Former Senator and Independent Alliance TD Shane Ross has denied that writing a book about his time in government, which contained details of cabinet discussions, was an "act of calculated and deliberate illegality".
Mr Ross was being cross examined by the Attorney General in the High Court, where he was giving evidence in support of the case taken by People Before Profit TD Paul Murphy, challenging the attendance of junior ministers at cabinet.
Mr Murphy says the appointment of junior ministers who attend Government meetings is a breach of the Constitution and it's unconstitutional for them to participate in deliberations of Government as though they were members of Government.
He says the practice has significant ramifications for the public at large and for him as a TD, trying to do his job.
His challenge follows the conclusion of a similar action by Sinn Féin TD, Pa Daly. Both are being heard by the same three judge divisional court, convened to hear matters of constitutional importance.
Mr Ross said he had come to court after being asked by Deputy Murphy, in order to "tell the truth about what happened inside the cabinet room to help with the eventual resolution of this case".
Under cross examination from the Attorney General, Rossa Fanning, who is leading the Government’s opposition to the challenges, he agreed that it was important that the Constitution was upheld and was aware of the cabinet confidentiality rule throughout his time in Government.
Asked by Mr Fanning "on the oath" that he had taken at the beginning of his evidence and "on the hazard of criminal prosecution for perjury", if he had ever divulged cabinet discussions to a third party, in breach of Article 28 of the constitution, Mr Ross said he had written a book in which he talked about a lot of matters which happened at the cabinet. He said some of them were certainly matters which "may or may not have been in the public arena at the time".
Mr Fanning produced a copy of the book written by Mr Ross and told him he had printed out several extracts, all of which had in common a description of discussion at a government meeting. The Attorney General described this as an "act of calculated and deliberate illegality".
Mr Ross denied this and said it wasn’t meant in the way Mr Fanning had described and he hadn’t deliberately gone out to break the law.
He said these were important political matters of public interest about what was happening at the Cabinet and there was precedent for former politicians to write books like this.
He said he thought it would be far better if people knew what happened than if they didn’t know what happened and he said he wasn’t giving away any general secrets and hadn’t discussed the Security Committee on which he sat. However he said that on political matters of public interest, he felt it was justifiable and that there was plenty of precedent for it.
Mr Fanning accused Mr Ross of writing the book with "contemptuous disregard for the constitution", and said he had done so for personal profit. He asked him how much money he had made from this "calculated, deliberate act of illegality".
He asked Mr Ross if he proposed to retain the financial proceeds of his illegal conduct or give an undertaking that he would pay that sum to the capuchin friary as a demonstration of remorse for breaching the Constitution.
Mr Ross said he would not. He said there was very little money in books. He had made "very, very little money" he said and could give it to Mr Fanning "tomorrow". He said there was plenty of precedent for people who had been in public office to talk about their time within the cabinet room.
Earlier, Mr Ross told Mr Murphy’s Senior Counsel, John Rogers, who is a former Attorney General, that ministers of state who attended cabinet were treated in exactly the same way as senior ministers in the cabinet room. He said everyone in the room was treated identically and he never saw a "super junior" minister be silenced or curtailed from contributing due to their lower status.
He said in cabinet, junior ministers did not sit beside the ministers in whose departments they worked.
They considered themselves to be part of the government and to abide by the rules of collective responsibility. He said they had access to cabinet papers in the same manner as senior ministers.
He said junior ministers such as Finian McGrath who is also due to give evidence in this case, were free to speak on a large number of issues, even those outside their own portfolios.
Mr Ross said during the negotiations to form the government in 2016, discussions about which independent TD would get the full ministry on offer "didn’t arise". He said he and Mr McGrath didn’t discuss this.
Under cross examination, Mr Fanning put it to Mr Ross that junior ministers had no statutory powers unless an order delegating such powers to them was made by a full government minister. Mr Ross agreed he had made no such orders during his period as Minister for Transport.
He also agreed that ministers of state were never contacted for incorporeal meetings of cabinet and that the only people who brought memoranda to government were senior ministers.
Mr Ross said that junior ministers who attended cabinet did have a special influence because of their presence in the cabinet room.
He said that "access to where decisions are made, gives you influence on them".
Mr Murphy who has been a TD since 2014, was the first witness in his own case. He said he had taken the legal proceedings because he thought the constitution was being breached. And he said that had significant ramifications for the public at large and for him trying to do his job.
He said the attendance of junior ministers at cabinet, meant there was not a clear line of democratic accountability to the Dáil and there was significant ambiguity about who is actually in the Government. He said that created a problem in trying to hold the current government to account and he said it created problems for the future when he hoped to be in government.
He said "so-called super junior ministers" were attending government meetings week in and out, and were participating in the meetings in a full way – helping to shape outcomes and the ultimate decisions of government. This was even though they were not accountable to the Dail or approved by the Dail. Even though the court had heard government decisions were usually reached by consensus, and not through votes, he claimed the junior ministers had an effect on those decisions.
He said it was being suggested their opinions were not taken into account when deciding consensus in cabinet meetings. But Mr Murphy said this was hard to believe as people did not seek to be in government just to be there and listen. They wanted to shape outcomes by participating in a full way in deliberations. He said he believed there were occasions when decisions were affected by their presence.
Mr Murphy gave the example of the adoption of estimates which he said was a function of the 15 constitutionally appointed government ministers but was being influenced by the super juniors.
He said he did not object to the presence of the chief whip at cabinet meetings if they were acting purely as a chief whip and not as a junior minister.
In his opening address, Mr Rogers told the court citizens had the right to determine who ruled the State, through the Constitution and the approval of the Dáil.
He said the only rulers of the State were the 15 people appointed in accordance with the constitution.
Mr Rogers said the appointment of Junior Ministers who attend government meetings was a breach of the constitution and it was unconstitutional for them to participate in deliberations of government as though they were members of government.
He said there was "political ambiguity" in the way their appointments were announced by the Taoiseach to the Dáil.
He argued that in the absence of anything else in the constitution relating to the appointment of the Government, only the 15 people appointed pursuant to Article 28 were entitled to perform governance for the people and he said having designated their rulers, citizens required them to meet and act in the manner prescribed by the Constitution.
Neither the Taoiseach not the Government could hollow out or give away the expansive powers given to them by the people by diluting the Government by inviting other people to come in to cabinet meetings.
Mr Rogers told the judges there was "no law whatsoever" to say a minister of state was permitted to be in the Government. He said the Taoiseach and the Government had usurped a power they didn't have to bring "strangers" in a constitutional sense into the Government room.
Mr Rogers said the "super junior" ministers were in a very peculiar position, with no authority to be at cabinet meetings from the Oireachtas or from the Constitution.
He said, however, that it was quite clear they attended meetings, participated in deliberations and were listened to. But he said they were not fit people under the Constitution to be responsible because constitutionally they were not responsible.
And he said the people do not give powers to those how have no responsibility in relation to the powers they give.
The case will resume tomorrow when it’s expected to hear further evidence from historian Diarmaid Ferriter, and from former TD and "super junior" Minister, Finian McGrath.
