Taoiseach & Tánaiste
The Taoiseach’s duties under the Constitution include the nomination of Ministers, the acceptance of resignation, the nomination of persons to the Seanad and the notification to the President of the removal of certain officers of State, e.g. the Attorney General, Comptroller and Auditor General and judges.
He advises the President in relation to the dissolution and summonsing of the Dáil. He is obliged to keep the President informed on matters of domestic and international policy. The Taoiseach also has a number of other miscellaneous roles under the Constitution.
The Tánaiste is the Deputy Prime Minister of Ireland. The Tánaiste deputises for the Taoiseach when the Taoiseach is temporarily absent. The Tánaiste takes the place of the Taoiseach who is permanently incapacitated or dies, until another Taoiseach is appointed
The Tánaiste is a member of the government and is generally a Minister. The Tánaiste must be a member of the Dáil and ranks next after the Taoiseach in precedence.
There is no requirement that there be a Department of the Taoiseach or a Department of the Tánaiste. There has been a Department of the Taoiseach for many years dealing with certain core functions but having wide administrative functions to the same extent as other departments of state. In coalition governments, a Department of the Tánaiste has been created.
Ministers of State
Ministers of State may be appointed under the Ministers and Secretaries Act. There is a fixed maximum number. The number had been increased significantly but was reduced following the financial crisis.
A Minister of State is delegated certain functions of the principal government Minister by statutory instrument. Large areas of competence are typically assigned to a Minister of State.
The Minister of State remains subject to the general power and superintendence of the Government Minister. These may be subject to conditions in the delegation. The delegation does not remove or derogate from the responsibility of the Government Minister in relation to the performance of statutory powers or functions thereby delegated.
Government and Dáil
The Government is collectively responsible to the Dáil. It must meet and act as a collective authority.
Under the Houses of the Oireachtas (Inquiries, Privileges and Protections) Act 2013, a committee of the Dáil may conduct an enquiry into any matter relevant to holding the government to account. It may make findings of fact which impact upon the name and reputation of a government Minister and also the Secretary General of a department or Chief Executive Officer of public bodies concerned. A committee may not make civil or criminal findings.
Although the Constitution states that the government as a whole is accountable to the Dáil, in effect, each Minister is politically accountable to the Dáil in respect of his department. Government Ministers may be questioned in relation to matters and affairs connected with their department or matters of administration for which they are officially responsible. See generally the sections on government departments and departments of state.
A large number of agencies have been created in modern times. Large elements of governmental functions have therefore been in effect outsourced. These are in addition to the traditional major bodies of the State.
In most such cases, the Chief Executive of the body or another appropriate functionary is accountable to the Dáil committees in respect of the entity concerned.
Military Power and Gardaí
The Oireachtas is the only body in the State which may raise and maintain military or Armed Forces. No military or Armed Force other than such a force raised or maintained by the Oireachtas shall be raised or maintained for any purpose.
The supreme command of the Defence Forces is vested in the President. All commissioned officers of the Defence Forces receive their commissions from the President. The President’s command of the Defence Forces is nominal and is exercisable by the government through the Minister for Defence.
The Commissioner and certain other high ranks of An Garda Síochána are appointed by the government and may be removed from office for a stated reason. There have been a number of cases concerning the removal of Commissioners from office. The Minister for Justice makes regulations relating to most aspects of the functioning of An Garda Síochána.
The Civil Service manage and execute government policy through the various departments of State. There are now numerous other bodies established by law that are answerable to government departments. See generally the sections on government departments and the various established bodies.
The head of each department is the Secretary-General and has authority of, responsibility and accountability for the department. He is responsible for implementing government policies, advising the Minister and preparing strategy statements and progress reports. There is a duty to ensure that these functions are carried out in a cost-effective manner. The responsibilities are subject to provisions of law, government direction and policy and determinations on matters of policy by the Minister.
The Secretary-General is accountable to the Minister, who may issue instructions. The Secretary-General may be required to appear before a Committee of either House of the Oireachtas in the context of review for various matters, including a review of departmental strategy statements.
Employment in the Civil Service is governed by the Civil Service Commissioners Act. This was established as an independent body to make appointments to civil service offices. Every civil servant holds office at the will and pleasure of the government.
Notwithstanding the theoretical lack of security, any removal of a civil servant is subject to requirements for fair procedures. Historically, civil servants were rarely removed from office. This position has changed, at least in theory, over the last twenty years and the Unfair Dismissals Act has been extended to the members of the Civil Service.
Codes and standards of behaviour have been prepared under the Standards in Public Office Act and published by the Commission. They are incorporated in the terms of employment of civil servants. They set out restrictions on civil servants and the standards expected of them.
Most civil servants above the lower grades are precluded from participation in politics or political activity. They may not engage in public debate, contribute to, support or be a candidate in elections. They may not contribute to the media, other than where required by their duties. This applies to all civil servants other than:
- those in crafts, industrial or manual grades and grades below clerical grades;
- those clerical grades and non-industrial grades with a salary maximum below or equal to the clerical officer maximum with the permission of the department to engage in politics;
- special advisors to Ministers/Ministers for States; and
- persons permitted by terms of their appointment.
Local government is recognised in the Constitution. Its function is to provide a forum for the democratic representation of local communities, to exercise at local levels powers conferred by law and to promote the interests of such communities. Ireland has 31 local authorities.
Elections for local authorities should be held at least every five years. Every citizen who has the right to vote in a Dáil election also has the right to vote in a local authority election. Casual vacancies are to be filled by co-option by the authority concerned. The co-opted member holds the seat until the next election.
Each local authority is a corporate body. See generally the sections on local government. Local authorities are answerable both from a financial and practical perspective to the Department of Local Government and the Environment in respect of many aspects of their functions. The central government controls much of local government finance and prescribes a range of matters to be dealt with by local authorities.
The executive power of the State is exercised through a range of agencies, boards, statutory corporations and companies established under law. This is part of an increasing trend of outsourcing government functions from central departments to agencies. The trend is particularly noticeable in the United Kingdom.
State Bound by Law
Historically, legislation did not bind the State. The State was entitled to absolute privilege as successor to the Crown. In the famous case of Byrne v Ireland in the early 1970s, the Supreme Court found this historical immunity to be inconsistent with the Constitution. The scope of the prerogative has since been progressively curtailed.
It was decided that the administration of justice was committed solely to the judiciary by the exercise of their powers in the court set up under the Constitution. The power to compel evidence, including the production of documents, is an inherent part of the judicial power of the State.
Where, in relation to the exercise of the executive powers of the state, there is a conflict between an aspect of the public interest involved in the production of evidence and public interest in the confidentiality or exemption from its production, the judicial power is to decide which public interest shall prevail.
The duty of the judicial power to make the decision does not mean that it affords any priority to or holds a preference for the production of evidence over other public interests such as security of the State or efficient functions of the executive organ or government. There is no obligation under the judicial power to examine any particular document before deciding it is exempt from production.
It can and will in many instances uphold the claim of privilege in respect of documents on the basis of merely a description of their nature and contents. However, there are no generally applicable classes or categories of documents which are exempted from production by reason of the rank in the public service of the person creating them or the position of the individual or bodies intending to use them.
Some functions of the Executive are part of its inherent functions as Executive. Many of these are equivalent to those exercised under the so-called Crown prerogative. Over time, some of these have been placed on statute, e.g. passports. Others derive from the control of public funds.