The Resilience of Executive Dominance in Westminster Systems: Ireland 2016-2019

Public Law (2021) 355-374.

28 Pages Posted: 28 Jul 2020 Last revised: 9 Jun 2021

See all articles by David Kenny

David Kenny

Trinity College Dublin School of Law

Conor Casey

affiliation not provided to SSRN; University of Liverpool School of Law & Social Justice

Date Written: April 2, 2020

Abstract

The imperfect separation of powers in Westminster systems has produced a curious contradiction: legislative supremacy in theory eclipsed by executive control in practice. This phenomenon can be termed executive dominance, and in extreme instances can reduce the legislature to something akin to a reactive rubber stamp, approving whatever the executive proposes with little to no autonomous power. This dominance sits uneasily with articulated constitutional principles which emphasize legislative predominance, but has largely been considered a matter of realpolitik, a function of executives having strong party discipline over a legislative majority. However, recent trends suggest that executive dominance may be a more resilient and entrenched phenomenon than was previously supposed. In several Westminster systems, the executive has retained remarkable control of the legislative process in spite of not having a legislative majority. Even minority governments have proven capable of stifling the legislature in the performance of its functions.

In this article, we use Ireland’s recent experience of minority government as a case study. Several longstanding elements of parliamentary and government process were used by the executive to create a form of legislative veto over private members legislation and leave it with substantial control over the legislative process. Essentially, executive dominance remained, in spite of minority government and other factors which might have been expected to reduce it. We argue this experience shows that executive dominance is resilient because it is a function of political and constitutional culture just as much as formal rules. This culture is a set of beliefs and assumptions about politics and its operation which undergirds and shapes our understanding of the rules and how constitutional actors ought to function. Executive dominance appears to be cultural, an assumption that underlies parliamentary democracy and its institutions and animates the practices and interpretations of rules that entrench this phenomenon. This serves an important lesson to anyone who would seek to reform parliamentary practices to empower the legislature or challenge executive dominance.

Keywords: separation of powers, executive dominance, executive, legislature, Westminster system, parliament, money messages, money procedures, attorney general, legal advice, constitutional advice

Suggested Citation

Kenny, David and Casey, Conor, The Resilience of Executive Dominance in Westminster Systems: Ireland 2016-2019 (April 2, 2020). Public Law (2021) 355-374., Available at SSRN: https://ssrn.com/abstract=3641538

David Kenny (Contact Author)

Trinity College Dublin School of Law ( email )

College Green
Dublin 2
Ireland

Conor Casey

affiliation not provided to SSRN

University of Liverpool School of Law & Social Justice ( email )

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