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Having 18 ministers at Cabinet is 'fairly obviously unconstitutional' and politically 'dubious'

Bunreacht na hÉireann states: “The Government shall consist of not less than 7 and not more than 15 members.”

President Michael D Higgins presents the new ministers with their Seal of Office, 27 June.
President Michael D Higgins presents the new ministers with their Seal of Office, 27 June.
Image: MAXWELLS

THE CONSTITUTIONALITY OF the government’s decision to have 18 ministers at the Cabinet table has been called into question, as Bunreacht na hÉireann states that there should be no more than 15 ministers at Cabinet.

Although this is not the first time that more than 15 ministers have been allowed to attend Cabinet, it has become a more common occurrence and questions have been asked more frequently on its political and legal basis.

There are 15 full Ministers in Cabinet; it is generally common for the chief whip to sit at Cabinet in addition to the usual 15 ministers, bringing the total number to 16.

There are also 20 ministers of State in this Government, known as ‘junior ministers’. Of these, three are ‘super junior’ ministers, meaning they attend Cabinet.

These three supers are Fianna Fáil’s Jack Chambers, who is chief whip, Fine Gael’s Hildegarde Naughten, Minister of State for roads, and Green Party Senator Pippa Hackett, a junior minister in the Department of Agriculture.

In the 30th government when Enda Kenny was Taoiseach, there were also 18 members at Cabinet – 15 full Ministers and three ‘super’ junior ministers: Regina Doherty as chief whip; Paul Kehoe as Minister of State for Defence; and Finian McGrath, who was Minister of State for Disability Issues.

After Leo Varadkar became Taoiseach in 2017, this rose to four ‘super’ junior ministers, with 15 full ministers at Cabinet.

The legal side: ‘Crystal clear’ and confidentiality

“Most of the time with constitutional law, there’s a great deal of ambiguity and it’s really unclear what the constitutional answer is,” says David Kenny, Assistant Professor of Law at Trinity College Dublin and co-author of the leading text on Irish constitutional law. 

“This is one of those ones where I think it’s very clear that there’s essentially no scope for having more than 15 members of government. The Constitution is crystal clear about that, there’s just no way to have more than that.”

Confidentiality is also enshrined in the Constitution, meaning that you can’t have non-Cabinet members involved in the deliberations of Cabinet.

Article 28.1 of Bunreacht na hÉireann states simply:

The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.

Article 28.4 alludes to the confidentiality and collective responsibility of Cabinet:

The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.
The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter.

Kenny continues: “So the question is how are these junior ministers both allowed to be subject to these confidential discussions and involved in these meetings, where only 15 people are supposed to collectively wield the executive power of the State?”

So I think it’s fairly obviously unconstitutional.

Although it may seem obvious, the case would still need to be taken to court to be proven as unconstitutional. However, it’s not immediately clear who would be best placed to challenge the government on this issue. 

It could be a member of the Dáil who is supposed to be holding the government to account or a member of the public, Kenny suggests.

In Kelly: The Irish Constitution, co-authored by Kenny, it states: “The constitutionality of appointing ‘super’ junior ministers – that sit at Cabinet but do not vote – has not been tested, and is certainly open to question. 

Either these ministers are members of Cabinet, violating the 15-member limit; or they are at the Cabinet table with no formal or official role, potentially violating the confidentiality of Cabinet discussions.

“This practice, if it is to continue, may require the amendment of the 15-member limit.”

The political side: will this practice continue? 

The first time a Minister of State other than the Chief Whip attended Cabinet was Pat Rabbitte in the Rainbow Coalition of Fine Gael, Labour, and the Democratic Left in 1994.

Rabbitte, who was a junior minister for commerce, science and technology and consumer affairs, was a member of the Democratic Left at the time. Proinsias De Rossa, who was the Democratic Left’s only full Minister at Cabinet.

“They wanted another voice in Cabinet so he wouldn’t be on his own,” Gary Murphy of DCU told TheJournal.ie. “And that’s where the super junior comes from. And I think it has been serially abused ever since.

I’ll give you a good example which is in 2017, where Leo, on his elevation as Taoiseach, dropped Mary Mitchell O’Connor [who was Minister for Jobs], and then gave her a kind of a consolation prize as super junior minister.

“And he gave her a choice – he wanted to appoint her to something in the legal field, but she wanted to do Higher Education. And there were four Super Junior ministers in that government.

I think what has happened is over the course of the last two-and-a-half decades since 1994, is the ‘super’ junior device has been used to assuage disappointed politicians by putting them at the Cabinet table without a vote.

He says that he’s “not convinced” that the three-way government warrants the extra super juniors. 

“I don’t see the benefit of having a fourth Green, I mean, obviously if I’m the Green Party and there’s a super junior in Fianna Fáil, a super junior in Fine Gael, well then you’re going to argue for a super junior as well,” Murphy says.

“I know why political parties like having more people in Cabinet – that’s where the power is divested in government.”

Although super junior ministers don’t have a vote at Cabinet, votes don’t happen often, and they can contribute fully and robustly, as Micheál Martin told the Dáil in relation to his deputy leader Dara Calleary, when he was appointed as Chief Whip.

“I’m sceptical, let’s put it bluntly, about the value of having super junior ministers in a Cabinet in a parliament of our size, of 160 TDs, 15 of them sit around the Cabinet table I’m not convinced why you need 18 or 19.”

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Murphy says he’s also sceptical about the requirement for super junior ministers and suggests that there should be 15 junior ministers to match the 15 full ministers.

“Bertie Ahern had 20 in 2007, Cowen dropped it down to 15, then it went back up again under Fine Gael, and it’s 20 now,” he said.

So there’s 20 junior ministers and there’s another 15 at Cabinet, so that’s 35 – that’s actually a third of the Dáil. I just think that, in a modern parliament, is slightly excessive.

But due to the fragmentation of politics, Murphy says that these types of coalitions are likely to become more frequent, and as a result, so may super juniors.

“Because of the fragmentation of our politics in terms of votes and in terms of seats, we’re going to get more of these types of coalitions, these coalitions of three-four perhaps into the future.

“And when the spoils of office are being distributed by the party leaders, you can see why they would happily use super juniors as a device to get people

I don’t think the public is wandering around to worried about junior ministers… But I think it’s dubious, to put it bluntly, to have so many people sitting around the Cabinet table who are not at Cabinet.

“I’m just not convinced this is in the spirit of the Constitution,” he says.

In a statement to TheJournal.ie, the Department of the Taoiseach said:
“The Constitution provides, in Article 28, for not more than 15 members of the Government to be appointed by the President.

In addition to the members of the Government, Cabinet meetings are attended by the Attorney General, the Secretary General to the Government, and certain Ministers of State. 

“There is no conflict with the provisions of the Constitution in this regard.”

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