The attendance of super-junior Ministers at Cabinet meetings is âat the very least, constitutionally questionableâ, 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 âa very strong argumentâ in his High Court challenge seeking a court declaration that the attendance of three recently appointed âsuper juniorâ Ministers â one from Fine Gael and two from the Regional Independent Group â 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.
As for the merits of the case itself, constitutional law academics have discussed for some time the âreally interestingâ issues raised by the participation of super juniors at Cabinet meetings, said Prof Kenny.
âWe did not imagine there would be a case and itâs very interesting that now we have one.â
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There is a âvery strongâ argument that the participation of super juniors is âa questionable practiceâ 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 âshall consist of not less than seven and not more than 15 membersâ. 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 âgood caseâ that the participation of super juniors breaches those provisions. âAt the very least, it is constitutionally questionable.â
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 âa real possibilityâ 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 Limerickâs school of law said the participation of super juniors at Cabinet meetings âseems to go against all that the Constitution sets up in relation to Cabinet confidentialityâ.
It makes âno senseâ, 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 âmay be tricky to prove in courtâ, Mr Daly has raised an arguable case, she believes.
