The very public ministerial rift over the Garda whistleblower affair reflects broader changes in the constitutional dynamics of cabinet Government. The constitutional model we inherited from Great Britain – in which the executive is responsible to the elected parliament – presupposes that the cabinet should act as a collective entity. However, the constitutional principle of collective responsibility seems increasingly at odds with political reality – particularly the changes that stemmed from the normalisation of coalition government and the transformation of media and communications over the past quarter of a century.
Collective responsibility of Government is not simply a political convention but rather a legal principle enshrined in the Irish Constitution. While article 28 of the Constitution states the government must be collectively “responsible” to Dáil Éireann, it also stipulates that it shall “meet and act as a collective authority”. This means that observance of the rule is not simply a matter of political convention, as in Great Britain – in theory, it is legally binding and justiciable at least in some instances.
Most fundamentally, the principle means that a government of (usually) 15 members will be responsible as a single entity to the Dáil. It also implies that government decisions are made by meetings of the whole cabinet – an increasingly tenuous idea in an era of powerful sub-committees and advisers. Traditionally the main corollary of the principle in practical terms was the confidentiality of cabinet meetings. But this is simply an extension of a broader idea: that the collective authority of government would be undermined by public knowledge of internal dissent. Therefore, the rule was historically understood as meaning that ministers who dissented from government policies should either remain silent or resign. The taoiseach, rather than the courts, has traditionally held the duty to enforce this through the power to dismiss ministers.
Arcane and authoritarian
The rule seems arcane and authoritarian – not least because it presupposes a rather naive public buying into an image of a united, cohesive government. It contradicts our expectation of openness and transparency. Yet it has some merit: in theory at least, it prevents government by faction, and ensures that executive power is located in a single accountable authority. For government to be effectively responsible, it must first be a collective – a single unit – rather than a cluster of undisciplined factions. Indeed, the principle first developed in Great Britain as a means of wresting executive power from King to cabinet.
However, the evolution of parliamentary government over the past few decades has undermined this core of the principle. The transformation of media and communications since the advent of the principle makes it unrealistic that the public could ever be shielded from knowledge of ministerial conflict and dissent. More decisively, the normalisation of coalition government in Ireland since the 1970s has led to greater toleration of open dissent and disagreement between ministers from different parties.
Indeed in the UK, the Liberal-Conservative coalition agreement included an “agreement to disagree” on certain issues that were to be treated as exceptions to the collective responsibility rule.
In Ireland, however, the principle has come under unprecedented strain since the onset of the economic crisis. To some extent, the unusually intense political pressures that have led to numerous backbench resignations and defections have been felt at the cabinet level as well – with the strain of crisis causing more open inter-ministerial conflict than might have been tolerated in normal times. The principle seemed to have been discarded almost completely in the events surrounding the collapse of the Fianna Fáil-Green coalition. For example, in 2010 the Green ministers held a press conference placing a time limit on their participation in cabinet, effectively indicating a loss of confidence in government but without resigning. Subsequently, two Fianna Fáil ministers effectively signalled a loss of confidence in the Taoiseach by indicating they had voted “no confidence” in him as party leader.
Political reality
In theory, we might defend the traditional principle of collective responsibility as a cornerstone of accountable, democratic government. If the cabinet does not "meet and act" as a collective authority, as per the constitutional wording, it cannot effectively be held to account. But that would presuppose a somewhat outdated and unrealistic view of the cabinet itself as being the single and authoritative locus of executive power in the State. Whatever the abstract constitutional ideal, the political reality is somewhat different: that of power having increasingly migrated away from the formal constitutional structures to non-political and non-accountable agencies – both within and outside the State. Therefore, the constitutional principle is fictitious in two distinct senses. It is fictitious because it supposes that suppression of ministerial conflict and dissent can be achieved and that it can uphold the authority of government. But it is also tenuous because it imagines that executive power is really located collectively in government in the first instance.
Eoin Daly is a law lecturer at NUI Galway