The Irish Constitution / Explained by Darrell Figgis

by Darrell Figgis

Eight out of twelve Ministers, therefore, are not permitted by the draft to be, or to remain, members of the Legislature. If they were members before their appointment as Ministers, they must resign. Consequently, within a few days of a General Election, bye-elections become necessary in respect of so many Ministers as were elected as deputies—although other Ministers who are elected as deputies may continue to remain both as Ministers and as deputies. The General Election, however, was held under the Constitution on the principles of Proportional Representation. But bye-elections, in such a case, cannot be held according to Proportional Representation. They become a party tussle between two or more candidates. The first effect of this arrangement, therefore, is to increase the number of elections, with their confusion and unrest, to create party contests in their strongest form, and to undo the proportional representation of the nation in the Legislature. Someone of an entirely different party might be returned in such a bye-election from the person who resigned on appointment as Minister; and the representation of minorities be directly injured as a consequence.

That would be the immediate result. The next to follow would be that the nation would find itself faced with the danger of an Executive within an Executive. For the eight external Ministers are to be appointed for the whole life of that Chamber. They are to be nominated by a Committee itself specially elected for that purpose. They cannot be removed during the life of that Chamber unless the Committee finds that they have been guilty of malfeasance, incompetence or disobedience to the will of the Chamber—definite sins of omission which are not always easily susceptible of proof. This is of itself sufficient to remove them from constant control by the Chamber. But the four internal Ministers are, for some reason, to be appointed in quite a different manner, and they hold office by quite a different tenure. They are to be appointed on the nomination of the President of the Council. They can at any time be removed by an ordinary vote of the Chamber. They must therefore study the Chamber, and devise their policies to suit its will, for they are subject to its constant control.

The whole twelve, it is true, are said to form one single Executive Council. But what are the chances of this? Is it not only too clear that the four internal Ministers, since they can be removed by an ordinary vote (which the eight cannot), will frequently, and in most larger matters, meet and act separately together in coming to their decisions? Will not necessity drive them to this? But this would mean at once, not one Executive Council, but two—one within the other. This is acknowledged to be a dangerous practice. We know what happened in England when during the European war a similar practice was adopted, and how soon it became necessary to change it. And is it not equally clear that they will, and must, use the majority that keeps them in power to make the eight external Ministers subservient to their will, if their policies cross, without calling them into council? For the policies of all Ministers cross, and inter-cross, and should do so if there is to be a harmonious and healthy administration, especially in questions and policies of finance.

Ultimately the temptation will always be present to these four internal Ministers to get subservient persons nominated to the positions to be held by the eight external Ministers. They themselves will have come to power by a majority of the Chamber. Of that majority they will be the acknowledged leaders; and it would be strange if they did not use that majority to find eight external Ministers to their liking. But where this happened (as happen it certainly would, in the ordinary human probabilities of the situation) a very remarkable result would come to pass, unlike anything in the history of representative government. This is, that the Four would in practice dictate the Executive policy of the Eight, but they would not be answerable to the Chamber for the administrative conduct of those eight departments. They would require what must be done, but they would not themselves be responsible for the manner in which it was done, or whether it were done at all. For the Eight would have been nominated for the life of the Chamber by a special Committee, they would not be members of the Chamber, they would not be susceptible to a vote of lack of confidence, but could only be removed when the Committee which nominated them had found them guilty of some public misconduct in their administration.

The first result of this amazing separation of executive and administrative responsibility would be that the Chamber, looking from one to the other in the attempt to fix the ultimate responsibility, would find itself with only the vain shadow of control. For the Eight would in theory be responsible to it, but in practice—certainly on all major matters of policy—would be directed by the Four. Yet the Four could not be held responsible for the doings of the Eight. And the second result would be that the Eight would be little more than Civil Servants. Yet they would not be Civil Servants. They would neither be Ministers nor Civil Servants, having neither one kind of responsibility nor the other.

The baffling consequence would be that the Chamber would not only lose control over the Eight, but, because of the same division between executive and administrative responsibility, would lose control over the whole Executive (including the Four) in respect of functions ascribed to the Eight. It is in the details of administrative practice that the control of the Legislature is usually most important; and it is in just these details that, by the division of the Council into two kinds of Ministers, with different methods of appointment and removal and different sorts of tenure, that the Chamber will under these provisions have lost its control. It is true that it would have the remedy of putting out the Four; but few Chambers, having appointed the head or heads of a Government, desire to throw them out except on some fundamental, paramount issue. The remedy might be worse than the evil; and thus, by its reluctance to take so drastic a step, and by the division of responsibility, it would lose its continuous control over the Executive which is the very breath of legislative freedom.

It is unnecessary to point, further, to the danger of nominating a large part of an Executive under these circumstances through a Committee. It is notorious that Committees are, or can be made, more easily accessible to intrigue than larger assemblies. The Chamber itself should be its own Committee for the selection of Ministers, on the recommendation of the President of the Council, with whom they would have to work. This provision still further removes the Executive from the control of the Chamber. And so the order of responsibility is inverted, which the plan of the Constitution elsewhere so constantly emphasises. For the People may at all times, by the Referendum and the Initiative, control the Legislature. But the Legislature cannot, under these provisions, at all times and so simply control the Executive. And so control fails just at the point where authority tends most to arrogate power to itself.

Incidentally, also, the Legislature loses what generally has proved its greatest source of strength. For the best informed critics of any Chamber are those who once were Ministers, who appreciate the responsibility of Ministers, and who temper their words as members with their knowledge and experience. But, under these provisions, a member who is appointed as one of the external Ministers ceases to be a Member. If he therefore finds it incumbent on him to resign, because of disagreement with his colleagues of the Executive (Inner or Outer), he ceases to be both a Minister and a Member, and his service and knowledge are lost to the Chamber—not to speak of the loss of detailed information on the cause of the particular issue of his resignation, on which the Chamber may wish enlightenment. Indeed, such a provision as this seems peculiarly arbitrary and meaningless.

There is, indeed, much virtue in the liberty of the Chamber to appoint as Ministers persons who may be specially qualified, but who may not be members. In the jostle at the hustings to enter a Chamber of but two hundred members it is unlikely that the best ability would always succeed, if it were so much as willing to share the fray. A Legislature should therefore not be hampered in the choice of its Executive by restricting that choice to two hundred persons. If persons, not members of the Chamber, were appointed as Ministers, clearly they could not vote; but they could be present, could speak, and could propose motions on behalf of the Executive of which they were members. But the whole Executive should share an equal responsibility, and be subject at all times to the continuous control of the Legislature, of which they are the servants, not the masters.