The Attorney General has said the courts cannot regulate who can attend Cabinet meetings and any intervention would be an unprecedented intrusion into that branch of Government.
Senior Counsel Rossa Fanning was making submissions for a second day in a High Court challenge by Sinn Féin TD Pa Daly to the attendance of so called super junior ministers at cabinet meetings.
Mr Daly has argued that the appointment of ministers of state with rights to attend Cabinet is unconstitutional.
Three judges of the High Court began hearing the challenge taken by Mr Daly yesterday. The case is expected to finish tomorrow.
A similar action by TD Paul Murphy, who is seeking an injunction stopping the junior ministers from attending Cabinet, will begin tomorrow.
It will also be heard by the three judge divisional court, which is convened to hear matters of constitutional importance.
Continuing his submissions today, Mr Fanning said Mr Daly's case could only be characterised as a political challenge to the integrity of the Government.
He said it would be an extraordinary incursion in the autonomy and independence of of the executive branch for the court to regulate who attended government meetings in the absence of clear stipulation in the Constitution.
He said the Government ought to have a significant margin of appreciation in how it conducts its business, other than where the constitution regulates it, and it was not for the court to find constitutional regulation where it was not contained in the text.
He also said the case by Mr Daly was taken with a "curious mix of indolence and haste" referring to a letter from Mr Daly in July 2020 questioning the same points made in the current case.
He said at that stage Mr Daly "did absolutely nothing" but five years later pursued it "with enormous haste".
He said there was "no way to characterise these proceedings other than a political challenge to integrity of the government at the very outset of its existence ".
Mr Fanning said Mr Daly was an opposition TD and his motivation for taking the case did not sit easily with the fact that a Sinn Féin junior minister attends meetings of the NI executive.
Earlier, Mr Fanning said there was a danger of exaggeration in the case taken and it was not some sort of apocalyptic level of exponential growth in the size of government meetings which had risen by three.
He said there were examples of officials attending government meetings at the discretion of the Taoiseach and these things were best left to that discretion and not second guessed by the court as Mr Daly’s side was asking it to do.
Incorrect interpretation of the Constitution
Yesterday, Senior Counsel Feicin 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 said this interpretation of the Constitution was not correct.
Today, Mr Fanning said the court ought not to concern itself with hypotheticals and could not decide the case on hypotheticals.
He said there was a suggestion by Mr Daly’s side that "it would be awful if someone not involved in politics could be involved in policy formation. He said anyone suggesting government could form policy on complex areas such as disability issues without speaking to the HSE was not living in the real world.
In response Senior Counsel Eileen Barrington said they key to the case was the meaning of Article 28 of the Constitution which provides for 15 ministers.
"If the Taoiseach can invite anyone in to attend and take part, to participate in the debate and become involved in consensus it must be clearly wrong because only 15 are envisaged in the Constitution and it cannot be correct that any number of others unidentified by the constitution can come in and be involved in decision making," she said.
Ms Barrington said this was not the same as officials being invited in for a specific purpose to answer questions. She said article 28 did not permit a constitutional "free for all outside it".
She said the super junior ministers were acting in a "parallel cabinet and are acting as de facto government ministers when they are involved in decision making".
Quoting the musical Hamilton, she said the super junior ministers were "in the room where it happened." She added: "And what is wrong with having people in the room where it happened? Well the problem is that they get to see and participate how the sausage is made they are involved in the sausage making ."
