Super junior ministers attending meetings of government are “not decision-makers” and have “fundamental differences” in powers and functions compared to government ministers, the Supreme Court has heard.
Attorney General Rossa Fanning put forward the submissions on the second day of the hearing of an appeal by two TDs after their legal challenge to the attendance of super junior ministers at meetings of government was rejected.
Sinn Féin Kerry TD Pa Daly and People Before Profit Dublin TD Paul Murphy have said that only government ministers can attend the meetings.
Mr Murphy has argued the attendance of super junior ministers at Cabinet was inconsistent with article 28 of the Constitution of Ireland, which says the government “shall consist of not less than seven and not more than 15 members”.
Mr Daly had challenged the Government’s appointment of super junior ministers on the basis that it caused issues for Cabinet confidentiality as well as an issue of expenses and allowances paid.
In December last year, President of the High Court Mr Justice David Barniville said he and his two colleagues had rejected the arguments made by Mr Daly and Mr Murphy “in their entirety”.
Ministers of state who attend Cabinet are appointed by the government on the nomination of the taosieach.
Speaking before the seven-judge Supreme Court, Mr Fanning said there are three foundational issues at the heart of the case.
He said these are what is the government and its Executive powers; what are the powers of the ministers of state who regularly attend Cabinet meetings; and what is the nature of decision-making in modern government.
Mr Fanning said a large part of the appeals concern confusion as to what constitutes a government and claimed the applicants’ arguments could be reduced to “little more than a soundbite”.
“The response is that these ministers of state are not decision-makers, nor are they loose horses, but rather ministers of state and the fundamental error that afflicts both appeals is that they wrongly conflate attending a meeting on one hand with being a government minister on the other hand,” Mr Fanning added.
“There are fundamental differences in the legal status of powers and functions between government ministers and ministers of state for the whole week. There are 168 hours in the week and Cabinet meetings take place for two hours, usually on a Tuesday morning, and at those meetings the ministers of state have a different function and status.
“It’s common case that they are there by invitation and not entitlement. Their attendance is recorded differently, they are not decision-makers.
“Although they may be in the room, they are not decision-makers.”
He said the title of a minister of state remains substantially subordinate to a Government minister, and that powers are delegated by the minister and are not exclusive to the minister of state.
He further stated that junior ministers are paid less, which he claimed shows they are of a different rank, however he also confirmed that they are paid more than others government representatives and that this reflects their additional responsibility.
Chief Justice Donal O’Donnell said the “significance” is the regular attendance at Government meetings and that it “acts collectively”.
“Certainly the four ministers of state meet and participate in the meeting and take part in those actions. That the nub of the case,” the Chief Justice added.
Mr Fanning said it is “very clear and can’t be disputed” that the position of a minister of state is a legally subservient role.
“If the 15 are there (in Cabinet) and they have consensus between them, how is that invalidated by others being there in the room?” he added.
Ms Justice Iseult O’Malley questioned how the taoiseach’s decision to invite the junior ministers can be squared with article six of the Constitution and the right of the people to decide the rulers of the state, particularly when they are “large numbers” present and participating in Cabinet meetings.
Mr Fanning said it is not the people who elect the government, but rather the Dáil who nominates government ministers.
He said it is not their case that the junior ministers were asked to take a vow of silence when attending meetings, but that they are there on the basis of not holding a position of decision-makers.
Earlier, John Rogers SC, for Mr Murphy, was asked about the test the court should use to establish whether the constitutional restraint had been breached and how the courts could police that.
It was put to Mr Rogers about how it would be known whether people who are not government ministers but participate in Cabinet meetings are breaching the constitution.
Mr Rogers said that the super junior ministers participate in an “entirely equal basis” in deliberations of the government with the other ministers, and that decisions are made on foot of those discussions.
He told the judges the super junior ministers are exercising political leverage in the room and the evidence heard shows they are able to stop government decisions being made.
“The four are in the room at every (Cabinet) meeting and are deliberating on an equal with those 15,” Mr Rogers added.
Paul Murphy argued the attendance of super junior ministers at Cabinet was inconsistent with article 28 of the Constitution of Ireland (Damien Eagers/PA)