The incoming government will be the largest in the history of the State, with a total of 38 ministers. Given the controversy around the rapidly expanding numbers of junior ministers (23), of which up to four are “super junior” ministers, according to media reports, it is worth examining the constitutional parameters of these offices.
Probably one of the most sensible provisions of the Constitution is the rule capping the size of the cabinet at 15 members. It doesn’t take a cynic to understand that, in politics, there are incentives for the winning side to increase the “spoils” – and, especially, the number of executive roles to be divided up among the governing parties. Without this rule, there would naturally be a temptation simply to increase the number of cabinet seats where there might otherwise be slim pickings to be shared between coalescing parties. And this might come at the expense of coherence.
In recent years, one way around this has been to increase the number of minister of state positions. Ministers of state, sometimes called “junior ministers”, are not members of the government. It is an office created by legislation, not by the Constitution, and, as a result, there is no constitutional limit on how many can be created. Of course, juniors lack the clout and prestige of “full” ministers.
In 1994, however, a way was found to circumvent the constitutional limit on the size of the cabinet itself during negotiations on the formation of the three-party rainbow coalition. Pat Rabbitte, then a Democratic Left TD, was given a new position of “super junior” minister. He was to be a minister of state, not of government, who was nonetheless permitted to attend government meetings, and would therefore enjoy enhanced status (and eventually enhanced remuneration) compared with other “junior” ministers.
Since then, the role of super junior ministers has become integral to government formation. But there are, nonetheless, two main constitutional problems with the concept. First, article 28 stipulates the government “shall meet and act as a collective authority, and shall be collectively responsible for the departments of State”.
Collective responsibility has always been understood as meaning that government decisions must be made by the membership of government itself, and not by any smaller subset or any wider group involving non-members. While super juniors apparently do not vote at cabinet and only attend meetings, the cabinet doesn’t usually decide by voting anyway. While it is impossible to know their exact degree of involvement in practice, were super juniors to meaningfully participate in cabinet decision-making, it would violate collective responsibility.
The second problem is more compelling. Following the creation of the super junior role, the Constitution was amended in 1997 to explicitly enshrine the confidentiality of cabinet “discussions”.
The Constitution contains many terms that are vague or undefined. But the meaning of “confidentiality” is reasonably clear. It means that cabinet discussions cannot be witnessed by anyone who is not a member of government – even if the details travel no further than the guests themselves (which is itself impossible to guarantee). Some may argue that “confidential” merely means “not disclosed to the public”. But it seems to me clear that its ordinary meaning is that the relevant material should not be disclosed to any third party whatsoever.
Some will point out that individuals other than ministers have always attended cabinet meetings, and that this has never been understood as inconsistent with confidentiality. There are practical exceptions to literal confidentiality in any meeting – where, for example, some record must be taken.
In the case of cabinet, the presence of the attorney general is probably justified by their constitutional role as legal adviser to the government, while the chief whip and the secretary to the government also attend.
But while it might be constitutionally acceptable for certain non-members to attend, there must be some criterion of necessity relating to the operation of government meetings. Clearly, it would be unconstitutional for, say, a dozen members of the public to be invited to witness proceedings.
So what makes it permissible to include ministers of state? Their presence is hardly essential for the effective functioning of cabinet. They will need to know what decisions are made, but those can be communicated without breaching constitutionality. In reality, their inclusion has a lot more to do with political expediency than with any practical necessity.
[ With 23 junior ministers, new government will be largest in history of StateOpens in new window ]
One of the quirks of our constitutional system is that correcting constitutional violations depends almost entirely on whether any one is willing to take a case. It may simply transpire that nobody does and something unconstitutional stands uncorrected indefinitely.
There is also the problem of standing rules, the general principle being that someone taking a case must have been specifically affected by the unconstitutional practice they are complaining of. Paradoxically, though, some unconstitutional actions don’t affect any one citizen more than any other, while still equally affecting the right of all citizens to have the Constitution observed. Nobody is especially affected by what arguably amounts to the disregarding of collective responsibility and cabinet confidentiality, yet we can hardly accept impunity for governments to depart from constitutional rules whenever it is expedient.
Indeed, courts have in the past permitted challenges by people with no obvious direct interest in the matter, which seems sensible where no person is more affected than any other by a constitutional violation.
In 1993, the Supreme Court said that cabinet confidentiality (then merely implicit) was “a constitutional right ... not capable of being waived by any member of a government.” Essentially, the public has a right to have the confidentiality of cabinet discussions observed; it is not a “right” belonging to the government that it is free to waive at its own discretion.
The Constitution provides the ground rules of the political game for power, and while it is not sufficient by itself to prevent abuses, adherence to it is critical to maintain political integrity. Any perception of constitutional rules being circumvented by cynical sleight of hand is damaging to politics.
If there is an argument that the demands of a modern state require more than 15 members of cabinet, then let the government put that case to the people as a constitutional amendment.
Eoin Daly is a law lecturer in the University of Galway
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