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 spokesperson on finance 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 15 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.
In response, Attorney General Rossa Fanning said the question was whether the Constitution could be interpreted as forbidding the regular attendance of three or four ministers of state at Cabinet meetings while allowing the attendance of the Attorney General and Secretary General of the Government and other intermittent attendance by other ministers.
Plainly he said the answer was that the Constitution did nothing of the kind.
Mr Fanning said Mr Daly's case was entirely unsupported by the text of the Constitution and no constitutional provision at all had been breached.
He said it was the state parties case that the Constitution did not regulate the question of who could attend Cabinet meetings at all.
He added that if the court accepted there was regulation of this area by the Constitution, Mr Daly must prove there had been a clear disregard of the Constitution before the court could intervene.
Mr Fanning said Mr Daly was asking the court to enter the political thicket and to intervene in an unprecedented way with the inner workings of the executive branch of government.
He said the court should resist Mr Daly’s attempt to conscript the judiciary to involve itself in what is a political contest being played as an away fixture in the four courts.
He said it was a matter for Government as to who attended Government meetings.
Mr Fanning also suggested that Mr Daly had wrongly conflated attending meetings on one hand with being a government minister.
They were two entirely distinct concepts he said and there were significant differences in the legal status, powers and functions of government ministers and ministers of state.
He also said Mr Daly had put a simplistic focus on Cabinet meetings when they were only one element in government decision making and represented the last step in the chain of a Government decision.
Mr Fanning said the idea that ministers of state must be hermetically sealed away from the formation of government policy was completely unreal when one looked at how government operated and the existence of 12 different Cabinet committees.
He said a decision made by 15 Cabinet ministers on a consensus basis was not invalidated by additional people in the room sharing in that consensus.
And he said the presence of three or four ministers of state at meetings did not undermine the government’s responsibility to Dáil Eireann.
Mr Fanning said the practice of ministers of state attending Cabinet meetings was underpinned by legislation providing for them to receive allowances for doing so.
He said the constitutional provision on Cabinet confidentiality was never intended to have the effect that people such as ministers of state could not be in the room when decisions were made.
He said the purpose of the constitutional amendment on this issue was to protect government from interference from other arms of the state.
Mr Fanning claimed Mr Daly’s legal team were trying reverse engineer an interpretation of the Constitution to suit his argument.
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 on Wednesday.
It will also be heard by the three judge divisional court, which is convened to hear matters of constitutional importance.
