The Government accepts super-junior Ministers are involved in decision-making at Cabinet meetings, despite there being no constitutional basis for this involvement, the High Court has been told.
Eileen Barrington SC made the argument at the hearing of Sinn Féin TD Pa Daly’s action, which claims the appointment of Ministers of State attending Cabinet – or super-junior Ministers – is unconstitutional. The action is against the Taoiseach, the Government, Ireland and the Attorney General.
The Attorney General, who is leading the State parties’ defence of the case, told the court on Tuesday Mr Daly’s proceedings are a “political challenge to the integrity of the Government”.
Rossa Fanning previously submitted that Mr Daly’s case seeks the judiciary’s “unprecedented” intervention in the inner workings of the Government’s executive branch.
RM Block
Super-junior ministers are appointed by the government on the nomination of the taoiseach. They participate at government meetings but do not vote.
Senior government ministers are appointed by the President of Ireland on the advice of the taoiseach and with the prior approval of Dáil Éireann.
At present, there are four super-junior Ministers attending Cabinet: Fianna Fáil’s Mary Butler, Hildegarde Naughton of Fine Gael and Noel Grealish and Seán Canney of the Regional Independent group. They are not parties to the case.
Mr Daly’s case points to article 28 of the Constitution, which limits the number of government members to 15, including the taoiseach, and provides that they meet and act as a collective authority.
On Tuesday, Ms Barrington, for Mr Daly, said article 28 outlines who can attend meetings of government, what their role is and how they should act.
She said their case is that super-junior ministers are not supposed to be at meetings of government, because the Constitution doesn’t provide for their attendance.
Deciding what article 28 means is the “real issue” of this case, Ms Barrington said. She said that if the court accepted their interpretation of the article, their case must succeed.
She said the Attorney General accepted super-junior Ministers are involved in discussion and decision-making at Government meetings. “That’s the key fact. They’re involved in the drive to consensus. And our case is a simple one – they shouldn’t be doing that,” she said.
Ms Barrington said meetings of government were the “final, vital executive act of the State, governed and circumscribed by the Constitution itself”.
On Monday, the Attorney General submitted that because there is no constitutional regulation of who attends cabinet meetings, who attends is a matter exclusively for the government itself.
Mr Fanning said Mr Daly’s case wrongly conflated attending meetings of cabinet with being a senior government minister.
Mr Fanning also submitted that cabinet meetings are only one element of government decision-making, and cannot be looked at artificially in isolation of the other parts of that process.
On Tuesday, Mr Fanning reiterated his side’s contention that Mr Daly’s case was politically motivated.
Mr Fanning said Mr Daly’s case was seeking the courts’ engagement in an “extraordinary incursion in the autonomy and independence of the executive branch” by regulating who attends cabinet meetings.
“There is no way to characterise these proceedings other than a political challenge to the integrity of the Government from the very outset of its existence,” Mr Fanning said.
Mr Fanning said the case should not be decided on hypothetical scenarios put forward by Mr Daly’s side – rather, the case should be decided on facts. In response, Ms Barrington said their side was entitled to bring arguments to their logical end points.
Feichín McDonagh SC, for Mr Daly, on Monday submitted that under the current scenario there is no limit to the number of people who can attend meetings of government. Further to this, those invited to attend cabinet by the taoiseach do not necessarily have to be politicians, he said.
“You could have 10 lay people, or prominent businessmen or women ... or anyone at all,” Mr McDonagh submitted. “That is the consequence of the scenario we’re in.”
In response, Mr Fanning noted the number of people attending cabinet has grown from 16 to 19 since 1994. He said this was not an “apocalyptic level” of growth in the size of government meetings.
The case, sitting before a three-judge divisional court, continues.
A similar case, brought by People Before Profit-Solidarity TD Paul Murphy, will open following the conclusion of Mr Daly’s case.
