The High Court has reserved its decisions on challenges by two TDs to the attendance of junior ministers at Cabinet meetings.
A three-judge division of the court presided over by the High Court president, heard the challenges by Sinn Féin TD Pa Daly and People Before Profit TD Paul Murphy over the course of the week.
Mr Justice David Barniville said these were very interesting and difficult cases. He said the judgments would be worked on over the next number of weeks, but it was unlikely they would be ready before the end of the legal term at the end of this month.
Both Mr Daly and Mr Murphy in their separate cases say the attendance of what are known as "super junior" ministers at Cabinet meetings is unconstitutional. They say the Constitution limits the Government to the 15 full Cabinet ministers appointed by the President and the participation of others in the Cabinet meetings is not permissible and also breaches the provision on Cabinet confidentiality.
In his action, Mr Murphy is seeking injunctions to stop the attendance of the junior ministers at Cabinet. Mr Daly is also challenging the legislation permitting an allowance to be paid to such junior ministers for their attendance.
In her closing submissions on behalf of the Government, Senior Counsel Catherine Donnelly said Mr Murphy's case depended on making fine distinctions between matters such as participating in a Cabinet meeting versus providing participants with assistance as well as having political influence versus influence on legislation.
She said these distinctions were "unstable" and completely unworkable and had the potential to undermine the very constitutional values Mr Murphy suggested he was attempting to uphold.
Ms Donnelly also noted the evidence of former super junior minister Finian McGrath who said he was treated exactly the same as full ministers. She suggested the judges were being asked to make a ruling on the subjectivity of how ministers of state might feel.
She said that just because there may be other people attending a meeting of the Cabinet, did not mean the 15 full ministers were not acting with collective authority when they made their decisions. And she said Mr Murphy’s side had not explained why Cabinet confidentiality was threatened by the presence of junior ministers but not by others who might be there such as the Secretary General to the Government, the Attorney General or other advisers who could attend.
Ms Donnelly told the court she did not accept the characterisation of the case by Mr Murphy’s side as a case based on the fundamental rights of citizens to designate their rulers. She said the attendance of ministers of state at Cabinet meetings did not interfere with this and did not dilute the accountability of the Government to the Dáil.
'Clear evidence'
Senior Counsel John Rogers for Mr Murphy said his side had put forward the "clear evidence" of former deputy Finian McGrath of his active participation in Government decisions. He said the Government had not disputed that this level of participation by junior ministers was continuing in the present Government.
Mr Rogers said it was his case that junior ministers who attended Cabinet were treated in all respects as if they were members of the Government. He said their influence in the Cabinet room was unconstitutional. He said it fractured the collective authority of the Government and breached Cabinet confidentiality.
He said there was no legal authority anywhere entitling the junior ministers to be at Cabinet meetings.
Mr Rogers said the constitution prescribed a course whereby the people would get their rulers, and that should be protected. He said the Government’s case came down to the entitlement of the Taoiseach to invite who he wished to attend and participate in Cabinet meetings on an ongoing basis.
Mr Rogers said any participation by outsiders on the basis of equality with ministers was a dilution of collective responsibility and accountability to the Dáil.
Senior Counsel Feichin McDonagh who represented Pa Daly said an issue relating to memos which could only be brought to Cabinet by senior ministers was an attempt to rely to try to gloss over the substance of junior ministers' participation in Government decisions.
Mr McDonagh also pointed out that all of the lawyers present in court were "assisting the court" and none of them were "taking part in the decision making" of the three judges.
The court may give its decision at some stage in the autumn. Legal sources expect the issue eventually to be decided definitively by the Supreme Court.
