The attendance of super-junior Ministers at Cabinet meetings is “at the very least, constitutionally questionable”, according to a constitutional law expert.
Prof David Kenny, who is head of the law school at Trinity College Dublin, believes Sinn Féin TD Pa Daly has “a very strong argument” in his High Court challenge seeking a court declaration that the attendance of three recently appointed “super junior” Ministers — one from Fine Gael and two from the Regional Independent Group — at Cabinet meetings is unconstitutional.
The TD must first convince the High Court that he has the necessary legal standing, and arguable grounds, to pursue the challenge.
Mr Daly, as a member of the Oireachtas, appears likely to meet the legal standing threshold, Kenny believes.
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As for the merits of the case itself, constitutional law academics have discussed for some time the “really interesting” issues raised by the participation of super juniors at Cabinet meetings, said Prof Kenny.
“We did not imagine there would be a case and it’s very interesting that now we have one.”
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There is a “very strong” argument that the participation of super juniors is “a questionable practice” for two reasons: the strict limit of 15 Cabinet members imposed by the Constitution; and the strict constitutional requirement of confidentiality of Cabinet discussions, he said.
Article 28 of the Constitution provides that the government “shall consist of not less than seven and not more than 15 members”. It also requires maintenance of strict confidentiality regarding discussions at meetings of the government, except where the High Court determines that disclosure should be made.
The confidentiality provisions mean discussions at Cabinet must be kept confidential between members of Government and that means restrictions on who attends Cabinet, said Prof Kenny. There is a “good case” that the participation of super juniors breaches those provisions. “At the very least, it is constitutionally questionable.”
If the High Court does grant leave for the case to be brought, Prof Kenny said he would not be surprised if a divisional High Court, comprising three judges, was assembled to hear it.
Whatever the outcome of any High Court hearing, there was “a real possibility” that the importance of the legal issues raised would see the case ultimately going before the Supreme Court for determination of grounds of exceptional public importance, he added.
Prof Laura Cahillane of the University of Limerick’s school of law said the participation of super juniors at Cabinet meetings “seems to go against all that the Constitution sets up in relation to Cabinet confidentiality”.
It makes “no sense”, when they are not part of the constitutional government, to have super juniors presenting memos to Cabinet and reporting back to their parliamentary grouping, said Prof Cahillane.
While the matter “may be tricky to prove in court”, Mr Daly has raised an arguable case, she believes.
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