A three judge division of the High Court is hearing a challenge by Sinn Féin TD, Pa Daly, to the attendance of so called super junior ministers at Cabinet meetings.
Mr Daly has been joined at the High Court by party leader, Mary Lou McDonald and the party’s finance spokesperson, Pearse Doherty who described the case as “very important”.
Mr Daly argues the Constitution limits the number of Government Ministers to 15 and binds them to confidentiality about their discussions.
He is arguing that the appointment of ministers of state with rights to attend cabinet is unconstitutional.
Senior Counsel, Feichín McDonagh on behalf of Mr Daly told the three judges that the status of ministers of state who regularly attend cabinet is entirely dependent on the Taoiseach who appoints them.
He said their so-called “entitlement” to regularly attend meetings of the government was not based on any step the government had taken and could not be described as an executive function of the government.
He said the legal basis of their appointment was exactly the same as the other ministers of state who do not attend cabinet because there was no such office as a minister of state who regularly attends cabinet meetings. He said no such office had been created by the constitution or by legislation.
And he said just because the Oireachtas had decided to pay an allowance to such super junior ministers that did not change the position.
He said Mr Daly was also challenging the provision of the legislation permitting the allowance.
Mr McDonagh said Article 28 of the constitution allowed fifteen members of the government, appointed by the president, to meet and act as a collective authority.
He said the government had been formulating policy and taking countless decisions purporting to act as a collective authority along with the extra super junior ministers. He said that egg could not be unscrambled.
He said Mr Daly was not trying to challenge any particular decision made by the government in that way, but he said it was a danger and a possible problem as another litigant could.
Mr Daly, he said, was simply ensuring the government complied with the Constitution.
Mr McDonagh said the state argued that other people apart from the fifteen presidentially appointed ministers could attend meetings, to give advice, at the invitation of the Taoiseach.
He said if that was correct any number of individuals including non politicians could attend. And he claimed this interpretation of the constitution was not correct.
He said there was a distinction between ministers of government who meet and formulate policy and meeting with the government at the invitation of the Taoiseach.
Mr McDonagh said the attendance of the Attorney General at cabinet meetings was based on the AG’s constitutional role obliging him to give legal advice.
The Secretary General of the Government took notes of Government meetings.
Mr McDonagh said no one was suggesting the AG or the secretary general met and acted as a collective authority with the government.
He said his side did not accept there was any constitutional authority for the person in the position of chief whip to attend cabinet.
However he said the current chief whip was attending as a super junior minister.
Mr McDonagh also submitted that the confidentiality of government discussions between the 15 ministers appointed by the President under the Constitution must be protected.
And he argued that communication from the 15 ministers to the super junior ministers about those discussions was a breach of the constitution.
The super juniors who have been appointed to cabinet are Hildegarde Naughton of Fine Gael, Sean Canney and Noel Grealish of the Regional Independent Group as well as Mary Butler of Fianna Fáil who is also Government Chief whip.
The Government is opposing his action and is being represented by a team led by Attorney General, Rossa Fanning.
Three-judge divisions of the high court are convened to hear matters of constitutional importance.
TD Paul Murphy who has taken a similar action seeking an injunction stopping the junior ministers from attending cabinet is also in court. His action is due to start later in the week.
