A Sinn Féin TD has launched High Court proceedings alleging the attendance of super junior ministers at cabinet meetings is unconstitutional.
Patrick “Pa” Daly moved an initial application on Tuesday seeking a “very urgent” hearing of an application for permission to pursue his claims in court.
Ms Justice Mary Rose Gearty allowed him to file his legal papers with the High Court and said she will hear the leave application on Wednesday.
Feichín McDonagh, senior counsel for Mr Daly, told the court the case relates to the Government’s recent appointment of three Ministers of State with rights at Cabinet.
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He said the non-Government super juniors cannot vote at Cabinet but have all other rights.
The recently-appointed super juniors are Fine Gael’s Hildegarde Naughton and Regional Independent Group members Seán Canney and Noel Grealish.
Mr Daly wants the court to declare that their attendance at Cabinet is unconstitutional, said Mr McDonagh, appearing with barristers Brendan Hennessy and John Biggins.
He said there is legislation that permits the taoiseach to appoint ministers of State, but his client argues the Constitution precludes this.
Mr Daly wants declarations related to the constitutionality of the super junior appointments and is not looking for strike-down orders “at the moment”. He said the case raises “very serious issues”.
The Kerry TD’s action is against the Taoiseach, Government, Attorney General and Ireland, who have not yet had an opportunity to respond to the claims in court.
Article 28 of the Constitution stipulates that the government “shall consist of not less than seven and not more than 15 members who shall be appointed by the president”.
Article 28.4.3° of the Constitution requires the maintenance of strict confidentiality regarding discussions at meetings of the government except where the High Court determines that disclosure should be made.
According to a summary of the Sinn Féin case, Mr Daly’s lawyers will argue that that by allowing junior ministers to attend and participate at Cabinet meetings, the Government is effectively by-passing the Constitution and undermining the collective decision-making process as set down by Bunreacht na hÉireann.
The Sinn Féin case also challenges the financial allowances granted to the super junior ministers, arguing that taxpayers’ funds are being used in an unconstitutional manner.
Mr Daly is seeking a declaration that the practice is unconstitutional and for the legislation that provides for the payments to be struck down by the court.
After Wednesday’s hearing – at which both sides will be represented – the judge must decide whether there is a sufficient case to answer and so whether to give Mr Daly leave to bring his proceedings. If he succeeds, a full hearing of the issues will take place at a later date.
Minister for Justice Jim O’Callaghan, speaking to journalists separately on Tuesday, said Mr Daly’s assertion was “an interesting point but I would have thought the Government will be contesting it”.
He added that the courts would “look at the substance of what’s happening”.
“There are 15 seals of Office handed out. The three Super Juniors are juniors, that’s what this says on the tin, they’re junior ministers, they’re not cabinet ministers and I think that’s the reality of what’s important.”
Government ministers are appointed by the president of Ireland on the advice of the taoiseach and with the prior approval of Dáil Éireann.
“Ministers of State attending Cabinet” are appointed directly by the government on the nomination of the taoiseach.
The practice of appointing super juniors was established in 1994, when Pat Rabbitte was allowed to join his Democratic Left colleague Prionsias de Rossa at the cabinet table even though he was not a member of the government.
In a column in the Irish edition of the Sunday Times over the weekend, former taoiseach Leo Varadkar wrote that politicians are “hamstrung by our Constitution which limits the number of senior ministers to 15”.
He said he, as taoiseach, “tried to get around the ‘rule of 15’ by creating three super-junior ministers with real and clearly defined responsibilities”.
Noting the government and State were smaller when the Constitution was written in 1937, Mr Varadkar went on to say it is perhaps time to “bite the bullet and amend the Constitution to allow for the number of senior ministers to increase” but this would “of course” require a referendum.
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