Appeals by two Opposition TDs over the attendance of super junior ministers at meetings of Government are “fundamentally flawed”, conflating attendance at meetings with being a full government minister, the Supreme Court has heard.
Attorney General Rossa Fanning made the submissions on Thursday at the hearing of an appeal by Pa Daly of Sinn Féin and People Before Profit-Solidarity’s Paul Murphy over the rejection of their legal challenges to the attendance of super junior ministers at meetings of Government.
A three-judge High Court last December dismissed the challenges by the TDs. They were subsequently awarded 50 per cent of their legal costs against the State because of the importance, novelty and complexity of the constitutional issues raised.
The TDs brought separate but similar challenges, arguing that article 28 of Bunreacht na hÉireann limits the number of government members to 15, and the attendance of super junior ministers at cabinet meetings goes against this.
Ministers of state attending cabinet – or super junior ministers – are appointed by the government on the nomination of the taoiseach. They participate in government meetings, but do not vote.
The High Court, comprising court president David Barniville and judges Siobhán Phelan and Conleth Brady, held that no provision of the Constitution is breached by the attendance and participation of the junior ministers at cabinet meetings.
Both TDs applied to the Supreme Court to hear appeals against the High Court decision on grounds including that it was based on errors of fact and of law. They are also appealing the costs orders, arguing they are entitled to their full costs.
Leading the State’s defence of the cases at Thursday’s hearing, Fanning told a seven-judge Supreme Court that on a narrow view, the case concerns whether the regular attendance of four ministers of state at meetings of Government constitutes a breach of the Constitution.
Viewed in a broader way, the case touches on the separation of powers between the judicial and executive branches of the State, and raises questions about the justiciability of political arrangements underpinning the maintenance of governments in an “increasingly fractious” political landscape, the AG submitted.
Part of the appeal concerned a confusion around the definition of “government”, Fanning said. He said it suited the Daly and Murphy sides to engage in “wilfully simplistic and facile” analysis of article 28 of the Constitution.
“The fundamental error that afflicts both appeals is that the appellants wrongly conflate attending a meeting on one hand with being a government minister on the other hand,” he said.
Fanning submitted that ultimately, ministers of state attending government “are not decision makers”.
This was underscored by the fact that they are not consulted when decisions are taken at incorporeal meetings of Government, he submitted. “That is a vivid and practical manifestation of the fact that although they’re in the [Cabinet] room, they’re not decision makers,” he said.
The appeals, before Chief Justice Donal O’Donnell, Judge Iseult O’Malley, Judge Gerard Hogan, Judge Brian Murray, Judge Maurice Collins, Judge Aileen Donnelly and Judge Brian O’Moore, continue on Friday.