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Irish Times
18-07-2025
- Politics
- Irish Times
Supreme Court is still changing society, says Attorney General
The Supreme Court has made 'as many' declarations of unconstitutionality in the last 15 years as happened during the court's life in the 1960s and 1970s, Attorney General Rossa Fanning has said. 'The perception that constitutional litigation has dried up and that there are no new rights is not statistically borne out,' he told the Patrick MacGill Summer School in Glenties, Co Donegal. During the same debate, Labour leader Ivana Bacik had argued that the high point for Supreme Court intervention came more than 50 years ago under Mr Justice Brian Walsh and Cearbhall Ó Dálaigh, when new rights were discovered in court judgments. 'There are as many declarations of unconstitutionality now in the last decade and a half as there ever were in the 1960s and 1970s,' said Mr Fanning, 'it is not the case that there was a whole load of declarations of unconstitutionality 50 years ago and now there are none.' However, he said the Irish Constitution is 'a mature instrument', no longer subject to 'low-hanging fruit' changes as happened 50 years ago when the Supreme Court established that everyone facing trial is entitled to legal representation. [ State urged to target five or six 'crucial' infrastructure projects Opens in new window ] 'That kind of seminal decision is unlikely to be happening as frequently now under a mature instrument. But that's not necessarily a bad thing,' Mr Fanning said in a debate on the Constitution, chaired by Ruadhán MacCormaic , editor of The Irish Times. Contrasting the Irish and US supreme courts, Mr Fanning said: 'The Constitution doesn't mean whatever the judge thinks it should mean when he gets out of bed. 'The Constitution is not a subjective document. There must be objective principles that govern its interpretation. The meaning must be found from within the document itself.' The Supreme Court rejected an application by Katherine Zappone, who later became a minister, to have her Canadian same-sex marriage recognised in Ireland, but this left the way open for a successful referendum later, he said. 'I personally think it's very difficult to disagree with the proposition that the way we did bring it about has an awful lot more democratic legitimacy, and consequently popular and public acceptance,' the Attorney General said. 'Quite literally, the proposition was put to the people and the people decided, not unelected judges arriving at a very strained and artificial interpretation of a Constitution written in 1937.' [ Better-off families 'sailing away from the have-nots', warns Ombudsman Opens in new window ] The Irish experience can be contrasted with the US, where its 'constitution is almost impossible to amend' and where president Donald Trump could boast that one of his most significant achievements was the appointment of three conservative judges. '[They] are called upon to decide all of these important moral issues, whether it be same-sex marriage or abortion or many other things. They've become almost more important than any legislator in America, with Secret Service protection following them around.' Contrasting the Walsh/Ó Dálaigh Supreme Court with the court in later years, Ms Bacik, a legal academic and barrister who has appeared before the Supreme Court, argued: 'In the 1960s and the early 1970s, we saw an expansive approach to judicial lawmaking. Then that completely slowed down. 'There was then a rolling back and judges were much more deferential to the executive and the Oireachtas, leading to charges that the era of judicial lawmaking was over.' However, there has been a change since 2017 where 'some judges on the Supreme Court are clearly looking to be more expansive again', drawing inspiration from the European Convention on Human Rights, among other sources. 'It's no longer unusual to see quite a number of different judgments [from Supreme Court justices],' she told the summer school, adding, 'some are clearly pushing the boundaries a little'. Referring to the Irish unification debate, the Labour leader urged the creation of an Oireachtas joint committee that would consider 'the language and text' of the Constitution in advance of a unity referendum. Unlike the situation now facing the US, most, if not all, of the Irish Supreme Court judges are not known by the public, Prof David Kenny, Professor in Law and Fellow and head of Trinity College Dublin's law school. 'Almost no one in the room could identify one Supreme Court judge as being on the left or on the right, as opposed to the US where you can almost predict decision by decision how judges will come down,' he said.
Irish Times
11-07-2025
- Politics
- Irish Times
Ex-super junior treated as a ‘full minister' despite status, High Court hears
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. READ MORE 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.
BreakingNews.ie
10-07-2025
- Politics
- BreakingNews.ie
Finian McGrath tells court: 'I was treated as a 'full minister'
Former super-junior minister Finian McGrath has told the High Court he was treated as a 'full minister' while attending Government meetings, and 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. Advertisement 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. Advertisement 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'. Advertisement 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. Advertisement 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. Advertisement 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. Ireland Pensioner suffered injuries similar to 'head-on cr... Read More 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.
The Independent
07-07-2025
- Politics
- The Independent
Court must avoid judiciary being dragged into super juniors ‘political contest'
The High Court ought to resist any attempt to bring the judiciary into a political contest being 'played as an away fixture', the court was told as it hears a challenge over the constitutionality of super junior appointments. The three-judge division of the High Court is hearing the case, brought by Sinn Fein TD Pa Daly, who is challenging the attendance of the so-called super junior ministers at Cabinet meetings. On Monday afternoon, the Attorney General (AG) Rossa Fanning told the court that the Constitution does not forbid the attendance of super junior ministers while simultaneously allowing the attendance of the Secretary General and the AG. Mr Fanning, SC for the Government, said Mr Daly is asking the court to write in a new constitutional provisional that is 'simply not contained' in the text. He claimed that Mr Daly is asking the court to enter the 'political thicket' and to intervene in the inner workings of Government. He said that the court ought to resist the applicant's attempt to have the judiciary involved in a political contest being 'played as an away fixture down in the Four Courts'. 'These proceedings are misconceived in a number of respects but there is one fundamental error on which they are premised,' Mr Fanning added. 'The error that affects this case is that he wrongfully conflates the attendance of government meetings with being a government minister on the other. 'The two concepts are entirely distinct. There is a significant difference in legal statutory powers and functions of government ministers on one hand and ministers of state on the other.' He added that statutory powers are delegated to ministers of state, and that the delegation is subject to the government ministers, which means, he added, that ministers of state remain under the supervision of senior ministers. He added that the invitation of super junior ministers to Cabinet meetings is underpinned by legislation, and that Cabinet meetings are one element of government decision making. He added that government policy is not formed at Cabinet in any 'real sense' . 'It is the last stop in the government chain,' he added. Earlier the court was told that super junior ministers are acting as a 'collective authority' with ministers at Cabinet, in breach of the constitution. Sinn Fein leader Mary Lou McDonald and Donegal TD Pearse Doherty were in court on Monday alongside Mr Daly. Mr Daly argues that Article 28 of the Constitution of Ireland limits the number of government members to 15. The super junior ministers appointed include Fine Gael's Hildegarde Naughton, as well as Independents Sean Canney and Noel Grealish. Fianna Fail's Mary Butler is also a minister of state attending Cabinet. Senior government ministers are appointed by the president of Ireland on the advice of the taoiseach of the day, and with the approval of the Dail. Super junior ministers are appointed by the government on the nomination of the taoiseach. Feichin McDonagh SC told the three judges that the legal basis of their appointment was exactly the same as the other ministers of state who do not attend Cabinet. He added that there is no legal basis for the appointment for 'ministers of state who regularly attend Cabinet'. 'That creature simply does not exist under legislation,' he added. He said he has queried with the respondents about what exactly is a minister of state who regularly attends government meetings. 'One would have thought following exchange of meetings there might be some consensus, but there does not appear to be a consensus,' Mr McDonagh said. He told the court it was not possible to address the issues unless the court knows what a super minister is. 'The designation of super junior by taoiseach was in some way an exercise of executive power of the state,' he added. He said it is suggested in the respondent's affidavit that there is an office called minister of state who regularly attends government, which Mr McDonagh said does not exist. He added that a decision to pay an allowance to super juniors does not change that position. 'Four super juniors now get an allowance and we challenge the provisions in that legislation to allow that,' he added. 'There is minister of state who is told by taoiseach they can regularly attend government (meetings) and if they come into that category they get 16,000 euro a year. 'But it is not an office, not enacted under the constitution and there is no underpinning to suggest that the office is being created.' He also queried the meaning behind the words under Article 4.1, in which it states that the Government shall meet and act as a collective authority. 'What does collective authority do? They meet and with the others (ministers) they collectively act. Who is acting collectively? It is the government along with the super junior ministers,' Mr McDonagh added. 'There will be government decisions taken and government acting collectively. 'In that scenario there are extra individuals who are there present in the counsel of chamber. They are taking a full role in the formulation and formation of government policy, thereby acting as a collective authority and there is no dispute between the parties as to that being what is happening. 'The government is formulating policy and taking countless decisions and undoubtedly purporting to act as a collective authority. 'You cannot unscramble that egg. If you have government meeting with super juniors speaking to perspective government decisions and a consensus is arrived at, that decision is no less than a government decision than one that has been voted on. 'That decision is arrived at following a process of mixing yolks to getting into scramble egg and that cannot be unscrambled.' Earlier, Ms McDonald said the Government has broken the rules. Speaking outside court, Ms McDonald said: 'This is a challenge to a Government who we believe have played fast and loose with the Constitution in a bid to secure a grubby deal with Michael Lowry and to retain office, Fianna Fail and Fine Gael, we believe are acting in defiance of the Constitution. 'There are four so-called super junior ministers who attend Cabinet. The Constitution, in our view, is very clear. The Cabinet amounts to 15 members, and we believe that the Government is breaking the rules. 'They've broken the rules because at all costs, Micheal Martin and Simon Harris wish to remain in government, so they cut this deal, as you know, with Michael Lowry, and we are here now to challenge that action and to seek clarity.' Mr Daly brought the constitutional challenge against the Government in the High Court regarding the appointment of super junior ministers. The case challenges what Mr Daly says is a 'deeply problematic and unconstitutional practice that has taken root in recent decades'. He said: 'This case is a constitutional challenge aimed at protecting the integrity of our system of government under Bunreacht na hEireann with which Fianna Fail, Fine Gael and the Lowry-led Independents are playing fast and loose.'
BreakingNews.ie
07-07-2025
- Politics
- BreakingNews.ie
Court must avoid judiciary being dragged into super juniors ‘political contest'
The High Court ought to resist any attempt to bring the judiciary into a political contest being 'played as an away fixture', the court was told as it hears a challenge over the constitutionality of super junior appointments. The three-judge division of the High Court is hearing the case, brought by Sinn Féin TD Pa Daly, who is challenging the attendance of the so-called super junior ministers at Cabinet meetings. Advertisement On Monday afternoon, the Attorney General (AG) Rossa Fanning told the court that the Constitution does not forbid the attendance of super junior ministers while simultaneously allowing the attendance of the Secretary General and the AG. Attorney General Rossa Fanning. Photo: Niall Carson/PA. Mr Fanning, SC for the Government, said Mr Daly is asking the court to write in a new constitutional provisional that is 'simply not contained' in the text. He claimed that Mr Daly is asking the court to enter the 'political thicket' and to intervene in the inner workings of Government. He said that the court ought to resist the applicant's attempt to have the judiciary involved in a political contest being 'played as an away fixture down in the Four Courts'. Advertisement 'These proceedings are misconceived in a number of respects but there is one fundamental error on which they are premised,' Mr Fanning added. 'The error that affects this case is that he wrongfully conflates the attendance of government meetings with being a government minister on the other. 'The two concepts are entirely distinct. There is a significant difference in legal statutory powers and functions of government ministers on one hand and ministers of state on the other.' He added that statutory powers are delegated to ministers of state, and that the delegation is subject to the government ministers, which means, he added, that ministers of state remain under the supervision of senior ministers. Advertisement He added that the invitation of super junior ministers to Cabinet meetings is underpinned by legislation, and that Cabinet meetings are one element of government decision making. He added that government policy is not formed at Cabinet in any 'real sense' . 'It is the last stop in the government chain,' he added. Earlier the court was told that super junior ministers are acting as a 'collective authority' with ministers at Cabinet, in breach of the constitution. Advertisement Sinn Féin leader Mary Lou McDonald and Donegal TD Pearse Doherty were in court on Monday alongside Mr Daly. Mr Daly argues that Article 28 of the Constitution of Ireland limits the number of government members to 15. Sinn Féin are here today to challenge Fianna Fáil and Fine Gael blatant stroke politics. We believe they are playing fast and loose with the Constitution to grease the wheels of their grubby deal with Michael Lowry and load the Cabinet with so-called 'Super Junior' Ministers. Pa… — Mary Lou McDonald (@MaryLouMcDonald) July 7, 2025 The super junior ministers appointed include Fine Gael's Hildegarde Naughton, as well as Independents Sean Canney and Noel Grealish. Fianna Fáil's Mary Butler is also a minister of state attending Cabinet. Advertisement Senior government ministers are appointed by the president of Ireland on the advice of the taoiseach of the day, and with the approval of the Dáil. Super junior ministers are appointed by the government on the nomination of the taoiseach. Feichin McDonagh SC told the three judges that the legal basis of their appointment was exactly the same as the other ministers of state who do not attend Cabinet. He added that there is no legal basis for the appointment for 'ministers of state who regularly attend Cabinet'. 'That creature simply does not exist under legislation,' he added. He said he has queried with the respondents about what exactly is a minister of state who regularly attends government meetings. 'One would have thought following exchange of meetings there might be some consensus, but there does not appear to be a consensus,' Mr McDonagh said. He told the court it was not possible to address the issues unless the court knows what a super minister is. 'The designation of super junior by taoiseach was in some way an exercise of executive power of the state,' he added. He said it is suggested in the respondent's affidavit that there is an office called minister of state who regularly attends government, which Mr McDonagh said does not exist. He added that a decision to pay an allowance to super juniors does not change that position. 'Four super juniors now get an allowance and we challenge the provisions in that legislation to allow that,' he added. 'There is minister of state who is told by taoiseach they can regularly attend government (meetings) and if they come into that category they get 16,000 euro a year. 'But it is not an office, not enacted under the constitution and there is no underpinning to suggest that the office is being created.' He also queried the meaning behind the words under Article 4.1, in which it states that the Government shall meet and act as a collective authority. 'What does collective authority do? They meet and with the others (ministers) they collectively act. Who is acting collectively? It is the government along with the super junior ministers,' Mr McDonagh added. 'There will be government decisions taken and government acting collectively. 'In that scenario there are extra individuals who are there present in the counsel of chamber. They are taking a full role in the formulation and formation of government policy, thereby acting as a collective authority and there is no dispute between the parties as to that being what is happening. 'The government is formulating policy and taking countless decisions and undoubtedly purporting to act as a collective authority. 'You cannot unscramble that egg. If you have government meeting with super juniors speaking to perspective government decisions and a consensus is arrived at, that decision is no less than a government decision than one that has been voted on. 'That decision is arrived at following a process of mixing yolks to getting into scramble egg and that cannot be unscrambled.' Earlier, Ms McDonald said the Government has broken the rules. Speaking outside court, Ms McDonald said: 'This is a challenge to a Government who we believe have played fast and loose with the Constitution in a bid to secure a grubby deal with Michael Lowry and to retain office, Fianna Fail and Fine Gael, we believe are acting in defiance of the Constitution. 'There are four so-called super junior ministers who attend Cabinet. The Constitution, in our view, is very clear. The Cabinet amounts to 15 members, and we believe that the Government is breaking the rules. 'They've broken the rules because at all costs, Micheal Martin and Simon Harris wish to remain in government, so they cut this deal, as you know, with Michael Lowry, and we are here now to challenge that action and to seek clarity.' Mr Daly brought the constitutional challenge against the Government in the High Court regarding the appointment of super junior ministers. The case challenges what Mr Daly says is a 'deeply problematic and unconstitutional practice that has taken root in recent decades'. He said: 'This case is a constitutional challenge aimed at protecting the integrity of our system of government under Bunreacht na hEireann with which Fianna Fáil, Fine Gael and the Lowry-led Independents are playing fast and loose.'
