The High Court has dismissed challenges brought by two Opposition TDs claiming that attendance of “super junior” ministers at meetings of the Government was unconstitutional.
Sinn Féin’s Pa Daly and People Before Profit-Solidarity TD Paul Murphy brought separate but similar challenges, arguing that article 28 of Bunreacht na hÉireann limits the number of government members to 15, and provides they meet and act as a collective authority.
A three-judge High Court, comprising the court president Mr Justice David Barniville, Ms Justice Siobhán Phelan and Mr Justice Conleth Bradley, on Friday held that no provision of the Constitution is breached by the attendance and participation of the junior ministers at meetings of the Cabinet.
The judges delivered separate judgments in the cases, but reached the same conclusion.
The court held that the Constitution does not restrict attendances at Cabinet meetings to the 15 members of Government.
It also found that decisions taken by Cabinet are ultimately controlled by the 15 members and the attendance of super junior ministers does not invalidate such decisions.
An appeal directly to the Supreme Court over the outcome is expected.
Attorney General Rossa Fanning, who led the State’s defence, described Mr Daly’s proceedings as a “political challenge to the integrity of the Government”. Because there is no constitutional regulation of who attends Cabinet meetings, that was an issue exclusively for the Government, he argued.
Senior government ministers are appointed by the President of Ireland on the advice of the taoiseach and with 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 in Government meetings, but do not vote.
Four super junior ministers are currently attending Cabinet: Fianna Fáil’s Mary Butler (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 actions.
In their judgment, the judges said that a super junior minister is appointed by government decision, on the Taoiseach’s nomination and without the need for Dáil approval, in a “fundamental difference” to the appointment of ministers, or members of government.
As only 15 TDs – that is, the 15 Ministers – were appointed to the present Government by the President, it follows that the relevant super junior ministers are not members of the Government, and therefore, there has been no breach in the numerical restriction imposed by Article 28 of the Constitution, the court held.
They found that the obligation of Cabinet confidentiality applied generally to those attending meetings, not just the 15 members of Government.
In Mr Murphy’s case, the court made several findings on decision-making at Cabinet.
It said Mr Murphy’s side accepted that, in the event of a vote on a Cabinet decision, only the 15 members of Government would participate.
“The attendance and participation by the super junior ministers at meetings of the Government, therefore, does not undermine the decisions taken by the members of the Government, constitutionally appointed,” the court said.
This is borne out in other findings, the court held.
This includes a finding that the preparation of Cabinet memos – proposals for government decisions to be voted on by Cabinet – is controlled solely by the 15 members of Government.
The participation at Cabinet of individuals other than Government members – including the chief whip, the secretary general, and the attorney general – does not invalidate any decision taken by the 15 members of Government, the court held.
Both Mr Murphy and Mr Daly were in attendance at the Four Courts for the delivery of the judgments, as was Sinn Féin leader Mary Lou McDonald.
Outside court, Ms McDonald said: “We knew at the time of the formation of this Government, when the grubby deal was struck with Michael Lowry and his assortment of Independents, and when we saw there was a record number of super-junior ministers appointed, that we had to seek clarity on this question.”
They will consider the judgments over Christmas and decide whether to take further action, she added.
Mr Murphy said the central issue in the “very important” case was whether the constitutional rule limiting government to 15 members can be “got around” by creating the concept of super-junior ministers.
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