Noel Whelan: Latest Cabinet crisis reveals Kenny’s weakness

The Government's limited capacity to govern was apparent from the moment of its birth. The Government depends on Fianna Fáil abstaining in order to get anything passed in parliament. It also has to rely on the support of volatile Independents and has had to include some of them in Cabinet.

If those two weaknesses were not disabling enough, the Government is led by a Taoiseach, Enda Kenny, who is on his last lap, and, therefore, likely to be beset by inevitable tensions about succession.

Any of these vulnerabilities threatens the Government; cumulatively they make it very, very weak.

The question which everyone has been asking since this administration was formed is how long it will last? Unfortunately there is a scenario more worrying than this Government being short-lived. That is the one where it survives because it does very little.

A short-lived but decisive government would at least test the potential of our "new politics" to address the many challenges Ireland faces.

A government that survives by making no decisions not only threatens this country’s capacity to tackle pressing social problems and address the economic blowback from the Brexit vote but also undermines public confidence in the political system itself.

From the outset there were telltale signs that avoidance would become the Government’s survival mechanism.

It was apparent in the pedestrian pace of the negotiation of the confidence-and-supply agreement with Fianna Fáil, and then in the delay in finalising the deal with the Independents.

Managing expectations

It was obvious when the Taoiseach felt it necessary to expand the number of junior ministerial jobs so as to manage expectations in his parliamentary party.

These vulnerabilities are also the reason for the Government’s penchant for the political poc fada, where controversial issues such as water charges are sent off to a commission and sensitive issues such as abortion are deflected to a citizens’ assembly.

In the last few days this Government’s vulnerabilities were separately exposed. Fianna Fáil flexed its muscle by toppling the Government-appointed chairman of the water charges commission.

The Taoiseach was confronted openly at the Fine Gael parliamentary party about the need for new leadership before the next election.

And the Independent Alliance Ministers forced the Government to abandon both its constitutionally-mandated requirement to act collectively and its responsibility to oppose unconstitutional legislation.

Constitutional provisions

The central tenets of a functioning democracy are free and fair elections and the rule of law. Adherence to constitutional rules is obviously central to any democratic legal infrastructure.

This week the Cabinet merely “noted” the attorney general’s advice and then decided to make no decision on whether to oppose Mick Wallace’s Bill allowing for abortion in situations of fatal foetal abnormality.

In so doing Cabinet disregarded constitutional provisions requiring collective Cabinet responsibility, undermined those providing for an attorney general as legal adviser to the Government and ignored those prohibiting the Oireachtas from enacting unconstitutional legislation.

Last week Independent Alliance Junior Minister John Halligan uttered what will go down in this State's history as one of the starkest statements of disregard for constitutional law when he said of the Wallace Bill: "I don't know if this Bill is anti-constitutional. And I don't care."

It is a view which sits uncomfortably with article 15.4 which states: “The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.”

If it is not already the practice, it is surely now necessary when presenting deputies with ministerial guidelines when they take up office to hand them a copy of the Constitution.

By its very wording article 15.4 suggests the government and Oireachtas in deciding on a Bill must inform themselves and take a view on whether it is constitutional.

The Constitution sets up an office of attorney general to provide that advice to the government. Such advice when given is, of course, not a judicial determination but it is much more than just the opinion of one lawyer.

It emerges from the office of lawyers, supplemented where appropriate by opinion from one or more independent counsel outside the office, and it derives from repeated consideration of the same constitutional issues over decades of judicial and legislative deliberation.

Collective executive

Disregarding such constitutional norms is no trifling thing. British constitutional expert Prof Peter Hennessy put it well when he wrote: "The cabinet is a 'collective executive' above all else. Cabinet government simply cannot work without it."

In his seminal study of British prime ministers, he observes: “Set aside the traditional practices of cabinet government and you have instead pressure-cooker government: on occasions the steam can burst through the valves but ultimately the build-up of pressure causes the government to blow once and for all.”

This week the Cabinet looked dangerously combustible.