Phantom Taoiseach

Phantom Taoiseach is a term coined by Professor John M. Kelly, a former Fine Gael TD, Chief Whip, Attorney-General of Ireland and the then Professor of Constitutional Law in University College Dublin, to describe the status of a Taoiseach who, although he has lost the support of a majority in Dáil Éireann, has had his resulting request for a Dáil dissolution refused by the President of Ireland, and who therefore remains in office in a caretaker capacity.

The Irish constitution, Bunreacht na hÉireann, in Article 28.11. states that " ... the Taoiseach and the other members of the Government shall continue to carry on their duties until their successors shall have been appointed" Kelly contended that it was not clear whether the Government's duties in such an event were maximalist (ie, would enable them to create and implement new policies) or minimalist (ie, just taking all unavoidable decisions while leaving matters that required shifts in policy, or the creation of new policy to the incoming ministers). While Article 28.11 refers to duties it does not state powers, which some legal experts suggest means that a government must confine itself to fulfilling the minimalist duties of government necessary to keep government functioning until a new taoiseach and government takes office.

In particular Kelly focused on the status of a caretaker taoiseach. Kelly pointed out an apparent inconsistency and illogicality in the constitution, following on a president's decision to refuse the Taoiseach a dissolution. Under Article 28.10 the Taoiseach must resign. Kelly asked whether, should the Dáil be unable to nominate a new taoiseach a resigned taoiseach could request a second dissolution. Given that the Dáil's inability to agree on a new taoiseach would leave little choice but for the President to grant a dissolution. Kelly contended that a perverse situation would have been created whereby, while his first dissolution request following his Dáil defeat the Taoiseach would not have had an automatic right to get the dissolution, on the second attempt, while still lacking Dáil support and with an even lower status as a resigned taoiseach, the Taoiseach could be presumed to have a de facto automatic right to a dissolution. Kelly viewed this as "perverse" and described the confusing status of the caretaker taoiseach as meaning that he would be a "phantom taoiseach".

Others suggested that whereas a taoiseach defeated would have the presumption of having his dissolution request granted, with only in exceptional circumstances it being refused, a resigned taoiseach should face the presumption that the request will be denied except in an extreme case where it has been unambiguously demonstrated that the Dáil is utterly unable to agree to nominate a replacement taoiseach, meaning that a general election is the only option.

Kelly coined the term in 1989 when, for the first time ever, the Dáil failed on its first attempt to nominate a taoiseach, forcing the then-taoiseach, Charles Haughey in controversial circumstances to resign. (Haughey initially claimed that "time is not of the essence" and that he did not have to submit his resignation to President Hillery. The opposition and members of the cabinet disagreed, and Haughey, fearing it would look as though he was staging a coup, reversed his decision, going immediately to Áras an Uachtaráin to resign.) When Kelly coined the term, it was unclear whether the Dáil would be able to agree on a new taoiseach, and speculation was mounting as to what would happen in the resulting and unprecedented stalemate. In reality Haughey was subsequently renominated for appointment in a subsequent Dáil vote some weeks later.

Kelly used the term subsequently in his academic writings, notably his textbook on the Irish constitution, as did some other writers, but with Kelly's death in 1991 and the ability of the Dáil to nominate new taoisigh subsequently the term fell into general abeyance. It is however occasionally still used by academics and journalists when discussing the issue of what powers a resigned taoiseach actually has.

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