Finian McGrath tells court: 'I was treated as a 'full minister'
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.
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Cross-examining Mr McGrath, Attorney General Rossa Fanning put to Mr McGrath that 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 that super-junior Ministers' presence at Cabinet is unconstitutional. He wants an injunction restraining super-juniors from going to Government meetings.
Mr Murphy's case relates to 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.
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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 as 'a full minister', with every person in the Cabinet room 'treated exactly the same'.
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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 sometimes, amendments he suggested were adopted before certain proposals were approved at Cabinet.
He said he previously made 'deals' with other Governments in return for his support, but said being an Independent TD supporting a government was 'miles and miles apart' and 'completely different' to being a super-junior minister.
Cross-examined by Mr Fanning, Mr McGrath said he didn't accept that super-junior ministers are perceived as being lower in the 'political order' than senior Government ministers.
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Mr McGrath said there is a section of society that 'sneer' at super-junior ministers, and said he wanted to put on the record that super-junior ministers are different from ministers of state. 'Please don't say to me that super-junior ministers don't have more authority than ministers of state,' he said.
Mr Fanning put it to Mr McGrath that he had no legal entitlement to attend Cabinet, unlike senior Government ministers. Mr McGrath agreed his attendance arose from a 'political arrangement'.
Mr McGrath agreed that 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 Minister with significantly different and lesser powers than a senior Government minister.
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Mr McGrath said he disagreed. 'You're diminishing the office of the super-junior minister, and I don't like that,' he said.
Mr McGrath maintained that he 'brought' and 'presented' memorandums to Cabinet during his time as super-junior minister. Mr Fanning put it to him that ministers of state cannot submit memorandum to Cabinet, and that ministers of state cannot introduce memorandums to Cabinet.
Any proposal that requires a Government decision is brought to Cabinet as a memorandum.
John Callinan, the current 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 wasn't 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, memorandums are always brought under the name of a senior minister, he said.
Under cross-examination, Mr Callinan told Mr Murphy's senior counsel John Rogers that super-junior ministers' attendance at Cabinet was essentially a 'political decision as part of the government formation process'.
Mr Callanan said the 15 members of Government had 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.
He said super-junior ministers participated in discussion at Government meetings, but said he differentiated between discussion at Cabinet and Government decisions.
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He agreed that the current Government generally adopts decisions by consensus. He added that if Cabinet chose to adopt a decision through a vote, only the 15 members of Government could cast a ballot.
He said the concept of a super-junior minister is acknowledged in some statutes, which gives the position 'some weight'.
Several expert witnesses gave historical evidence on Thursday. Prof Diarmaid Feritter spoke to 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 a three-judge divisional court, continues, with parties expected to make their closing submissions on Friday.
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