Former super-junior minister Finian McGrath has told the High Court he was treated as a “full minister” while attending government meetings and that he on occasion succeeded in blocking or amending cabinet decisions.
Mr McGrath, who served as minister of State for disability between 2016 and 2020, on Thursday gave evidence at the hearing of People Before Profit-Solidarity TD Paul Murphy’s action challenging the attendance of super junior Ministers at Cabinet meetings.
Cross-examining Mr McGrath, Attorney General Rossa Fanning suggested he was confusing his political influence within government with the role he actually held: that of a super junior minister with lesser powers than a senior government minister.
Mr Murphy’s case alleges super juniors’ presence at Cabinet is unconstitutional. He wants an injunction restraining super juniors from going to Government meetings.
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Mr Murphy’s case cites article 28 of the Constitution, which limits the number of government members to 15, including the taoiseach, and provides that they meet and act as a collective authority.
“Ministers of State attending cabinet”, or super junior ministers, are appointed by the government on the nomination of the taoiseach. They participate at government meetings but do not vote.
Senior government ministers are appointed by the President of Ireland on the advice of the taoiseach and with the prior approval of Dáil Éireann.
Mr Fanning is leading the State’s defence.
The hearing of Mr Murphy’s case immediately followed the conclusion of submissions in a similar case brought by Sinn Féin TD Pa Daly.
Mr McGrath told the court on Thursday that, as a super junior minister, he was treated with respect, and welcomed to the cabinet meeting as “a full minister”, with every person in the room “treated exactly the same”.
He said he was encouraged by both taoisigh he served under – Enda Kenny and Leo Varadkar – to participate in cabinet debates and decision-making.
Mr McGrath said he on occasion blocked decisions being taken at cabinet and amendments he suggested were sometimes adopted before certain proposals were approved.
Cross-examined by Mr Fanning, Mr McGrath said he did not accept that super juniors are perceived as being lower in the “political order” than senior government ministers.
Mr Fanning put it to Mr McGrath that he had no legal entitlement to attend cabinet, unlike senior government ministers.
Mr McGrath agreed that his attendance arose from a “political arrangement”. He also agreed he had no legal power to block a decision of government, as he had no entitlement to vote at cabinet.
Mr Fanning put to Mr McGrath that his presentation to the court confused the strategic, political influence he had within the government and any reasonable analysis of his actual role within government – a super junior with lesser powers than a senior minister. Mr McGrath disagreed.
“You’re diminishing the office of the super junior minister and I don’t like that,” he said.
John Callinan, the secretary general to the Government, reiterated to the court that in his experience, super junior ministers cannot submit or present memorandums to Cabinet. He qualified that it was not unusual for a memorandum to refer to the name of a Minister of State who may have an interest in the memorandum’s subject.
However, he said memorandums are always brought under the name of a senior Minister.
Under cross-examination, Mr Callinan told Mr Murphy’s senior counsel, John Rogers, that super juniors’ attendance at Cabinet was essentially a “political decision as part of the government formation process”.
Mr Callanan said the 15 members of Government have a right to attend Cabinet. He said it was a matter for the Government and the Taoiseach whether anyone else can attend and on what terms.
Asked what his source for this was, Mr Callanan said he believed it arose from the absence of a prohibition of such attendances.
Several expert witnesses gave historical evidence on Thursday. Prof Diarmaid Feritter spoke on the “evolution of thinking” behind the Constitution, with reference to the 1922 Constitution of the Irish Free State, and the adoption of the modern Constitution in 1937.
The case, sitting before three judges, continues, with parties expected to make their closing submissions on Friday.
