LAST UPDATE | 7 Jul

EVERY GOVERNMENT DECISION since 2001 ‘may not have been in accordance with the constitution’ due to the presence of so-called ‘super junior ministers’ at cabinet meetings, a TD’s case against the Taoiseach regarding their appointment has heard.

Sinn Féin’s Pa Daly is asking the High Court to declare that the attendance of four Ministers of State, or so-called ‘super junior ministers’, at government meetings as unconstitutional as there is a constitutional limit of 15 members of cabinet.

During his opening argument today, Feichín McDonagh, SC, for Daly, outlined that the main element of the case is that there is no legal definition that outlines the role of ‘super junior ministers’, under the constitution or otherwise.

McDonagh argued that the government has repeatedly interpreted Article 4.2 of the constitution, which says the government shall meet and ‘act as a collective authority’, to mean that super junior ministers can be included in a ‘collective authority’.

But, he argued, Bunreacht na hÉireann, or the Irish constitution, is clear in that there cannot be more than 15 members of government, and therefore any decisions made by others at cabinet are taken without any authority.

If super junior ministers have been involved in decision-making since they were first appointed in 2001, every decision by government since then may not have been taken in accordance with the constitution, he said.

“Government has been undoubtedly purporting to act as a collective authority, but for the last 30 years, each of those decisions has been formulated – not just with the government meeting and acting as a collective authority – but rather with government and other [people] acting as a collective authority,” he said.

McDonagh added: “You can’t unscramble that egg.”

Under that definition, he argued, the Taoiseach has the authority to appoint anyone as a super junior minister, not just elected politicians.

15 members, no ‘add-ons’

Separately, as there is a constitutional obligation for cabinet business to be conducted in private, the presence of super junior ministers at those meetings puts the government’s confidentiality at stake, McDonagh told Mr Justice David Bairnville today.

He also said the constitutional definition of Government includes a maximum of 15 members, and “does not include add-ons”. 

McDonagh argued that the definition of super junior ministers is so thin that former Taoiseach Leo Varadkar was not aware of the distinction between them and ministers of state in a Sunday Times column earlier this year.

Daly’s team later acknowledged that references to the former Taoiseach’s article were hearsay, and said that they relied on the newspaper column to show the common perception of super junior ministers.

However, counsel for the Taoiseach told the court this afternoon that Daly’s case is “entirely unsupported by the text of the Constitution”.

Defending the Taoiseach, Attorney General Rossa Fanning said that the Government has precisely followed Article 28.1, which says the government “shall consist of not less than seven and not more than fifteen members who shall be appointed by the President”.

Fanning said that “15 members of the government have been appointed by the President in accordance with the constitution”, and argued that the four super junior ministers are not members of the government. 

The Attorney General also said there is no “constitutional breach”, as Article 4.2 around collective authority is not violated “simply due to extra people being [at government meetings]”.

He told the court that, as decisions are made by consensus of the 15 members of government, the presence of super junior ministers does not have any impact.

“If 15 members of government have consensus, how is that consensus invalidated simply because some additional people share that consensus?” he asked.

Fanning said Daly’s“fundamental error” is that he has “wrongfully conflated attending government meetings on the one hand with being a government minister on the other”, adding that the two concepts are “distinct”.

The Attorney General said the constitution is “noticeable for its absence of regulation of government meetings”. 

Fanning said the Constitution does not mention details about who can or cannot attend government meetings, including the government’s Chief Whip and Secretary General.

He added that this means that a decision about who can attend meetings is a government matter, and that one cannot exclude super junior ministers while allowing the Chief Whip and Secretary General to attend.

No plans to call Varadkar, at the moment

Speaking outside the court this morning, Sinn Féin leader Mary Lou McDonald said the challenge is to a government that her party believes has “played fast and loose with the Constitution to secure a grubby deal with Michael Lowry to retain office”.

There had previously been suggestions that former Taoiseach and Fine Gael leader Leo Varadkar could be called as a witness in the case. In his Sunday Times column, he wrote creating super junior ministries is a way to ‘get around’ the constitutional cap.

Asked today if Varadkar will be called as a witness, Daly said there are no plans to “call him physically into court at the moment”. 

The case was called for an initial hearing in February, when Attorney General Rossa Fanning represented all the respondents in the case – himself, the Taoiseach and the Government.

The super junior ministers appointed to this Cabinet include Fine Gael’s Hildegarde Naughton, Independents Sean Canney and Noel Grealish and Fianna Fáil’s Mary Butler.

Includes reporting by Jane Matthews & Jane Moore