'That creature simply does not exist': Super junior ministers challenge opens at High Court
Pa Daly outside the Four Courts where he is bringing a constitutional challenge against the Government in the High court regarding the appointment of 'super junior' ministers. Picture: Collins Courts
Pa Daly’s High Court action challenging the constitutionality of super junior minister appointments has opened before a three-judge division of the High Court.
Three judges, including the High Court president Mr Justice David Barniville, are hearing the case, brought by the Kerry Sinn Féin TD which is expected to run until Wednesday.
A similar case, brought by People Before Profit-Solidarity TD Paul Murphy, will open following the conclusion of Mr Daly’s case.
Sinn Féin leader Mary Lou McDonald and Sinn Féin finance spokesperson Pearse Doherty were present in court this morning as well as Mr Daly himself.
“Ministers of State attending Cabinet”, or super junior ministers, are appointed by the Government on the nomination of the Taoiseach. They participate at Government meetings but do not vote.
Opening Mr Daly’s case on Monday, Feichín McDonagh SC submitted that there is no legal basis for the appointment for “Ministers of State who regularly attend Cabinet”. “That creature simply does not exist under legislation”.
The basis for the appointment of super junior ministers is the same function under which ministers of state are appointed, he said.
“Their entitlement to regularly attend meetings of the Government is dependent on the Taoiseach's decision, not upon any step the Government has taken,” Mr McDonagh said.
Further to this, Mr McDonagh said there was no legislation underpinning an office of Minister of State regularly attending Cabinet. He said an allowance paid to super junior ministers “is neither here nor there”, when addressing the legal issues raised by their case.
Mr McDonagh opened to the court Article 28 of the Constitution, which limits the number of government members to 15, including the Taoiseach. Under this article, these members meet and act as a collective authority, he noted.
Counsel said “government”, under this article, should be understood to mean the 15 ministers (or less) only.
Under the current scenario, there are “extra individuals” – super junior ministers – who are present in the Cabinet room taking a full role in the formulation of Government policy, Mr McDonagh said. These individuals act with the 15 senior ministers as a collective authority, he said.
Every decision taken by the Government with these extra individuals in attendance has been formulated in breach of Article 28 of the Constitution, Mr McDonagh said.
He said their case is not challenging a particular Government decision based on the legal points raised – but some other litigant could, which is a danger and possible problem, Mr McDonagh said.
Their case is trying to ensure the Government complies with the Constitution, Mr McDonagh said.
Mr McDonagh also submitted that under the current scenario, there is no limit to the amount of people that can attend meetings of Government. Further to this, those invited to attend Cabinet by the Taoiseach do not necessarily have to be politicians.
“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.”
Mr McDonagh said their case was careful to draw a distinction between meetings of the Government, when Government policy is formulated and decisions taken, and meetings with the Government, “which anyone can do if invited by the Taoiseach”.
Counsel noted a lengthy document submitted to the court by the State parties, outlining who has attended meetings with the Government over the last 30 years.
He said the Government has met and been briefed by a variety of individuals on foot of issues like Brexit and the financial crisis of 2008, but “they don’t attend a meeting of the Government, within the meaning of the Constitution”.
He said these individuals do not “act collectively” with the Government – unlike super junior ministers.
Counsel said the Attorney General attends Cabinet meetings to provide legal advice, and the secretary general takes meeting minutes, but they do not act collectively with the members of Government.
Mr McDonagh also referred to the confidentiality of Cabinet meetings, set out under Article 28. He said the confidentiality of Cabinet meetings is breached by virtue of super junior ministers’ participation in the meeting.
The communication of discussions at a Cabinet meeting to anyone outside the 15 presidentially-appointed ministers “offends Article 28”, Mr McDonagh said.
Mr McDonagh referenced a article penned by former taoiseach Leo Varadkar, who wrote that the Government is “hamstrung by our Constitution which limits the number of senior ministers to 15”.
In the article, Mr Varadkar said he, as taoiseach, “tried to get around the ‘rule of 15’ by creating three super junior ministers with real and clearly defined responsibilities”.
Counsel said that the difference between a super junior minister and a presidentially-appointed minister is so thin and translucent that Mr Varadkar “doesn’t even appear to be aware of it”.
The case continues.
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