The High Court has reserved its judgments in two similar cases brought by Opposition TDs alleging the attendance of super-junior ministers at meetings of Government is unconstitutional.
The cases brought by Sinn Féin TD Pa Daly and People Before Profit-Solidarity TD Paul Murphy point to article 28 of Bunreacht na hÉireann, which limits the number of Government members to 15 – including the taoiseach – and provides that they meet and act as a collective authority.
Senior Government ministers are appointed by the President of Ireland on the advice of the taoiseach and with the prior approval of Dáil Éireann.
“Ministers of State attending Cabinet”, or super-junior ministers, are appointed by the Government on the nomination of the taoiseach. Super-junior ministers participate at Government meetings but do not vote.
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At present there are four super-junior Ministers attending Cabinet: Fianna Fáil’s Mary Butler (who is also chief whip), Hildegarde Naughton of Fine Gael, and Noel Grealish and Seán Canney of the Regional Independent Group. They are not parties to the cases.
Following the conclusion of submissions in both cases on Friday, High Court president Mr Justice David Barniville, on behalf of the three-judge divisional court, reserved judgment in the actions.
Closing the State’s defence to Mr Murphy’s action, Catherine Donnelly SC said aspects of the case were uncertain and incoherent, and said the case “rests entirely” on a series of “obscure distinctions”.
One of these distinctions, Ms Donnelly said, was drawn between the attendance of the chief whip, attorney general and secretary general at Cabinet, and the attendance of ministers of state.
The first group, Mr Murphy’s side contends, assists in Government deliberations in accordance with the Constitution, while the ministers of state participate in deliberations in breach of the Constitution, Ms Donnelly said.
Ms Donnelly submitted this was an “unsustainable distinction”.
Counsel also said Mr Murphy’s side was asking the court to distinguish between political influence exercised by ministers of state outside the Cabinet room, and same exercised within the Cabinet room.
Political influence outside the Cabinet room, however far-reaching, is constitutional, but inside the room, political influence is unconstitutional, according to Mr Murphy’s side, Ms Donnelly said.
Ms Donnelly said the court was being asked by Mr Murphy to make a ruling based on the subjective experience of how a Minister of State “might feel”, referencing former super-junior minister Finian McGrath’s evidence in the case.
Mr McGrath, who served as Minister of State for Disability in 2016-2020, told the court this week he was treated as a “full minister” while attending Government meetings and that he on occasion succeeded in blocking or amending Cabinet decisions.
Ms Donnelly said the case turned on whether or not participation in Government meetings outweighed other clear, uncontested and definitive distinctions between super-junior ministers and senior Government ministers.
Closing Mr Murphy’s case, John Rogers SC, appearing with barristers Paul Gunning and Mollie Higgins and instructed by KM solicitors, said super-junior ministers’ participation in the “unit” of Government “offends” the Constitution.
Mr Rogers said there was clear evidence of active participation by ministers of state in the government of taoisigh Enda Kenny and Leo Varadkar in 2016-2020. He said it was their case that this practice was continuing in the current Government.
He rejected Ms Donnelly’s labelling of Mr McGrath’s evidence as subjective, asserting Mr McGrath engaged in “participation of a high order” during his time as a super-junior minister.
Mr Rogers said John Callinan, the secretary general to the Government, was unable to point to an authority stipulating super-junior ministers attend Government. “There is no source, authority – the only authority for the Government is in article 28,” he said.
Attorney General Rossa Fanning led the State’s defence of the cases.
Mr Daly’s case was presented by Feichín McDonagh SC, appearing with barristers Brendan Hennessy and John Biggins and instructed by Rogers Law Solicitors.
