WHETHER OR NOT Fine Gael, Fianna Fáil and the Green Party’s programme for government will pass has been on the minds of many over the past week. 

By the time votes are counted on Friday, it will be 134 days since the general election took place, compared to the 63 days it took to reach agreement after the 2016 general election.

But what will happen if one or more of the party votes fail? While the first concern will be how the next government can be formed and if a new election will be needed, there are other pressing issues too. 

According to Professor Gary Murphy of DCU’s School of Law and Government, the immediate aftermath of the deal not passing is complicated due to two pieces of legislation which need to be renewed by Monday. 

These laws are the Offences Against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009. 

The Offences Against the State Act contain a suite of anti-terrorism provisions, with the Criminal Justice Act containing measures to combat organised crime. Both of these acts allow the Special Criminal Court to deal with those offences.

The two pieces of legislation were debated today in the Dáil, with a proceedural motion to extend them for 12 months. The motion was passed with 32 in favour, three against and two abstentions.

While the legislation has now passed through the Dáil, it won’t be possible to move it through the Seanád without the 11 senators that have to be nominated by the Taoiseach.

Currently, Leo Varadkar is unable to nominate these senators, as he was not reelected as Taoiseach after the February general election, meaning the Seanad does not have all of its members. 

Due to this impasse, the Seanád cannot sit.

One potential solution is to have the Dáil temporarily nominate a Taoiseach who can appoint 11 senators. Speaking on RTÉ’s This Week, Green Party leader Eamon Ryan said the idea hadn’t been discussed between the three parties.

“That’s my best political guess, but it is only a guess”, said Ryan when asked if that would be the solution if the Programme for Government doesn’t pass.

Murphy said that in normal circumstances, the proposal would be “ludicrous” but admits that it’s no longer normal circumstances.

“Fine Gael clearly see this legislation as being tremendously important, as do Fianna Fáil,” said Murphy.

A group of Senators, including Ivana Bacik and Micheal McDowell, are currently taking a case in the High Court to challenge whether or not the Seanád is able to sit without the 11 nominees.

Murphy says that if that passes through the court and senators can take their seats, a rush to form a government by Monday would be eased. 

If the legislation can be renewed, the caretaker government would be able to continue on until an alternative government is formed or until a general election takes place.

Another election (probably) 

With this, Murphy believes the most likely outcome will be an election if any party cannot pass the Programme for Government.

There is no limit within the constitution surrounding the amount of time it takes to form a government, with the Dáil only able to be dissolved by the President on the advice of the Taoiseach.

According to Murphy, an election could be held relatively soon, and he suggested that one could take place as early as September. 

The act of voting in an election would likely remain the same, as long as social distancing was upheld in all polling stations.

If you look at where people vote, in gym halls and school halls and if you get your social distancing in, your hand sanitiser, you know, the way we go to supermarkets and the like, that would work.

However, Murphy does see the election count functioning differently than how it has in the past. The way that elections are observed would change as tallies would no longer be able to take place due to social distancing. 

I think the issue would be how you would count the votes and who would observe them. Tallymen? I mean, that would have to go clearly. There’d be no social distancing.

An example of this could be how the Seanád election took place at the end of March. Access to the count centre was extremely limited, with only those who were entitled by law could attend. 

There does remain a chance that President Michael D Higgins could refuse to dissolve the Dáil, which would stop an election from happening. 

Within Article 13 of the Irish Constitution, the President does have the ability to refuse to dissolve the Dáil, and can instead send the Taoiseach back to try again to form a government. 

A scenario like this reportedly took place in 1994, after the collapse of the Fianna Fáil-Labour coalition. While there wasn’t a formal vote that ended the coalition, Labour instead walked and joined up with Fine Gael and Democratic Left to form what became known as the Rainbow Coalition.

“It was relatively easy for the then-President Mary Robinson to let it be known that she wouldn’t dissolve the Dáil if Albert Reynolds requested it because the numbers from the ’92 election allowed an alternative government,” says Murphy. 

Murphy does note, however, that a readymade alternative government doesn’t necessarily exist in this case.

Sinn Féin

If the President were to refuse to dissolve the Dáil, there are still options available, however unlikely.

With at least two of the three biggest parties needed to reach a majority, Fianna Fáil could seek to speak with Sinn Féin to try and form a government alongside a smaller party. 

Fine Gael also have the option to speak with Sinn Féin, but according to Murphy there is “virtually no chance” of this happening. 

Taoiseach Leo Varadkar said on Tuesday that he has offered to meet Sinn Féin leader Mary Lou McDonald, but only to tell her why Fine Gael would not go into government with her party. 

One reason for this is due to the new nature of Irish politics and how it has begun to shift to the left. With Fine Gael occupying the right, a coalition between the two parties wouldn’t work.

“What would Fine Gael stand for if they went into coalition with Sinn Féin?”

The question of Fianna Fáil speaking with Sinn Féin still remains though.

In February, Micheál Martin was not given a mandate to speak with Sinn Féin by the Fianna Fáil parliamentary party.

If Martin returns to his parliamentary party and attempts to get another mandate and cannot, an election is certain, says Murphy.

Despite the possibility that President Higgins could refuse to dissolve the Dáil, that can only last for so long according to Murphy. He believes that if the Programme for Government doesn’t pass, an election may be the only plausible option.

“You could certainly have one in September, if the government can drift through July and August. If it’s gone through January to June, there is no reason why it can’t go into July and August.”