of reasons that could be advanced for why granting a general election right now would not be in the national interest – particularly the upcoming Brexit talks. However, if the President was to decline a request for an election from Mr Varadkar, the dilemma is that the Dáil is unlikely to elect a successor anytime soon, which would also result in political logjam.

A similar dilemma was faced by president Douglas Hyde in 1944. The second World War raged. In the midst of this national emergency, de Valera’s minority Fianna Fáil government lost a vote in the Dáil on a transport Bill, and the taoiseach saw this as a good pretext for an election to seek an overall majority. This was a high-stakes political gamble. President Hyde recognised that the people did not want another general election, given that one had taken place in the previous year. He was also conscious that an election was not desirable at the time of major European (and global) crisis.

Records from this time show that Hyde came very close to refusing de Valera’s request for an election. Ultimately, however, Hyde decided that if he did not grant de Valera an election, the Dáil would be unable to elect a new taoiseach and instability would ensue. De Valera won the subsequent general election at a canter.

Dr Brian Murphy lectures in Dublin Institute of Technology. He is the author of Forgotten Patriot: Douglas Hyde and the Foundation of the Irish Presidency (Collins Press)