Pa Daly: Why Sinn Féin is challenging the Government on super junior ministers

If we allow the lines to be blurred, we invite further erosion of the democratic checks and balances that are essential to our system of government and to our democracy, writes Pa Daly

President Michael D Higgins (centre), the Taoiseach Micheál Martin, Tánaiste Simon Harris and the new Cabinet receive their Seal of Office at a ceremony held in Aras an Uachtarain in January. File picture: Maxwell’s

This week I will bring a constitutional challenge against the Government in the High Court regarding the appointment of super junior ministers.

The case challenges what I believe is a deeply problematic and unconstitutional practice that has taken root in recent decades - the attendance and participation of so-called super junior ministers at meetings of the Government.

This case is a constitutional challenge aimed at protecting the integrity of our system of government under Bunreacht na hÉireann with which Fianna Fáil, Fine Gael and the Lowry-led Independents are playing fast and loose.

The Constitution is clear. Article 28.1 states that “the Government shall consist of not more than 15 members”. That is not a guideline, a suggestion, or an ideal. To me, this is a legal limit on the number who may be part of the Government. 

The practice of allowing super junior ministers to attend Cabinet meetings, contribute to discussions and access all Cabinet documentation, amounts, in effect, to treating them as full members of Cabinet. That is, in our view, in clear breach of the Constitution.

While super junior ministers do not have a formal vote at Cabinet, that argument is largely academic. As former Taoiseach Leo Varadkar himself acknowledged earlier this year, votes at Cabinet happen rarely, if at all. 

What matters is that super junior ministers are regularly present, bring memos for decision, and are deeply involved in the executive decision-making process. They are treated, in all meaningful respects, as equals to Cabinet ministers, without being bound by the same legal framework and without the constitutional permission to operate in that role.

This, we will argue, undermines the core principles of collective Cabinet responsibility and Cabinet confidentiality. The Constitution guarantees that the Government speaks with one voice and that its internal workings are conducted within a protected, confidential framework. 

This is necessary to ensure stability, coherence, and accountability. When individuals who are not legally members of the Government are present, that principle is eroded. Cabinet confidentiality is diluted, and the chain of collective responsibility becomes blurred.

Let’s be clear, this is not a historical anomaly. The attendance of a Minister of State at Cabinet first occurred in 1994 under the Rainbow Coalition. Every government since has perpetuated this arrangement. 

But that doesn’t make it right - nor does it make it legal, but we believe that it is time for the courts to adjudicate on the issue. We have reached a point now where four super junior ministers of State are incentivised, via public funds, to operate as Cabinet members in all but name.

I believe that this is incompatible with the Constitution. It effectively uses taxpayer money to encourage a practice that breaches the constitutional limits placed on the composition and function of Government. That should concern every citizen, regardless of party or politics.

We are told this is a matter of practicality or political expediency. We’re told it helps the government run more smoothly or allows for more inclusive voices at the table. 

Who is running the Government?

But when Michael Lowry TD - someone who brokered a deal between Fianna Fáil, Fine Gael, and the Regional Independent Group - states publicly that super juniors “will sit at the Cabinet table, have access to all Cabinet papers, contribute at Cabinet, and attend all leaders’ meetings,” we must ask - who is really running the Government?

This arrangement isn’t about good governance. It’s about maintaining power through political horse-trading. It is about doing deals behind closed doors and bending constitutional norms to fit political convenience.

It is now time to get clarity from the courts on the constitutionality of the issue. The Constitution must mean what it says. If we allow these lines to be blurred, we invite further erosion of the democratic checks and balances that are essential to our system of government and to our democracy.

This case is not about party politics. It is not about those who currently serve as super junior ministers. But the constitutionality of their role at Cabinet I believe must be clarified. 

A culture has developed where constitutional boundaries can be bent by political deal-making. The cost is the loss of public trust in politics and the weakening of our democratic institutions.

This case is about reasserting the rule of law, reaffirming the authority of Bunreacht na hÉireann, and ensuring that the Government operates as the Constitution demands. Anything less would be a disservice to the people of Ireland.