The emphatic nature of the rejection of challenges to the constitutionality of super-junior ministers’ attendance and participation at government meetings was greeted with some surprise by constitutional lawyers.
While several anticipated the challenges would be dismissed by the High Court, the clear-cut terms of that dismissal was not expected.
Another aspect of the judgments of much interest was what David Kenny, professor in law at Trinity College Dublin described as the three-judge court’s “permissive understanding” of the concept of Cabinet confidentiality.
With the judgments on the two cases running to almost 300 pages, it is unsurprising that Sinn Féin TD Pa Daly and People Before Profit-Solidarity TD Paul Murphy both said they wanted to consult their legal teams over Christmas before deciding whether to appeal.
Given the significant issues of constitutional law raised and the potential implications for the operation of government, it is expected, if a decision is taken to appeal, one directly to the Supreme Court will be sought to bring final clarity.
The High Court rejected the core claim that the constitutional limit of 15 members of government was circumvented by the appointment of super junior ministers, a practice dating back to the Rainbow government of Fine Gael, Labour and Democratic Left in 1994.
Opting for what it described as a “harmonious and holistic” interpretation of the Constitution as a whole, the court found no such circumvention.
The “striking” thing about the judgments was “how emphatic they are”, said Tom Hickey, associate professor of constitutional law at Dublin City University – the judges effectively concluded both TDs had “over-read” the relevant provisions of the Constitution.
The constitutional provision central to their cases – Article 28.1 – says the government “shall consist of … no more than 15 members”.
There are only 15 members of Government, those who received their seals of office from the President on their appointment, said Hickey.
“And Article 28 says nothing about who can or cannot attend meetings of the Government. Indeed, the Constitution is entirely ‘silent’ on that matter. So what is blocking the super juniors from attending, effectively at the invitation of the Taoiseach?”
Historically, people other than members of the government have attended those meetings, including the attorney general, the secretary to the government, and invited guests, he said. “So this is essentially no different, the court essentially concludes. And they do so in a manner that suggests it wasn’t really a close-run thing.”
The judgments, he said, also pointed to evidence about important differences, “legal, factual, and status-based”, between the 15 government ministers and the super-juniors, including concerning the bringing of a memorandum to cabinet. “These differences affect how they participate in discussions, and inform decision-making.”
Another important theme, Hickey added, was the applicants’ failure to show that the involvement of super-juniors undermined the collective responsibility of the 15 members of the government to the Dáil.
Prof Kenny focused on the court’s approach to arguments that the involvement of super-juniors at government meetings posed a risk to Cabinet confidentiality.
There have been few statements from the courts in relation to cabinet confidentiality and the court’s statement that cabinet confidentiality essentially applies to anyone made privy to cabinet meetings is “important” and “quite significant”, he said.
The court, he noted, said the purpose of cabinet confidentiality is to prevent the government position being undermined and risk the separation of powers. It found no risk to that by the government choosing to invite super-juniors to its meetings because the confidentiality obligation applies to everyone attending those meetings.