THE IRISH CONSTITUTION
V
THE EXECUTIVE POWER
From The Irish Constitution Explained by Darrell Figgis 1922
I have likened a Constitution to a pyramid, the base of which is the People, and the apex the Executive Authority. In all pyramids, it is the apex that first catches the eye, not the base; yet it is from the base upward that democratic constitutions are built. Usually it happens in most countries that the Executive masters the Law-making body, and that the Law-making body in turn masters the People. It is therefore necessary to remember, and to emphasise, that the true order is the other way about, the People being the master of the Law-making body, and the Law-making body the master of the Executive. In the degree in which that true order is asserted, and observed, the health of the State is preserved. In the degree in which it is neglected, or frustrated, there is suspicion, irritation, discontent. And as it is always the Executive which tends naturally, where it does not intrigue deliberately, to upset that order, by gathering all power into its hands, obviously the provisions respecting the formation and maintenance of Executive Power are the most critical part of every Constitution.
It was a wise man, and an experienced, who said that it did not matter to him who had the making of laws, so long as he had the administration of them. "For forms of government let fools contest," said the poet; "That which is best administered is best." And as the administration of a State is reposed in the care of the Executive Power, for the most part beyond the sight of the Law-making Assembly of the people, it is essential that the Constitution should provide that the Executive should at all times, and with the utmost flexibility, lie in the control of the Legislature. Otherwise, whatever safeguards may be provided that laws carry the consent of the people, the people will in the end find themselves baffled, unable to track into the thicket of secret decisions the will that they have elsewhere endeavoured plainly to express.
It is therefore the plain duty of every Constitution to keep the Executive simple and flexible, responsive always to the will of the Legislature, as the Legislature should always be responsive to the will of the people. Crises will arise in the history of every nation when the powers of the Executive require to be strengthened; and at such times those powers will be readily conceded. But it is the Legislature and the people which must decide; and the Constitution must leave them free to do so. It is no part of the duty of a Constitution to provide for a time of crisis, and to make that provision fixed and rigid for all later times, when circumstances will have completely changed.
All that it is the absolute duty of a Constitution to do is to state how the Executive shall be formed, and to define its responsibility to the Legislature. The rest may be left to the practice of the future. Certainly to indulge in experiments in a Constitution respecting so vital a part of it as the Executive (experiments unlike anything yet attempted in any Constitution in the world) is an extremely hazardous proceeding. Nor are such experiments necessary in a Constitution, since they may be tried in the course of ordinary legislation, and surrendered if they prove impracticable. It is one thing to experiment—which a Constitution should allow. It is another thing to be pledged to one's experiments for ever—which is what a Constitutional provision is intended to mean.
The experimental nature of the provisions for the Executive in the present draft of the Constitution is manifest.
They are unlike anything in any Constitution. They are quite unlike the provisions in the Swiss Constitution, from which the inspiration is supposed to be derived. Switzerland is a Confederation, consisting of twenty-two sovereign cantons, where only limited powers are conferred on the federal authorities. The twenty-two sovereign cantons differ widely in religion, language, habits and traditions. They are jealous of the federal authorities, and jealous of one another, and therefore insist that the Federal Council (which acts as the Executive), as well as the Federal Assembly, shall be representative directly of the languages, religions and traditions of different parts of the country. Certain of the larger towns and cantons, indeed, claim prescriptive rights to the appointment of members of the Federal Council. This Council, therefore, is appointed for the whole term of the Assembly by the two chambers of the Assembly sitting together, and are chosen by the two chambers, as the Constitution says, " from among all Swiss citizens eligible to the National Council." The members of the Council may speak, and propose motions, in both chambers, but they may not vote in either, for they form a separate institution outside the Assembly.
It is well to see what are the provisions for the Executive Power under the Swiss Constitution in order to note how widely the Executive in our draft differs from them. Good or bad, our draft stands or falls by itself, and cannot depend from the Swiss example, from which it differs both in itself and in the circumstance which it is designed to meet. The intention may be of the noblest; but intentions are only prophecies; and the Fundamental Law of a Constitution is scarcely the place to commit a whole people to a prophecy. The intention is to overcome party government, and is conceived at a time when parties are divided along lines that do not represent the economic issues that ordinarily influence the course of legislation. For parties, in so far as parties represent true economic issues, are a natural and inevitable medium for conducting the government of a country. Where parties do not represent such issues, but are held together by unnatural organisations, they do, it is true, obscure the orderly government of a country. The remedy is to be found, not in an enforced and arbitrary creation of an Executive, but in the right election of the Legislature, of which the Executive must be a reflection if the Legislature is to work harmoniously with it, and keep a constant control over it. To attempt by arbitrary provisions to create an Executive that does not accurately and at all times reflect the Legislature (on whatever party lines that Legislature be composed) is automatically to remove that Executive from the continuous control of the Legislature. And it is surely the essential business of a Constitution to insist that that control be emphasised, not diminished. Otherwise, whatever be the intention, the Executive will become irresponsible, government will fall into the hands of rulers who can only with difficulty be removed, and constant friction will ensue.
Such is the broader line of argument. In detail the Executive provisions of the present draft seem even less defensible. For authority is reposed in an Executive Council formed of two parts. Of twelve Ministers, it is stated, four must be members of the Chamber and eight must not be members—or, if they were members before, they cannot continue to be members, and must resign. It is true that on the motion of the President of the Council these four (who are members of the Chamber) may be increased to seven; but the draft makes it perfectly clear that according to the normal procedure under the Constitution the proportions are to be four and eight; and it is on the normal, not on the exceptional, procedure that attention must therefore necessarily be laid.
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.