High Court dismisses challenge to Government meetings allowing Super Junior Ministers participation. No constitutional breach found.

APPROVED

THE HIGH COURT

AN ARD-CHÚIRT

JUDICIAL REVIEW

Barniville P. Phelan J. Bradley J.

[2025] IEHC 729

Record No. 2025/110 JR

BETWEEN/

PATRICK DALY

APPLICANT

-AND-

AN TAOISEACH, GOVERNMENT OF IRELAND,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of the Court delivered on the 19th day of December 2025

CONTENTS

1. INTRODUCTION.....................................................................................................................4

2. PRELIMINARY OBSERVATIONS .......................................................................................5

3. SEPARATE JUDGMENTS .....................................................................................................8

4. THE PROCEEDINGS ..............................................................................................................9

5. THE EVIDENCE IN THE PROCEEDINGS .......................................................................15 (A) Grounding Affidavit of Deputy Patrick Daly ............................................................ 15 (B) Affidavit of Secretary General John Callinan .......................................................... 17 (C) Replying Affidavit of Deputy Daly ............................................................................ 23 (D) Affidavit of Former Minister of State John Halligan .............................................. 24 (E) Expert Evidence ........................................................................................................ 26

6. CONSTITUTIONAL PROVISIONS ...................................................................................28

7. STATUTORY PROVISIONS ................................................................................................34

8. CHRONOLOGY .....................................................................................................................38 (A) General ....................................................................................................................... 38 (B) General Election ........................................................................................................ 38 (C) Assembly of Dáil Éireann on 18th December 2024................................................... 39 (D) Election of Ceann Comhairle ................................................................................... 40 (E) Nomination of An Taoiseach .................................................................................... 41 (F) Appointment of Government ..................................................................................... 41 (G) Presidential Appointment and Seals of Office ......................................................... 45

9. SUMMARY OF SUBMISSIONS OF THE PARTIES ........................................................46

10. ANALYSIS AND DECISION ..............................................................................................57 (A) Justiciability .............................................................................................................. 57 (B) Constitutional Prescription: Whether the Rule of 15 Infringed .............................. 60 (C) Constitutional Interpretation and Clear Disregard .................................................. 67 (D) Application of interpretative principles in assessing the attendance and participation of Ministers of State at Government meetings ................................................................ 72

(i) The historical position......................................................................................73

(ii) Popular sovereignty .....................................................................................78 (E) No Express or Implied Infringement of Article 28................................................... 83 (F) Collective Responsibility ............................................................................................ 89 (G) Cabinet Confidentiality ........................................................................................... 123

11. SUMMARY OF CONCLUSIONS ....................................................................................129 APPEARANCES .......................................................................................................................133

1. INTRODUCTION

1. This is the judgment of the Court (Barniville P., Siobhán Phelan J. and Bradley J.) in these judicial review proceedings which have been brought by Deputy Patrick Daly, a member of Dáil Éireann for the Kerry constituency, pursuant to leave granted by the High Court (Gearty J.) on 29th January 2025.

2. In these proceedings Deputy Daly contends that the practice of allowing certain Ministers of State to regularly attend and participate in meetings of the Government breaches a number of fundamental provisions of the Constitution, specifically Articles 6, 13.2, 28.1, 28.4.1º, 28.4.2º and 28.4.3º.

3. Separate plenary proceedings have been brought by another member of Dáil Éireann, Deputy Paul Murphy, in which the same practice has also been challenged. While some of the same grounds of challenge have been advanced by Deputy Murphy in those proceedings, the focus of his case and the evidence adduced by and on his behalf in that case is somewhat different to the focus of and the evidence in Deputy Daly’s case.

4. Both cases were heard sequentially by the Court between 7th and 11th July 2025. We are grateful to the parties in the two cases for facilitating the expeditious and efficient hearing of the cases in that week.

5. The judgment of the Court in Deputy Murphy’s case is also being delivered today with the neutral citation [2025] IEHC 730. For convenience, the proceedings brought by Deputy Murphy will be referred to in this judgment as the “Murphy proceedings”.

6. Although we reach the same ultimate conclusions in the two cases, as noted, the evidence adduced and the submissions made in each case were not identical and, as a consequence, the treatment of the evidence and the analysis of the submissions are dealt with somewhat differently in the two judgments. For completeness, it is necessary that both judgments should be read together.

7. For the reasons set out in detail in this judgment and summarised at paragraphs 343 to 358 below, we are satisfied that Deputy Daly’s claims in the proceedings must fail and that his application for reliefs by way of judicial review must be refused.

2. PRELIMINARY OBSERVATIONS

8. Article 28 of the Constitution concerns the Government. Under Article 28.1 the Government shall consist of not more than fifteen members who shall be appointed by the President. The proper interpretation and application of this numerical restriction and whether it precludes attendance at, and participation in, Government meetings by persons other than one of the fifteen constitutionally appointed members of Government is at the heart of these proceedings.

9. This question arises because in addition to the fifteen Government members (including the Taoiseach) appointed in accordance with Article 28 of the Constitution, twenty-three members of the 34th Dáil currently stand appointed as Ministers of State following their appointment pursuant to s.1(1) of the Ministers and Secretaries (Amendment) (No. 2) Act 1977 (the “1977 Act”) and four Ministers of State regularly attend meetings of Government and are paid an additional allowance in respect of that attendance pursuant to s. 3A of the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998 (the “1998 Act”), as amended by various further pieces of legislation, including the Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 2025.

10. The four Ministers of State in question are Deputy Mary Butler (the Government Chief Whip) Minister of State with responsibility for Mental Health, Deputy Hildegarde Naughton was Minister of State with responsibility for Disability, Deputy Noel Grealish is Minister of State with responsibility for Food Promotion, New Markets, Research and Development and Deputy Seán Canney is Minister of State with responsibility for International and Road Transport, Logistics, Rail and Ports.

11. After the hearing of Deputy Daly’s application and before delivery of this judgment, on 19th November 2025, the Taoiseach announced the following changes for the information of the Dáil.

12. The Taoiseach stated that having informed the President that Dáil Éireann had approved his nomination of Deputy Hildegarde Naughton to be a member of the Government, the President had appointed her on 18th November 2025 and the Taoiseach had assigned Minister Naughton responsibility for the Department of Education and Youth.

13. Further, on 18th November 2025 the Taoiseach assigned the Department of Finance to the Tánaiste Simon Harris and the Department of Foreign Affairs and Trade and the Department of Defence to Minister Helen McEntee.

14. Also, on 18th November 2025, on the Taoiseach’s nomination, the Government appointed Deputy Emer Higgins to be a Minister of State at the Department of Children, Equality and Disability with special responsibility for disability. Minister of State Higgins would from then on replace Minister Naughton as a Minister of State invited to attend meetings of the Government. Additionally, on 18th November 2025, on the Taoiseach’s nomination, the Government appointed Deputy Frank Feighan to be Minister of State at the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation with special responsibility for public procurement, digitalisation and eGovernment.

15. Those changes noted, this judgment proceeds based on the situation which existed at the time of the hearing of this application.

16. The fundamental contention of these proceedings brought by way of judicial review and the separate plenary proceedings brought by Deputy Murphy, is that the practice of attendance at, and participation by, the relevant Ministers of State at meetings of the Government has been contrived to circumvent the “rule of 15” prescribed under Article 28.1 of the Constitution and is, therefore, unconstitutional.

17. Neither Deputy Daly (nor Deputy Murphy) has sought to challenge any particular or identified Government decision. In both cases, their stated focus is to ensure that the Government complies with the Constitution in its decision-making process and the reliefs pursued are consistent with this approach.

18. Indeed, insofar as both deputies challenge the constitutionality of s. 3A of the 1998 Act which provides for the payment of allowances to the relevant Ministers of State, in their proceedings, the challenge is contingent on the case made that it is not constitutionally permissible for such Ministers of State to regularly attend, and participate in, meetings of the Government. It is accepted that if there is no constitutional impediment to individuals other than Government Ministers attending and participating in meetings of the Government (in addition to those present in an administrative, advisory or support role), then it is not unconstitutional for the Oireachtas to provide for an amount of money to be paid to them for that purpose.

19. In summary, therefore, the context of the challenge brought by Deputies Daly and Murphy concerns the attendance and participation of persons at meetings of the Government, often referred to as the “Cabinet”, and focuses on the regular attendance and participation of the relevant Ministers of State. Nowhere in the 1937 Constitution is the word “Cabinet” used. Similarly, the phrase “Super Junior” has no constitutional or legislative foundation. We, in the main, use the terms “Super Junior Minister” or “relevant Ministers of State” to connote Ministers of State attending regularly at Government meetings.

3. SEPARATE JUDGMENTS

20. Notwithstanding any differences between these proceedings and the claims made in the Murphy proceedings, at their heart, the two cases raise the same fundamental issues, albeit with some different emphasis, through a different procedure and in reliance on different evidence. Because of the differences between the two cases, separate judgments are being delivered in each case. For common issues, however, to avoid unnecessary duplication, the judgment we deliver today in the Murphy proceedings should be read together with this judgment and reference is made to the judgment in Murphy, where considered appropriate.

4. THE PROCEEDINGS

21. Deputy Daly first raised concerns regarding the constitutionality of the practice of appointing Ministers of State to attend regularly at Government meetings in correspondence with the Office of the Taoiseach dated 27th July 2020. In this correspondence he stated that the Constitution precluded more than 15 members of Government participating in Government meetings. In a response received from the Taoiseach’s Office dated 31st July 2020, Deputy Daly was advised that “it has long been the practice that certain Ministers of State attend at Cabinet meetings. Their appointment is a matter for the Taoiseach and the Government of the day. There is no conflict with the provisions of the Constitution in this regard”.

22. There the matter lay until Deputy Daly reiterated his concerns, this time through his solicitor, in the context of the negotiations for the formation of the current Government, writing to the Taoiseach on 27th January 2025. In this letter he further advised of his intention to bring these proceedings.

23. By Order of the High Court (Gearty J.) made ex parte on 29th January 2025, Deputy Daly was given leave to challenge the attendance by Ministers of State at meetings of the Government arising from their designation by the Taoiseach and/or the Government as “Ministers of State attending Cabinet (or Government)” or as “Ministers of State who regularly attend meetings of the Government”, whether as of right or by permission, as being inconsistent with the provisions of the Constitution and in particular Articles 6, 13.2, 28.1, 28.4.1°, 28.4.2° and/or 28.4.3° thereof.

24. Deputy Daly also obtained leave to challenge the constitutionality of s. 3A of the 1998 Act (as further amended by section 2 of the Ministers and Secretaries and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 2025 (the “2025 Act”)). The 2025 Act amended s. 3A(1)(a) by the substitution of “not more than 4 specified holders of the office of Minister of State who regularly attend meetings of the Government” for “not more than 3 specified holders of the office of Minister of State who regularly attend meetings of the Government”.

25. A Statement of Grounds was served and the Respondents’ Opposition papers were filed on 18th March 2025.

26. A preliminary objection was raised on justiciability grounds, in which it was contended that the exercise of the executive power of the State in relation to the operation of Government, including meetings of the Government, fell within the powers of the Government under Article

28 of the Constitution and, accordingly, was not justiciable. It was further contended that Deputy Daly had failed to plead any facts suggesting a clear disregard of the Constitution in the exercise of the executive power of the State.

27. Thereafter, the Respondents relied, inter alia, on the text of the identified constitutional provisions and asserted compliance with the constitutional requirements as regards the appointment of members of the Government. It was pleaded that there is no provision in the Constitution prescribing requirements relating to meetings of the Government and no provision of the Constitution which regulates attendance at Government meetings. Express reliance was placed on Article 28.12 permitting the organisation and distribution of business amongst Departments of State to be regulated by law and the provisions of the Ministers and Secretaries Acts 1924 to 2020 (the “1924 Act”) and the Public Service Management Act 1997 (the “1997 Act”).

28. Reliance was also placed on a long-standing practice dating back to the appointment of attendees at meetings of Government by persons who were not members of Government from in or about 1919. This practice involved the appointment of paid “Assistant Ministers”, “Substitute Ministers”, “Directors”, “Substitute Directors” and “Acting Ministers”. It was stated that persons appointed to such positions as “Assistant Ministers” until 1922 were appointed on an ad hoc basis and did not have charge of a Department of State.

29. In addition, the Respondents relied on a series of statutory provisions to support the point that Ministers of State, including the relevant Ministers of State, are creatures of statute who fill a ministerial role that has a status below that of a Minister/member of the Government. It was more specifically pleaded that between 1922 and 1977 “Parliamentary Secretaries” were appointed by the Government, in the period between 1922 to 1937, on the nomination of the President of the Executive Council, and in the period after 1937, by the Taoiseach under s. 7 of the 1924 Act and attended at meetings of the Government. It was further pleaded that from 1978, Ministers of State have been appointed by the Government on the nomination of the Taoiseach under s. 1 of the 1977 Act. Reliance was also placed on s. 2 of the 1977 Act (as amended).

30. Other statutory provisions pleaded with particularity in opposition included provisions of the 1997 Act (notably ss. 3, 4 and 11) and provisions of the 1998 Act (as amended) whereby provision is made for the payment of allowances to persons who hold specified positions including a specified number of Ministers of State who regularly attend meetings of the Government.

31. Central to the opposition pleaded was the contention that Deputy Daly was conflating the role of members of Government within the meaning of Article 28.1 of the Constitution with the role of the relevant Ministers of State. Distinctions between the two highlighted in the opposition papers, included:

(i) Members of the Government are provided for by the Constitution, whilst Ministers of State have powers and functions conferred upon them by statute.

(ii) Members of the Government are appointed by the President on the nomination of the Taoiseach, and their appointment can be terminated by the President, on the advice of the Taoiseach. Ministers of State are appointed by the Government on the nomination of the Taoiseach. They may be removed at any time by the Government, on the recommendation of the Taoiseach.

(iii) Members of the Government must have their nomination approved by Dáil Eireann. That is not the case for any Minister of State.

(iv) Members of the Government are appointed by Warrant of Appointment and receive a seal of office. This is not the case for any Minister of State.

(v) Only members of Government may have charge of a Department of State. By contrast, Ministers of State are merely the recipients of the powers and duties delegated to them, which functions, furthermore, are subject to superintendence by the member of the Government having charge of the relevant Department.

(vi) Only members of the Government have a constitutional right of audience. In respect of Ministers of State this is something which each House has chosen to regulate by Standing Orders, but which could be removed or altered in the event that either House amended its Standing Orders (which requires only a simple majority).

(vii) Members of the Government may not be excluded from a meeting of the Government. That is not the case regarding Ministers of State.

(viii) Only members of the Government have a vote at meetings of the Government, in the event that this arises.

(ix) Members of the Government are consulted as part of incorporeal meetings of the Government. Ministers of State are not.

(x) Members of the Government bring Memoranda to Government. Ministers of State do not.

(xi) Members of the Government may be formally circulated with draft Memoranda for Government for their observations thereupon, which observations are then recorded on the relevant Memoranda for Government in advance of the meeting of the Government. Ministers of State have no entitlement to be consulted with respect to, or to have their observations recorded on, a Memorandum for Government in advance of the meeting of the Government.

32. Deputy Daly’s claim that the attendance of the relevant Ministers of State at meetings of the Government, or the disclosure of related briefing materials to the relevant Ministers of State – which are also disclosed, as a matter of course, to a range of civil servants involved in their preparation and circulation – is inconsistent with the obligation on members of the Government to act and meet as a collective authority, with the principle of collective responsibility, and with the constitutional requirement that the Government is responsible to Dáil Éireann, was also fully contested by the Respondents.

33. It was pleaded on behalf of the Respondents that the ability of the Government to engage in full, frank and free discussions, as between members of the Government, insofar as this is required by the principle of collective responsibility, is fully protected by the guarantee of the confidentiality of discussions at meetings of the Government under Article 28.4.3° of the Constitution. Collective responsibility, it was pleaded, is given expression in the context of responsibility for the Departments of State as administered by members of the Government. While individual members of the Government may have statutory responsibility for different Departments of State (i.e. Government Departments), the Government as a whole, headed by the Taoiseach, is collectively responsible under the Constitution for these Departments. It was argued that attendance, on a regular basis, by the relevant Ministers of State at meetings of that Government does not undermine or give rise to any infringement of that principle.

34. As regards the alleged breach of cabinet confidentiality, the Respondents asserted that members of the Government are bound by obligations of confidentiality under Article 28.4.3° of the Constitution, and that Ministers of State, who are not members of the Government, but who attend meetings of the Government, whether on a regular basis or not, are also so bound, as the obligation to respect cabinet confidentiality is framed in general terms; it is an obligation of general application and not one restricted to members of the Government alone. It was stated that at the time the Seventeenth Amendment to the Constitution was approved by the People, on 30th October 1997, the practice of persons other than members of the Government attending meetings of the Government, including the Attorney General, the Chief Whip and the Secretary to the Government, was well established, and the practice of Ministers of State regularly attending meetings of the Government had been ongoing since 1994, upon the formation of the 24th Government (15th December 1994 to 26th June 1997). The Respondents contended that there is nothing in the text of Article 28.4.3° of the Constitution, as inserted by the People, that indicates any intention to alter that practice, so that only members of Government would be permitted to attend meetings of the Government.

35. The evidence in these proceedings was provided in the affidavits of the various deponents. None of the deponents were sought to be cross-examined on their affidavits and there was a large measure of agreement between the parties on the factual context. This contrasts with the position in the Murphy proceedings where witnesses gave oral evidence and were crossexamined.

5. THE EVIDENCE IN THE PROCEEDINGS

(A) Grounding Affidavit of Deputy Patrick Daly

36. The proceedings were grounded in the first instance upon an affidavit sworn by Deputy Daly in his capacity as a TD for the Kerry constituency since 2020 and a practising solicitor. In grounding these proceedings Deputy Daly referred specifically to comments made by the Regional Independent convenor Deputy Michael Lowry as reported in The Irish Times on 25th January 2025 wherein he reportedly referred to details of the newly approved Government deal between his group and the Fianna Fáil and Fine Gael parties, in which Deputy Lowry stated:

“We’re in this for five years. We are in it for five budgets…the two super junior ministers Seán Canney and Noel Grealish, those two gentlemen will sit at the cabinet table, will have access to all cabinet papers, contribute at cabinet, and Seán will attend all of the leaders’ meetings on our behalf.”

37. Deputy Daly confirmed his belief that the regular attendance of those and other Ministers of State at Government meetings, with prior access to all Memoranda for Government and the untrammelled right to contribute (but not vote) at Government meetings, is unconstitutional. It was also his stated belief that the comments of Deputy Lowry suggested that there would be an ongoing and clear disregard for cabinet confidentiality and the collective responsibility of Government.

38. Deputy Daly also relied on an article written by the former Taoiseach, Leo Varadkar, in The Sunday Times on 26th January 2025, in which he is reported as referring to the Constitution tying the Government’s hands in limiting the number of “Senior Ministers” to 15, and as observing as follows:

“…When I was [T]aoiseach, I tried to get around the “rule of 15” by creating three super-junior ministries with real and clearly defined responsibilities...At cabinet, they were treated as equals, had a full set of advisers and brought their own memos for decisions. The fact that they didn’t have a vote doesn’t matter – there haven’t been votes at cabinet for decades….”

39. In the same newspaper article, former Taoiseach Varadkar is reported to have suggested that it might be time to amend the Constitution by referendum to allow for the number of Senior Ministers to increase to permit “dedicated senior ministers for defence, disability, culture and children”.

40. Deputy Daly observed that the current practice appeared “anti-democratic” and he was concerned about “the significant financial benefit that is obtained by affected Ministers [of] State and whether this amounts to a misappropriation of public funds”.

(B) Affidavit of Secretary General John Callinan

41. The Statement of Opposition was grounded on facts verified in the Affidavit of John Callinan, Secretary General to the Government and in the Department of the Taoiseach since May 2022 and a civil servant working in the Department of the Taoiseach since 1998, acting as Assistant Secretary General at the Department of the Taoiseach since 2007 and the Second Secretary General at the Department of the Taoiseach since 2016.

42. In his affidavit, Mr. Callinan set out in evidence the practice of the Government in relation to the operation of meetings including meetings of the Government.

43. Under separate headings Mr. Callinan addressed various matters in relation to the appointment of members of the Government (including the ceremony at Áras an Uachtaráin whereby replica seals are presented to members of the Government by the President), the appointment of the Attorney General (who is not a member of Government), the appointment of Ministers of State including Super Junior Ministers, and the first meeting of a new Government at Áras an Uachtaráin.

44. Mr. Callinan described in some detail the custom and practice whereby the deputy, who is nominated as Minister of State at the Department of the Taoiseach with responsibility as Government Chief Whip, accompanies the Taoiseach and the deputies nominated to be members of Government to Áras an Uachtaráin. He made the point that none of the persons who are to be nominated as Ministers of State are appointed by the President. No warrant of appointment is signed in respect of such persons and they do not receive seals of office. He confirmed that they are usually introduced to the President as a courtesy, after the members of the Government have been appointed, and they are also invited as a courtesy to join the assembled members of Government and the Attorney General for the traditional photograph with the President which is generally taken in advance of the first meeting of the new Government.

45. Mr. Callinan further confirmed that Ministers of State, including the relevant Ministers of State, are nominated by the Taoiseach and are appointed by the Government (and not by the President). The Dáil does not vote to approve their nomination by the Taoiseach in contrast to the position which applies in relation to those deputies nominated as members of the Government (Senior Ministers).

46. In the case of the proposed Chief Whip and those deputies proposed to be Super Junior Ministers, by invitation of the Taoiseach, they attend at the first Government meeting held customarily at Áras an Uachtaráin on the evening that the 14 members of the Government receive their seals of office. Mr. Callinan confirmed that the proposed Super Juniors of the 35th Government were appointed by Government decision on 23rd January 2025 and attended as deputies, by invitation of the Taoiseach, at the meeting of Government which appointed them that evening at Áras an Uachtaráin.

47. In his affidavit, Mr. Callinan addressed in some detail the preparations for meetings of the Government distinguishing between regular or “in person” meetings (attended by relevant Ministers of State) and incorporeal meetings (only attended by Ministers/members of the Government).

48. As regards Memoranda for Government, he confirmed that Memoranda for meetings can be submitted only by Ministers of the Government and cannot be submitted by Super Junior Ministers or any Ministers of State. He distinguished between Memoranda for Information and Memoranda seeking a Government decision and confirmed that draft Memoranda are not formally circulated to Super Junior Ministers, or to any Ministers of State and they have no entitlement to be consulted on draft Memoranda and have no power to make observations on such drafts, a practice which Mr. Callinan says reflects the fact that Ministers of State have no role in formal decision-making by the Government.

49. In the ordinary course, Mr. Callinan confirmed that all final and concluded Memoranda are circulated to all members of the Government in advance of Government meetings and to the relevant Ministers of State, as well as to the other persons who regularly attend meetings of the Government, for their information, so that they can be considered in advance of Government meetings.

50. Mr. Callinan also addressed what is known as eCabinet, which is the Government IT system. It is how Memoranda are submitted to the Government Secretariat for inclusion on the Government Agenda.

51. Mr. Callinan confirmed that there are a number of different levels of access on eCabinet. The level of access determines whether a user of eCabinet can create, edit or review draft Memoranda. He confirmed that only members of Government may bring Memoranda to Government meetings and only members of Government responsible for relevant departments have draft Memoranda circulated to them. Ministers of State, irrespective of whether they regularly attend meetings of Government, are not entitled to be consulted on draft Memoranda or make observations on them and there is no facility for them to do so.

52. Insofar as the preparations for meetings of the Government are concerned, Mr. Callinan summarised the differences between Ministers/members of the Government and Ministers of State as follows:

(a) Only members of Government can bring Memoranda to Government.

(b) Ministers of State, irrespective of whether they regularly attend meetings of Government or not, have no entitlement to bring Memoranda to Government and there is no facility for them to do so.

(c) Only members of Government responsible for relevant Departments of State, and the Attorney General where legal input is required, have draft Memoranda formally circulated to them. Ministers of State, irrespective of whether they regularly attend meetings of Government or not, are not entitled to be consulted on draft Memoranda.

(d) Only members of Government, and the Attorney General where legal input is required, may make observations on draft Memoranda, and have those observations included in the finalised and concluded Memoranda, for the purpose of discussion at a meeting of the Government.

(e) Ministers of State, irrespective of whether, they regularly attend meetings of Government or not, are not entitled to make observations on a draft Memorandum which are to be included in the finalised concluded Memorandum and there is no facility for them to do so.

(f) Ministers of State who regularly attend meetings of Government, together with other persons who regularly attend meetings of Government, are provided with a copy of the finalised and concluded Memorandum as included on the agenda by the Cabinet Secretariat for their information prior to Government meetings. However, this is not for the purpose of making observations on a Memorandum and it does not entitle those persons to input into a Memorandum.

53. Mr. Callinan proceeded in his affidavit to address attendance at meetings of Government, confirming that, in general, the Government meets once a week in the Council Chamber in Government Buildings - on Tuesday mornings when the Dáil is in session, whilst meetings are commonly held on Wednesdays in weeks that the Dáil is in recess. Mr. Callinan addressed attendance by the Chief Whip, the Secretary General to the Government, by the Attorney General, by the relevant Ministers of State, by other Ministers of State and by other persons (including senior government officials to assist with technical or dynamic issues). In addition, Mr. Callinan described the 12 Cabinet Committees established by the Government which are committees established to assist the Government in carrying out its responsibilities. Finally, he addressed the range of measures in place to safeguard cabinet confidentiality (legislative and practical).

54. The exhibits to Mr. Callinan’s affidavit included the following:

(i) a copy of the voted Dáil Resolution from 23rd January 2025 nominating the members of the 35th Government of Ireland, signed by the Ceann Comhairle;

(ii) the Warrant of Appointment signed by the President, which lists the members of the Government other than the Taoiseach under Article 13.1.2° of the Constitution, bearing the President’s Seal affixed and countersigned by the Taoiseach;

(iii) the instruments signed by the Taoiseach nominating the Tánaiste pursuant to Article 28.6.1° of the Constitution and assigning Ministers to their respective Departments of State under the Ministers and Secretaries (Amendment) Act 1946;

(iv) the separate Warrant of Appointment of the Attorney General, prepared and transmitted by the Secretary General to the Government for the signature and seal of the President (and countersigned by the Taoiseach), together with the signed instrument from the Taoiseach nominating the individual to be appointed as Attorney General;

(v) the Government decision, dated 23rd January 2025, in respect of the appointment of the relevant Ministers of State (that is, the Super Junior Ministers);

(vi) the Government decisions, dated 29th January 2025 and 25th February 2025, in respect of the appointment of the remaining nineteen Ministers of State;

(vii) a copy of the Cabinet Handbook contained in the pack provided to attendees at the first Government meeting;

(viii) copy extracts of Standing Orders of Dáil Éireann and Seanad Éireann providing for a right of attendance and audience for Ministers of State and the Attorney General (contrasting with rights of audience which vest in members of Government under Article 28.8 of the Constitution);

(ix) a table prepared from meeting records showing the attendance of (a) Ministers of State other than those regularly attending at Government meetings and (b) other persons during the period from 1995-2021; and

(x) documents confirming attendance by various persons at meetings other than the members of the Government, including the Attorney General, the Secretary to the Government and the Chief Whip in the period pre-1994, including Jack Lynch TD on occasions during the 1951-1954 period when he was a Parliamentary Secretary, John O’Donovan TD attending Government meetings as Parliamentary Secretary to the Government in 1954, attendance by Brendan Corish TD at meetings of the Government as a Minister of State when required and regular attendance by Alexis Fitzgerald, by invitation of the then Taoiseach, Dr. FitzGerald, as Special Adviser to the Government, in 1981.

(C) Replying Affidavit of Deputy Daly

55. In a replying affidavit filed on 16th April 2025, Deputy Daly focused some attention on certain wording in Mr. Callinan’s Affidavit which he stated should be taken as acknowledging the following:

“Although Draft Memorandums are not formally circulated to Ministers of State who regularly attend meetings of the Government they are informally circulated; Although…[such] Ministers of State...have no entitlement to be consulted on draft Memorandums, they are in practice consulted; Although… [such] Ministers of State have no power to make observations on draft Memorandums, they in practice are allowed do so. [Such] Ministers of State have no role in formal decision-making by the Government, but they informally are involved, but do not have a vote.”

56. He pointed to the contradiction between the contention that Ministers of State do not bring Memoranda to Government with the statement of former Taoiseach Leo Varadkar in the previously exhibited article published in The Sunday Times on 26th January 2025.

57. Regarding the reference to the practice in the United Kingdom in the Respondents’ Opposition papers, Deputy Daly pointed out that the constitutional context in Ireland since independence is substantially different from that in the UK with principles relating to Cabinet Government in the UK largely resting on convention.

58. To illustrate the differences, he exhibited a copy of a UK House of Commons Library briefing paper of 14th November 2016 (No. 7755) entitled “Collective responsibility” and referred to the Ninth Report of Session 2009-10 of the UK House of Commons Public Administration Select Committee of 16th March 2010 (HC 457) entitled “Too Many Ministers?” (the “House of Commons Report”). He further exhibited a copy of a House of Commons Library paper of 6th August 2021 (No. 03378), entitled “Limitations on the number of Ministers”, the Review of Intelligence on Weapons of Mass Destruction of 14th July 2004 (HC 898) (the “Butler Review”) and The Report of the Iraq Inquiry: Executive Summary of 6th July 2016 (HC 264) (the “Chilcot Report”).

59. Deputy Daly articulated a concern that, if left unchecked, potential future similar amendments to the 1998 Act could conceivably see the sanctioning of payments to any number of persons who had received an invitation from the Taoiseach to attend meetings of Government.

(D) Affidavit of Former Minister of State John Halligan

60. Deputy Daly also relies on an affidavit sworn by Mr. John Halligan on 14th April 2025. Mr. Halligan is a retired politician and former Minister of State at the Department of Education and Skills and at the Department of Jobs, Enterprise, and Innovation.

61. Mr. Halligan sought to clarify that insofar as he attended at meetings as a Minister of State, those meetings should not be characterised as meetings of the Government but rather meetings “with” the Government. He explained that his involvement was limited. On the particular occasions listed in the document exhibited by Mr. Callinan confirming his attendance at Government meetings, Mr. Halligan stated he was present to meet with and brief the Government on particular issues, having been invited to a meeting with the Government in order to provide a report or a synopsis on developments in respect of one of his portfolios or in an area in which he had a particular interest, including, for example, a proposal for increased investment in a particular area.

62. Mr. Halligan clarified, for example, that his attendance on 24th April 2018 (as referred to in the table exhibited by Mr. Callinan) was for the purposes of briefing the Government on the accession by Ireland to the Convention establishing a European Organisation for Astronomical Research in the Southern Hemisphere and explained a number of other recorded attendances by stating the purpose of the particular attendance. He confirmed that on each occasion on which he attended for a meeting, he waited in the anteroom to the cabinet room and when the item upon which his input was requested came up, he was invited into the cabinet room. While in attendance he then addressed the issue and the relevant Memorandum, if there was one, for which he had responsibility (signed off on, however, he acknowledged, by his “Senior” Minister). He added that while present he tried to assist with explanations and, if relevant, options, and answered any questions. When he had addressed matters to the satisfaction of those present, who included both Senior Ministers and Super Juniors, he withdrew from the meeting.

63. Mr. Halligan confirmed, that in his experience, his position was different to that of the Super Juniors present who interacted with him, including by posing questions, in a manner identical to the members of the Government. They remained at the meeting and, he said, “presumably discussed all the other Agenda Items including what, if any, steps it would be appropriate to take in respect of a particular Agenda Item and to take decisions on same”. Unlike the Super Juniors, he stated that he did not remain for any discussion or for the decision. His understanding was that the Super Juniors were clearly there, and understood to be there, not just to address agenda items for which they might have had a particular responsibility, but to discuss all agenda items and contribute to the reaching of conclusions on all those items.

(E) Expert Evidence

64. Expert evidence was led on behalf of both parties, whose experts exhibited reports to their respective affidavits.

65. Deputy Daly relied on a report from Professor Muiris MacCarthaigh of the School of History, Anthropology, Philosophy and Politics, Queen’s University Belfast.

66. The Respondents relied on reports from Professor Eunan O’Halpin, (retired) Professor of Contemporary Irish History, Dr. Eoin O’Malley, Associate Professor in Political Science and Professor Andrew Blick, Professor of Politics and Contemporary History at the School of Politics & Economics, King’s College London. The Respondents’ expert evidence mirrored the evidence also offered by the Defendants in the Murphy proceedings. This evidence is more fully summarised in our separate judgment in respect of the Murphy proceedings and it is not considered necessary to deal with it in any detail for the purpose of this judgment.

67. In summary, however, the expert evidence addressed, inter alia, the historic practice from 1922 onwards as to who has attended Cabinet other than Ministers/members of the Government, the growth in the size of government and the number of ministries in Ireland and other jurisdictions in modern times; the political circumstances in Ireland and Europe at the time of the entering into force of the Constitution in 1937; the comparative practice of junior ministers and others attending meetings of government in other jurisdictions, more specifically the practice in the UK up to 1922, between 1922 and 1937 (and the contemporary practice in the UK of persons other than Cabinet members attending Cabinet); Cabinet Committees and the political consequences for Government in Ireland of Articles 28.1 and 28.4.2º of the Constitution.

68. It suffices for present purposes to record that there is ample historical precedent in Ireland for the presence of non-Government members at Government meetings. This practice is also apparent from UK Cabinet practices pre-dating 1922 and since then. There are also precedents in Irish practice dating back to the foundation of the State, albeit the appointment of Pat Rabbitte TD in the 1990s appears to have been the first occasion in which a role for a Minister of State attending regularly at meetings of the Government formed part of negotiations for Government formation.

69. The expert evidence further determined that in Ireland, the requirements of public administration have expanded considerably over the past 60 years. Government departments have grown from 13 in 1960 to 18 today (with approximately 108 agencies and 31 local authorities). Furthermore, most western democracies have seen a growth in ministerial numbers, albeit numerical restrictions in countries identified are fixed by statute rather than in a constitution.

70. Practices differ between countries surveyed in the expert evidence as to whether junior ministers attend regularly or selectively and whether they enjoy a vote at Government or Cabinet meetings or not.

6. CONSTITUTIONAL PROVISIONS

71. The numerical restriction contained in Article 28.1 of the Constitution does not stand alone and operates within a broader constitutional and legislative framework which it is appropriate to consider before addressing more fully the issues arising in these proceedings.

72. Article 5 of the Constitution declares Ireland a sovereign, independent, democratic State. Democratic sovereignty is seen as being derived from the People, who grant authority to government through democratic processes.

73. Article 6 of the Constitution provides that all powers of government, legislative, executive and judicial, derive, under God, from the People. It further provides that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution.

74. Article 13 deals with the role of the President in Government formation. Under Article 13.1.1º the President is required (“shall”), on the nomination of Dáil Éireann, to appoint the Taoiseach as head of the Government. The Constitution thereby recognises the pre-eminent position or status of the Taoiseach as the head of the Government, or Prime Minister, using the language of Article 28.5.1º of the Constitution.

75. It is the Taoiseach who nominates the other members of the Government, albeit with the previous approval of Dáil Éireann, for appointment by the President. Article 13.1.2° of the Constitution provides:

“The President shall, on the nomination of the Taoiseach with the previous approval of Dáil Éireann, appoint the other members of the Government.”

76. Accordingly, membership of Government requires both the approval of Dáil Éireann and appointment by the President.

77. Articles 15 to 27, inclusive, deal with the exercise, through the Oireachtas, of the legislative powers of the State, distinguishing in so doing between the powers of the two Houses of the Oireachtas: Dáil Éireann and Seanad Éireann.

78. Articles 16 and 17 concern Dáil Éireann. Article 16 provides for a right to vote regulated in accordance with law. The composition of Dáil Éireann is regulated by Article 16.2 which requires that elected members represent constituencies with a constitutionally prescribed maximum and minimum number of voters in a manner designed to ensure that the ratio between the number of members elected at any time for each constituency and the population of each constituency is, as far as it is practicable, the same throughout the country. Article 16.2.5º provides for a system of proportional representation by means of a single transferable vote. Each representative in the assembly is mandated by a roughly equal number of voters and all votes have equal weight.

79. Article 17.1.1º requires Dáil Éireann to consider the Estimates of the Receipts and Estimates of Expenditure of the State as soon as possible after presentation by the Government. Article 17.2 prohibits Dáil Éireann from passing any vote, resolution or law for the appropriation of public moneys unless recommended by a message from the Government signed by the Taoiseach. In addition, Article 28.4.4º requires the Government to prepare Estimates of the Receipts and Estimates of Expenditure of the State for any given year and present them to Dáil Éireann for consideration. Furthermore, Article 29.5.2º requires Dáil approval for any international agreement involving a charge on public funds.

80. Central to the issues for determination in these proceedings, Article 28 provides for the establishment of Government to exercise the executive powers of the State. The English language version of Article 28.1 of the Constitution states:

“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.”

81. The Irish language version of Article 28.1 of the Constitution states:

“Mórsheisear ar a laghad, agus cúig dhuine dhéag ar a mhéid, líon comhaltaí an Rialtais, agus is é an tUachtarán a cheapfas na comhaltaí sin de réir forálacha an Bhunreachta seo.”

82. This is translated in literal terms by Ó’Cearúil, Bunreacht na hÉireann: A Study of the Irish Text (The All-Party Oireachtas Committee on the Constitution, Stationary Office, 1999) as:

“The complement of members of the Government is at least seven (people), and at most fifteen people, and it is the President who will appoint those members in accordance with the provisions of this Constitution” (at p. 402).

83. Under Article 28.2 it is provided that the executive power of the State shall, “subject to the provisions of this Constitution, be exercised by or on the authority of the Government”. In the Irish version, it is made clear “is é an Riaghaltas oibreochas, nó is le húghdarás an Riaghaltais a oibreochar, cumhacht chomhallach an Stáit” referrable in its literal terms to the operation or exercise of power by the State or with its authority.

84. Government accountability to the Dáil is provided for in Article 28.4.1º and the codification of collective responsibility is contained in Article 28.4.2º.

85. The textual codification of cabinet confidentiality came later, as a consequence of Attorney General v. Hamilton (No. 1) [1993] 2 I.R. 250 (hereinafter “Hamilton (No. 1)”), in what is now Article 28.4.3º, after the amendment contained in the Seventeenth Amendment of the Constitution Act which inserted that provision into the Constitution.

86. Accordingly, Article 28.4.1º of the Constitution states:

“The Government shall be responsible to Dáil Éireann.”

87. Article 28.4.2° provides:

“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.”

88. The Irish language version of Article 28.4.2° states:

“I gcomhúdarás a thiocfaidh an Rialtas le chéile agus a ghníomhóid, agus táid go léir le chéile freagrach sna Ranna Stáit a riartar ag comhaltaí an Rialtais.”

89. This is translated in literal terms by Ó’Cearúil (supra), at page 415 as:

“It is in joint authority that the Government will come together and will act, and they are all together responsible for the Departments of State that are administered by members of the Government.”

90. Article 28.4.3° of the Constitution provides that:

“…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 – (i) in the interests of the administration of justice by a Court, or (ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance”.

91. Article 28.7.2° provides:

“The other members of the Government must be members of Dáil Éireann or Seanad Éireann, but not more than two may be members of Seanad Éireann.”

92. The Taoiseach has authority under Article 28.9.4º to request a member of Government to resign and where the member does not comply with the request, the President is required to terminate his appointment at the Taoiseach’s request. Under Article 28.10 the Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann. By virtue of Article

28.11 the resignation of the Taoiseach results in the deemed resignation from office by the other members of Government.

93. Under Article 28.12, the Constitution provides that the following matters shall be regulated in accordance with law:

“…the organization of, and distribution of business amongst, Departments of State, the designation of members of the Government to be the Ministers in charge of the said Departments, the discharge of the functions of the office of a member of the Government during his temporary absence of incapacity, and the remuneration of members of Government”.

94. Article 30 of the Constitution provides for the office of Attorney General who is the legal adviser to the Government and is vested with distinct functions under the Constitution. The Attorney General is appointed by the President on nomination of the Taoiseach. Prior Dáil approval is not required. The Attorney General holds office at the will of the Taoiseach alone. Article 30.4 provides that the Attorney General shall not be a member of the Government, but Article 30 does not preclude the Attorney General from membership of the Oireachtas.

7. STATUTORY PROVISIONS

95. The 1924 Act initially provided for the establishment of 11 Departments of State (s. 1) to be headed by Ministers who, by virtue of s. 2, are corporations sole with perpetual succession and an official seal. Section 5 prescribes that nothing in the Act derogated from the collective responsibility of the Executive Council notwithstanding that members of the Executive Council may be appointed individually to be Ministers, heads of particular Departments of State.

96. Section 1(1) of the 1977 Act as originally enacted provided as follows:

“The Government may, on the nomination of the Taoiseach, appoint not more than 10 persons, who are members of either House of the Oireachtas, to be Ministers of State at Departments of State and may at any time, on the recommendation of the Taoiseach, remove a Minister of State so appointed.”

97. Pursuant to s. 1(1) of the 1977 Act as most recently amended by s. 1 of the 2025 Act, the maximum number of Ministers of State is currently set at twenty-three. Section 1(3) of the 1977 Act provides that if the Taoiseach at any time resigns from office, a Minister of State shall be deemed also to have resigned from office but shall continue to carry on his duties until the successor of the Taoiseach is appointed.

98. The 1977 Act does not purport to confer a right, duty or entitlement on Ministers of State to attend and take part in meetings of the Government. However, until 1977 when the Interpretation Act 1937 was amended by s. 4 of the 1977 Act, under paragraph 18 of the Schedule to the 1937 Act, the expression “Minister of State” was to be construed as meaning a member of the Government having charge of a Department of State. Section 4 of the 1977 Act amended paragraph 18 to provide that the expression “Minister of the Government” means a member of the Government having charge of a Department of State. With effect from 1977, therefore, a Minister of State was no longer to be construed as being a member of Government or as having charge of a Department of State.

99. Section 2 of the 1977 Act sets the parameters for the delegation of powers and duties of Ministers of the Government to Ministers of State by the Government, on request of a Minister of the Government. Section 2 provides as follows:

“2.— (1) It shall be lawful for the Government, by order made on the request of a Minister of the Government, to delegate to a Minister of State assigned to the Department of State of which the Minister of the Government has charge all the powers and duties of such Minister of the Government under any particular Act or any particular statutory power or duty of such Minister of the Government.

(2) The following provisions shall apply and have effect in relation to a delegation to a Minister of State under this section, that is to say:—

(a) the Government may at any time revoke the delegation either at the request of the Minister of the Government on whose request it was made or without any such request, (b)the delegation shall terminate on the happening of either or both of the following events, that is to say, the Minister of the Government on whose request such delegation was made ceasing (otherwise than by a resignation from office to which Article 28.11.1° of the Constitution refers) to be the Minister of the Government to whose powers and duties the delegation relates or the Minister of State to whom the delegation was made ceasing to be Minister of State assigned to the Department of State of which the said Minister of the Government has charge,

(c) the delegation shall operate, so long as it continues in force, to confer on and vest in the Minister of State to whom it is made each of the statutory powers and duties delegated by the delegation,

(d) every statutory power and duty delegated by the delegation shall be exercisable and performed by such Minister of State in his own name but subject to the general superintendence and control of the Minister of the Government on whose request it was made and subject to any conditions or restrictions stated in the delegation,

(e) every statutory power or duty delegated by the delegation shall, notwithstanding the delegation, continue to be vested in the Minister of the Government on whose request the delegation was made but shall be so vested concurrently with such Minister of State and so as to be capable of being exercised or performed by either such Minister of the Government or such Minister of State, and

(f) the delegation shall not remove or derogate from the responsibility of the Minister of the Government on whose request it was made to Dáil Éireann or as a member of the Government for the exercise or performance of the statutory powers and duties thereby delegated.”

100. Accordingly, Ministers of State, as created by the 1977 Act, are dependent on their (Senior) Minister in terms of ministerial competencies, enjoying a delegation from that Minister.

101. Section 3A(1)(a) of the 1998 Act (as amended most recently by s. 2 of the 2025 Act) provides that the Government may, by Order, provide for payment of an annual allowance for up to four Ministers of State “who regularly attend meetings of the Government”.

102. Section 3A(1)(b) of the 1998 Act empowers the Government to determine the rate of such an allowance and the date or dates from which it is payable, while s. 3A(2) of the 1998 Act empowers the Government to afford retrospective effect to orders made under s. 3A. If so ordered by the Government, the relevant Ministers of State (as is the case for the four Ministers of State here) will receive an annual allowance and also increased pension and severance payments under ss. 13E and 29A of the Ministerial and Parliamentary Offices Act 1938 (as amended).

103. Section 11 of the 1997 Act facilitates the appointment by the Government of special advisers to affected Ministers of State at the request of the member of Government (Senior Minister). Authorised vehicles carrying affected Ministers of State also benefit from derogations for specific road traffic purposes equivalent to authorised vehicles carrying constitutionally recognised members of the Government pursuant to Regulation 32 of the Road Traffic (Traffic & Parking) Regulations 1997 (S.I. No. 182 of 1997) (as amended).

104. As already noted, at present, there are four Super Junior Ministers (the maximum who can be paid allowances as such) who fall within the definition of s. 3A(1)(a) of the 1998 Act. These Ministers are entitled to the payment of approximately €117,113 salary as a TD, plus €47,314 as a Minister of State and an additional allowance of €13,542 as a Minister of State attending meetings of the Government.

8. CHRONOLOGY

(A) General

105. The following chronological sequence of what occurred in the formation of the 35th Government provides both the necessary factual and constitutional context to Deputy Daly’s challenge.

106. In adopting a harmonious and holistic approach to the provisions of the Constitution (as required by the decision of the Supreme Court in Heneghan v. Minister for Housing and Local Government [2023] IESC 7, [2023] 2 ILRM 1 97 (“Heneghan”) which is referred to later in this judgment) that context is initially book-ended inter alia by Article 13.2.1º of the Constitution (“Dáil Éireann shall be summoned and dissolved by the President on the advice of the Taoiseach”) and Article 28.4.1º (“The Government shall be responsible to Dáil Éireann”). This sequence is important in contextualising what are inherently political issues and matters of general public interest such as the calling of a general election, the pronouncement of the results and the formation of Government, within the framework provided by the Constitution. The sequence of events is regulated not only by the diktat of the provisions of the Constitution but also by Standing Orders of Dáil Éireann, custom, practice and conventions in the formation of Government.

(B) General Election

107. The starting point, therefore, is the General Election.

108. On 8th November 2024, shortly after 2.00pm, pursuant to an advice tendered to him by Taoiseach Simon Harris at Áras an Uachtaráin, President Higgins, signed the Proclamation, in accordance with Article 13.2 of the Constitution, dissolving the 33rd Dáil and summoning the new Dáil Éireann (i.e. the 34th Dáil) to meet on 18th December 2024 at 10.30am further to Article 13.2.1º of the Constitution which provides for the role of the President in the summoning and dissolution of the Dáil.

109. The Presidential Proclamation was the first in a series of actions which had a mix of political, legal and constitutional consequences.

110. Consequent upon that Proclamation of Dissolution, also on 8th November 2024, the Bills Office of the Oireachtas prepared the election writs for the Clerk of the Dáil and the Minister for Housing, Local Government and Heritage, Deputy Darragh O’Brien made an order appointing 29th November 2024 as polling day.

111. The General Election, from which the 34th Dáil was formed, consequently took place on 29th November 2024. That election returned 174 TDs to Dáil Éireann from 43 constituencies in the State. Those 174 TDs represent 43 geographical areas i.e. constituencies as defined by the Electoral (Amendment) Act 2023.

(C) Assembly of Dáil Éireann on 18th December 2024

112. The 34th Dáil duly assembled on 18th December 2024 at 10.30am, chaired by the Clerk of the Dáil who proceeded to read the Proclamation of the President of Ireland dissolving and convening Dáil Éireann.

113. In compliance with Standing Order 3 of the “Standing Orders of Dáil Éireann relative to Public Business” (the “Standing Orders”), the Clerk of the Dáil reported that immediately upon the issue by the President of the Proclamation on 8th November 2024, dissolving Dáil Éireann on that day, writs had been issued pursuant to s. 39 of the Electoral Act 1992 (as amended) (the “1992 Act”) for a list of identified constituencies to named Returning Officers. Thereafter, the Clerk of the Dáil proceeded to announce the names of the persons returned to serve in the Dáil for each of the constituencies set out in the writ returned by each of the Returning Officers. After outlining the deputies elected, the Clerk of the Dáil, pursuant to s. 36 of the 1992 Act, referred to the fact that Deputy Seán O’Fearghaíl, as the previous holder of the Office of Ceann Comhairle, had been deemed to have been elected as one of the members for the constituency of Kildare South.

114. Pursuant to Standing Order 4 of the Standing Orders, the Clerk of the Dáil laid before Dáil Éireann copies of the general election writs with the returns endorsed on the writs and confirmed that all the deputies mentioned had signed the role in accordance with the Standing Orders of the Dáil (with the exception of one deputy who was on maternity leave).

(D) Election of Ceann Comhairle

115. The first business of the new Dáil was to select from its members the Ceann Comhairle. This election took place by secret ballot using the PR-STV (proportional representation with a single transferable vote) system. Deputy Verona Murphy was selected as the Ceann Comhairle of the 34th Dáil and formally elected by the Dáil on 18th December 2024. The Leas-Cheann Comhairle of the 34th Dáil, Deputy John McGuinness, was selected and formally elected by the Dáil on 19th February 2025.

(E) Nomination of An Taoiseach

116. After the election of the Ceann Comhairle, the next item of business of the new Dáil pursuant to Article 13.1.1° of the Constitution was the election of the Taoiseach by the Dáil for appointment to that position by the President (“The President shall, on the nomination of Dáil Éireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister”).

117. When the Dáil resumed on 23rd January 2025, following a recess, Deputy Albert Dolan moved a motion “That Dáil Éireann nominate Deputy Micheál Martin for appointment by the President to be Taoiseach”. When the question of his nomination was put to the floor, the Dáil divided Tá: 95, Níl: 76, with no abstentions.

118. The Dáil then suspended for three hours (from approximately 2.00pm to 5.00pm) during which time Deputy Micheál Martin received his warrant of appointment as Taoiseach from the President in Áras an Uachtaráin and returned to the Dáil as the constitutionally appointed “head of the Government or Prime Minister” as per Article 13.1.1º of the Constitution.

(F) Appointment of Government

119. When the Dáil resumed that afternoon, the Ceann Comhairle called on the Taoiseach to confirm his appointment by the President as Taoiseach and to move the motion appointing the members of Government. This sequential protocol, or slight variations of it, has been followed by newly elected governments for a number of years (the process in 2016 and 2017 (and 2025) is set out in our judgment in the Murphy proceedings).

120. In his introductory remarks, in Irish and English, the Taoiseach announced to the Dáil that he had informed the President that the Dáil had nominated him to be the Taoiseach and that the President had accordingly appointed him as Taoiseach.

121. The Taoiseach then moved the following motion:

“That Dáil Éireann approve the nomination by the Taoiseach of the following Deputies for appointment by the President to be members of the Government:

- Deputy Simon Harris as Tánaiste and Minister for Foreign Affairs and Trade and Minister for Defence.

- Deputy Paschal Donohoe as Minister for Finance.

- Deputy Jack Chambers as Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation.

- Deputy Helen McEntee as Minister for Education and Youth.

- Deputy Darragh O’Brien as Minister for Climate, Environment and Energy and Minister for Transport.

- Deputy Norma Foley as Minister for Children, Disability and Equality.

- Deputy Peter Burke as Minister for Enterprise, Tourism and Employment.

- Deputy Dara Calleary as Minister for Social Protection and Minister for Rural and Community Development and the Gaeltacht.

- Deputy Patrick O’Donovan as Minister for Arts, Media, Communications, Culture and Sport.

- Deputy Jennifer Carroll MacNeill as Minister for Health.

- Deputy James Browne as Minister for Housing, Local Government and Heritage.

- Deputy Jim O’Callaghan as Minister for Justice, Home Affairs and Migration.

- Deputy Martin Heydon as Minister for Agriculture, Food, Fisheries and the Marine.

- Deputy James Lawless as Minister for Further and Higher Education, Research, Innovation and Science.

- Rossa Fanning SC as Attorney General to the Government.

- Deputy Mary Butler as Government Chief Whip and Minister of State attending Cabinet with responsibility for mental health.

- Deputy Hildegarde Naughton as Minister of State attending Cabinet with responsibility for disability.

- Deputy Noel Grealish as Minister of State attending Cabinet with responsibility for food promotion, new markets, research and development.

- Deputy Seán Canney as Minister of State attending Cabinet with responsibility for international and road transport, logistics, rail and ports. In addition, in the coming days I will take steps to propose further Deputies to serve as Ministers of State covering an expanded range of responsibilities in order to fully address the priorities set out in the programme for Government. The legislation required to give effect to this will be introduced without delay. The Government that I am nominating today is a Government that will work every day to protect Ireland’s strength at this moment of real threat, and it will also take sustained action to address critical social needs. Each member of the new Government will have responsibility for a distinct programme of action but each will also be required to actively contribute to the Government’s core priorities. A whole-of-government approach, taking key issues out of departmental silos and delivering action on multiple fronts at once, will be a defining characteristic of the Government’s work. In a number of priority areas, a series of new co-ordination mechanisms will be put in place that will be led from the Taoiseach’s office.” (Emphasis Added).

122. The Taoiseach nominated 14 Deputies to be members of the Government for appointment by the President beginning with the reference to “Deputy Simon Harris as Tánaiste and Minister for Foreign Affairs and Trade and Minister for Defence” and ending with the reference to “Deputy James Lawless as Minister for Further and Higher Education, Research, Innovation and Science” and then continued to list a further five names.

123. Although the language used referred to “Government” in the political sense, the list of names read into the Dáil record was punctuated by the inclusion of the Attorney General, “Rossa Fanning SC as Attorney General to the Government”, who, pursuant to Article 30.4 of the Constitution, is not a member of the Government. Having thus read a list of the fourteen deputies’ names and nominated the Attorney General, the Taoiseach proceeded to nominate Deputy Mary Butler as Government Chief Whip and Minister of State attending Cabinet with responsibility for Mental Health and the three remaining Deputies (Deputies Naughton, Grealish and Canney) were nominated as Ministers of State to attend Cabinet.

124. Given the political nature of this process, where the nomination of persons has attained a certain ceremonial context in the Dáil chamber, it is unsurprising that the Taoiseach identified areas of responsibility for each of the proposed Ministers of State without expressly stating that in their capacities as Ministers of State attending Cabinet, they were not in fact or in law members of the Government. The similar speech given by Taoiseach Kenny in 2016 and Taoiseach Varadkar in 2017 is referred to in our judgment in the Murphy proceedings.

(G) Presidential Appointment and Seals of Office

125. Following the Taoiseach’s speech to the Dáil and Dáil approval in relation to the deputies proposed or nominated to be members of Government having been secured (Dáil approval is not required for the person nominated as Attorney General), those nominated persons, together with the proposed Attorney General and the four deputies who had earlier been proposed as Ministers of State, and the Taoiseach attended at Áras an Uachtaráin where the members of Government were appointed by the President and received their seals of office. Although present, the four deputies who had been proposed as Ministers of State were not appointed by the President and received no seals of office. Their status remained as Teachta Dála or TDs until they were nominated by the Taoiseach and appointed by the Government during its first meeting held that evening on 23rd January 2025 at Áras an Uachtaráin, a meeting to which they were invited by the Taoiseach and attended as deputies.

126. The Government decision dated 23rd January 2025 refers to it sitting at Áras an Uachtaráin and inter alia records that:

“…On the nomination of the Taoiseach and in exercise of the power conferred on them by section 1 of the Ministers and Secretaries (Amendment) (No. 2) Act 1977, as amended, appointed: (i) Mary Butler, TD to be Minister of State at the Department of the Taoiseach with special responsibility as Government Chief Whip and at the Department of Health with special responsibility for Mental Health; (ii) Hildegarde Naughton, TD to be Minister of State at the Department of Children, Equality, Disability, Integration and Youth with special responsibility for Disability; (iii) Noel Grealish, TD to be Minister of State at the Department of Agriculture, Food and the Marine with special responsibility for Food Promotion, New Markets, Research and Development; and (iv) Seán Canney, TD to be Minister of State at the Department of Transport with special responsibility for International and Road Transport, Logistics, Rail and Ports.”

127. Additional Ministers of State were appointed by Government decision on 29th January 2025 and in February 2025.

9. SUMMARY OF SUBMISSIONS OF THE PARTIES

128. Unsurprisingly, there is considerable overlap in the legal submissions urged on the Court in this case and the separate Murphy proceedings. Indeed, the Respondents to both proceedings share a common legal team. There are, however, also some important points of departure between the two cases, including that these proceedings proceeded by way of judicial review in distinction to the plenary proceedings maintained by Deputy Murphy. Most notably, there is a focus or emphasis in legal argument on Articles 5 and 6 of the Constitution in Deputy Murphy’s submissions in the Murphy proceedings, which we address in that judgment also delivered today.

129. It is not proposed to repeat in detail the extensive submissions made in each case, but it is appropriate to summarise the broad thrust of submissions made in this case. Some commonalities between the two cases will be highlighted and addressed in this judgment while points of difference will be further addressed in the separate judgment in the Murphy proceedings.

130. Deputy Daly’s principal argument centres on the proposition that the regular attendance at, and participation in, meetings of the Government, at the invitation of the Taoiseach, by the relevant Ministers of State is a breach of various constitutional provisions, including, in particular, the following: 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 the Constitution (Article 28.1); the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government (Article 28.2); the Government shall be responsible to Dáil Éireann (Article 28.4.1°); 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 (Article 28.4.2°) and the confidentiality of Government meetings (as prescribed by Article 28.4.3°). These arguments derive some support from academic commentary (see Kelly: The Irish Constitution (Bloomsbury Professional, 2018) at paragraph 5.1.40, at page 516).

131. The justiciability of the claims has been put in issue by the Respondent in both this case and the Murphy proceedings.

132. Both deputies proceed on the basis of the fundamental contention that no governmental entity, including the Executive, is exempt from the rule of law and the Executive Branch of Government derives its powers, just as the Oireachtas and the Judiciary do, from the People pursuant to the provisions of the Constitution, with the result that a failure to conform to constitutional requirements regarding the attendance and participation in Government meetings is amenable to judicial oversight. This proposition is supported by reliance on decisions such as Callely v. Moylan [2014] 4 I.R. 112.

133. Extensive reliance is placed by both parties on the judgment of O’Donnell C.J. in Burke v. Minister for Education and Skills [2023] 2 I.R. 1 (“Burke”). The judgment in Burke was cited to support the position advanced on behalf of Deputy Daly that if any of the specific provisions of the Constitution in relation to the conduct of Government business were contravened, the courts would be required to exercise a jurisdiction to so declare. In reliance on Burke it is contended that citizens may have recourse to the courts to argue that the Government has not acted in compliance with the provisions of the Constitution, without having to establish that any personal right of the citizen has been affected, or indeed, that they have any better claim to raise such a contention than any other citizen, where there are a number of specific and clearcut provisions of the Constitution regulating the establishment and conduct of the Executive Branch. A failure to comply with such clearly expressed provisions, it is argued, constitutes both a breach of a clear-cut provision of the Constitution and a clear disregard of a constitutional requirement and is therefore amenable to court action on either basis.

134. Countering this argument, it is not disputed that a clear disregard standard applies to justiciable Executive action, but the Respondents maintain that as the Constitution was silent on attendance at Government meetings, the court has no jurisdiction to “police” the actions of the Executive and participation by the relevant Ministers of State in Government meetings was nonjusticiable. Furthermore, it is maintained on behalf of the Respondents that even if a justiciable issue has been identified, the threshold of clear disregard was not met in the absence of an established breach of a constitutionally prescribed restriction on attendance which precluded Super Junior Ministers.

135. In terms of the substantive arguments advanced, in the Murphy proceedings, for example, reliance on “the designation of the rulers of the State by the people” in Article 6 of the Constitution, subtended the contention that the invitation by the Taoiseach, as part of a political agreement in the formation of a Government, to relevant Ministers of State to attend and participate at meetings of the Government, on an ongoing basis, elevated them to the status of members of the Government notwithstanding the differences between them, and breached the provisions of Article 28 of the Constitution which provided for collective authority and responsibility by the 15 members of Government. In contrast, in these proceedings, the argument focused on the terms of Article 28 itself with an important emphasis on cabinet confidentiality.

136. A common case was made in both proceedings that the practice of appointing Ministers of State to attend at, and participate in, Government meetings breaches the rule set out at Article 28.1 to the effect that the Government shall consist of not more than 15 members. It was contended that Article 28.1 is clear in its terms in imposing an unambiguous constitutional floor and ceiling on the number of members of the Government. In both cases, it was claimed that the disputed practice breaches the fundamental rules governing the way Government operates and the requirement of governmental collective authority by the participation of Ministers of State in discussions and decision-making at Government meetings.

137. In Deputy Daly’s case, particular emphasis was placed, in the submissions made on his behalf, on the practice of attendance by the said Ministers of State at Áras an Uachtaráin with the Ministers/members of the Government receiving their seals of office from the President, their inclusion in the official photograph and their attendance at the first Cabinet meeting held in Áras an Uachtaráin, even though, at that stage, they had not yet been appointed as Ministers of State by the Government on the nomination by the Taoiseach under the 1977 Act. Emphasis was placed on behalf of Deputy Daly on the fact that even when appointed as Ministers of State, they were never appointed as Ministers of State who regularly attend meetings of Government, as there is no such statutory office and no provision is made for such appointment.

138. We were referred inter alia to decisions in cases such as The People v. O’Shea [1982] I.R. 384 (“O’Shea”) and Curtin v. Dáil Éireann [2006] 2 I.R. 556 (“Curtin”) to support the argument that the numerical restriction in Article 28.1 is clear and should be narrowly and literally construed to preclude participation in discussions and decision-making by anyone other than the 15 members of the Government.

139. In the arguments presented, the Respondents do not argue against the proposition that the Constitution prohibits the Government from consisting of more than 15 members. It is contended, however, that there is nothing in the Constitution regulating attendance at Government meetings in distinction to membership of Government. The Respondents rely on the fact that the Constitution places no express or implied limitation on persons other than members of the Government attending meetings of the Government and does not otherwise seek to regulate the attendance of persons, including the relevant Ministers of State, when invited to do so by the Taoiseach and/or the Government.

140. On behalf of the deputies in both cases, however, the point is made that the references in Article 28.4.1° and 28.4.2° are solely to the Government, defined as comprised of 15, and not extending to the inclusion of others. It is submitted, on behalf of Deputy Daly that, as Article 28 of the Constitution envisages a framework where the Government consists of 15 presidentiallyappointed members, including the Taoiseach, the regular attendance at Government meetings by an additional four Ministers of State, at the Taoiseach’s invitation, creates a parallel or shadow regime which is involved in the decision-making of the Government contrary to the provisions of Article 28.

141. It is contended that Article 28.4.2° is mandatory and requires the Government to “meet and act as a collective authority”. It is urged, on behalf of Deputy Daly, that this means that the Government, and only the Government, may validly “meet and act” for constitutional purposes and such meetings of the Government only are constitutionally permitted by Article 28.4.2° of the Constitution. The principle of expressio unius exclusio alterius is invoked to contend that there is no specific constitutional authority to extend participation in Government meetings to persons not contemplated by the Constitution. Deputy Daly submits that, literally or by implication, Article 28 of the Constitution states who should be at a meeting of Government, what their role is at the Government meeting and how they should act at the Government meeting.

142. Insofar as the who is concerned, it is submitted on behalf of Deputy Daly that Article 28.1 of the Constitution, when read with the other provisions in Article 28, envisages a maximum of

15 presidentially-appointed persons involved in decision-making at meetings of the Government and that no other persons invited should become involved or participate in those meetings.

143. In relation to the role to be exercised, it is further contended that since it is they – the 15 presidentially-appointed persons – who exercise the executive power of the State (Article 28.2), this is then supportive of an argument that it is those persons alone who make decisions at a Government meeting. Regarding how those attending a meeting of Government should act, Deputy Daly argues that the four Ministers of State should not be at the meeting. Deputy Daly, in particular, places emphasis on that part of Article 28.4.2º of the Constitution which states that “[t]he Government shall meet and act as a collective authority”.

144. Deputy Daly argues that by regularly attending meetings of the Government at the invitation of the Taoiseach, the relevant Ministers of State are impermissibly involved in the decisionmaking process of Government by their participation in discussions in seeking to reach a consensus (the evidence being that a vote is rarely called save for incorporeal meetings) together with the 15 members of the Government which, he submits, is the preserve of the 15 presidentially-appointed members of the Government (including the Taoiseach). He contends that by regularly attending meetings of the Government at the invitation of the Taoiseach, the relevant Ministers of State get to see and participate in Government decision-making and are, therefore, acting in a “parallel cabinet” or as de facto Government Ministers when they are involved in the process of decision-making together with the 15 members of the Government at Government meetings.

145. It is further submitted by Deputy Daly that the drafters of the Constitution clearly determined that the size of the Government should not be regulated by statute, as apparent from the insertion of a specific numeric restriction, suggesting that the very fluid position in the United Kingdom at the time the Constitution came into force might have had a bearing on this. This contention is rejected on behalf of the Respondents who point to the historic practice of third parties attending at meetings of Government to contend that the framers of the Constitution were well aware of this practice and by adopting the Constitution without, it is claimed, expressly prohibiting the practice, it can and should be inferred that the practice is not incompatible with the Constitution and the wishes of the people.

146. Given the differences between the Constitution of Saorstát Éireann in 1922 and the 1937 Constitution, reliance on historical practice for this purpose is rejected on behalf of Deputy Daly. Indeed, it is pointed out that under the 1922 Constitution, executive authority was vested in the King (Article 51) and not the People. Furthermore, it is submitted that the 1922 Constitution itself envisaged the existence of Ministers who were not members of the Executive Council (Article 55) making the absence of such a provision in the 1937 Constitution indicative of a contrary intention.

147. It is further contended that consideration must be given to the precise role of any third party attending a meeting and the purpose of their attendance. In submissions, it was pointed out that Ministers of State attending meetings of the Government have full access to confidential cabinet materials in advance of meetings. In response, the Respondents lay emphasis on the fact that the same high level of access given to Ministers is not afforded to Super Junior Ministers as they are unable to bring Memoranda to Government without assistance from a sponsoring Senior Minister/member of the Government. In addition, draft Memoranda which invite submissions and contain responses (to and from the Ministers/ministers of the Government or, if necessary, the Attorney General) are not circulated to Super Junior Ministers before they are finalised. The finalised Memoranda are only circulated to all attendees (including Super Junior Ministers) in advance of the actual meeting.

148. In both cases brought by Deputy Daly and Deputy Murphy, it is submitted that the position of the Attorney General, the Secretary to the Government (i.e. the Cabinet Secretary) and the Chief Whip were distinguishable from that of the relevant Ministers of State. In this regard reliance is placed on the distinct constitutional function assigned to the Attorney General under Article

30 of the Constitution as the legal adviser of the Government in matters of law and legal opinion. It is pointed out that while he is expressly not a member of the Government, his attendance at meetings of the Government is envisaged by his function in providing legal advice insofar as legal issues may arise. His attendance at Cabinet meetings is said not to be precluded by Article 28 of the Constitution.

149. As for the Secretary to the Government or Cabinet Secretary, the point is made on behalf of both deputies that the Cabinet Secretary does not seek to influence policy, attends Government meetings at the will of the Government, but not otherwise and could be asked to remain outside the meeting. His purpose, it is said, is to assist the Government but not to participate in discussions or decision-making, a distinction which, it is maintained, is critical.

150. In relation to the Chief Whip, it is not disputed that there is long standing precedent for the Chief Whip attending meetings of the Government but the role of the Chief Whip, in assisting Government rather than in participating in discussions or decision-making, is identified as crucial to the constitutionality of that attendance.

151. Deputy Daly seeks to draw a distinction with the other circumstances when persons, other than the 15 members of the Government (including the Taoiseach), attend meetings of the Government, by submitting that the regular attendance and participation by the relevant Ministers of State in meetings of the Government, at the invitation of the Taoiseach, means that they are impermissibly involved in the decision-making process of the Government in a way which is contrary to Article 28 of the Constitution.

152. No complaint, therefore, is made by either Deputy Daly (or Deputy Murphy) regarding the attendance at meetings of the Government on a regular basis (at the invitation of the Taoiseach, or arising from custom and practice) of the Attorney General, the Secretary to the Government or the Chief Whip, nor is any complaint made in relation to the discrete attendances at meetings of the Government by politicians (including other Ministers of State), individuals and experts on a once-off basis.

153. It is further contended by Deputy Daly that the corollary of the presence of the relevant Ministers of State, at the invitation of the Taoiseach, inexorably means that there is no constitutional bar to the Taoiseach inviting any person (not merely deputies and senators), and any numbers of persons, to attend meetings of the Government. The example is given of former Taoiseach, Dr. Fitzgerald’s invitation to Mr. Alexis Fitzgerald in 1981 to attend the meetings of his Government.

154. The aforesaid distinctions sought to be drawn, on behalf of Deputy Daly, as between the presence at meetings of the Government of the Chief Whip, the Secretary to the Government and the Attorney General, whose roles were not the subject of challenge, is criticised on behalf of the Respondents, in their responding submissions, as being incoherent and without a logical basis.

155. Further, the Respondents attach significant importance, in opposing the reliefs sought, to identified distinctions between members of the Government and the relevant Ministers of State regularly attending meetings of the Government. Several of these differences relate to the manner of appointment of the two groups whereby a member of the Government (Government Minister) is appointed by the President, following nomination by the Taoiseach in the Dáil and with Dáil approval, in accordance with constitutionally mandated procedures, whereas Ministers of State are appointed by the Government, without Dáil approval on the nomination of the Taoiseach, pursuant to s. 1 of the 1977 Act (as amended).

156. On behalf of Deputy Daly, however, this reasoning is criticised as circular on the basis that the fact that members of a group nowhere envisaged by the Constitution are appointed in a different manner to those whose appointment is prescribed by the Constitution should not be in any sense dispositive of the issue.

157. A secondary or consequential argument in both proceedings is that s. 3A(1) of the 1998 Act is unconstitutional because it incentivises and/or buttresses a political practice of regular attendance and participation at Government meetings in a ministerial capacity of persons other than members of the Government (Government Ministers) by providing for the payment of allowances to such persons in respect of what is alleged to be their unlawful attendance at Government meetings. It is argued that by providing in this way for a practice which is inconsistent with the Constitution via the deployment of public funds, s. 3A(1) of the 1998 Act is unconstitutional.

158. The Respondents meet the arguments advanced in reliance on the terms of Article 28 by pointing out that the relevant Ministers of State are not members of the Government. They may attend at and participate in meetings of the Government but may not vote. Reliance is placed on the fact that historically, Government meetings have been attended by third parties.

159. Furthermore, while the relevant Ministers of State are not members of Government, they are, themselves, nonetheless, bound by cabinet confidentiality as the duty of confidentiality flows from attendance at Cabinet meetings and attaches to anyone in attendance, thereby respecting the constitutional mandate.

10. ANALYSIS AND DECISION

(A) Justiciability

160. A preliminary issue arises, common to this case and the Murphy proceedings, as to whether the Court may review the lawfulness of practices at Government meetings which fall within the political domain.

161. The fact that the appointment of the relevant Ministers of State may be politically expedient does not mean that it is immune from judicial scrutiny. In a constitutional democracy, the Government too must conduct its business in the manner ordained by the People under the Constitution. The notion of constitutional democracy underpinned Walsh J.’s judgment in Crotty v. An Taoiseach [1987] I.R. 713 (“Crotty”) when he said (at page 778):

“It is not within the competence of the Government, or indeed the Oireachtas, to free themselves from the constraints of the Constitution …They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution.”

162. While the Government is responsible to the Dáil and not the Courts in respect of matters of policy, in the event of the Government acting in a manner which is in contravention of some provision of the Constitution, it would be “the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts” (Boland v. An Taoiseach [1974] I.R. 338, (“Boland”) per Griffin J., p. 371).

163. The exercise by the Government of the executive power of the State is therefore clearly subject to the provisions of the Constitution (see also McKenna v. An Taoiseach (No. 2), [1995] 2 I.R. 10, (“McKenna (No. 2)”), per Hamilton C.J., at page 40). The Government is a creature of the Constitution and is not empowered to act free from the constitutionally imposed restraints. Accordingly, it is the right and duty of the Court to examine, and if necessary, review the activities of the Government to ascertain whether its activities are within its constitutionally permitted areas of activity and function (as in Crotty).

164. Just as the High Court (Kearns P.) found in Doherty v. Ireland [2011] 2 I.R. 222 that Article

16.7 of the Constitution (requiring by-elections in accordance with law to fill vacancies) gave rise to a justiciable controversy because the Constitution gives a right to be represented by the number of members laid down by law and the right to equality of political representation, we also find that a justiciable controversy arises where the Constitution places a cap on numbers of Government Ministers as to whether the presence of Ministers, other than Ministers/members of the Government, at meetings of Government is constitutionally permissible, not least having regard to the separate and distinct functions of Government and the requirements of collective responsibility and Dáil accountability.

165. Having not been appointed by the President, the relevant Ministers of State are not members of the Government within the meaning of the Constitution and the question arises as to whether it is permissible for them to attend at, and participate in, Government meetings.

166. As O’Donnell C.J. explained at paragraphs 39-41 of his judgment in Burke, the Constitution prescribes certain aspects of the Executive such that if any of the following specific provisions were contravened, the courts would be required to exercise a jurisdiction to so declare:

“(39)…The Constitution contains a number of provisions controlling the constitution of the executive (Article 28.1 and 28.7), the manner of its appointment (Article 28.1) and how it shall proceed, even in the field of foreign affairs, an area expressly consigned to the Government by Article 29.4 and traditionally understood as a core function of the executive branch in many comparable jurisdictions. Thus, the Constitution contains explicit provisions in relation to the treaty making power, setting out in Article 29.5 the circumstances in which any treaty made by the Government must be approved by Dáil Éireann, and that a treaty cannot be part of the domestic law of the State without the decision of the Oireachtas. Perhaps the clearest example of the manner in which the Constitution constrains an important — indeed, vital — power of the executive, is the requirement that war shall not be declared without the agreement of Dáil Éireann (Article 28.3.1°). The Government is also obliged to observe confidentiality (Article 28.4.3°), and to prepare annual estimates (Article 28.4.4°). As already observed, the constitution of the Government is controlled, in part, by the Constitution. The Taoiseach, Tánaiste and Minister for Finance must be members of the Dáil (Article 28.7.1°)…” (at pp. 28-29).

167. We are satisfied that the text and structure of the Constitution requires that the Court must have jurisdiction to determine if the Executive branch, or any aspect of it, has failed to comply with the provisions of the Constitution through the regular attendance at, and participation in, Government meetings by Ministers of State who are not members of the Government appointed under the Constitution. Although the central issue raised by Deputy Daly as to (i) who attends Cabinet and (ii) their level of involvement and participation in the discussions at Government meetings is not expressly regulated by Article 28 of the Constitution, it is, in our view, clearly justiciable.

(B) Constitutional Prescription: Whether the Rule of 15 Infringed

168. A number of preliminary observations arise from the factual context presented by both parties in this judicial review application.

169. Since the first independent Irish Government was appointed by Dáil Éireann in January 1919, it had been the practice to bring in one or more selected non-Cabinet Ministers to aid in its deliberations, though without the right to vote. From 1922 to 1977 these were termed Parliamentary Secretaries; since 1977, they have been referred to as Ministers of State.

170. One of these also carries the colloquial title “Chief Whip” and attends Cabinet meetings.

171. A secretariat of officials of all grades, also attends Cabinet meetings, with other officials attending upon invitation to brief on particular issues.

172. By long standing convention, the Attorney General also attends meetings of the Government, although not a member of the Government and, in more recent times, not usually an elected representative (although in the 20th Dáil, Deputy John Kelly served as Attorney General from 20th May 1977 to 5th July 1977 replacing Deputy Declan Costello, who served as the Attorney General from 15th March 1973 to 19th May 1977, when he was appointed as a judge of the High Court).

173. In more modern times, since the creation of the role of Ministers of State by the 1977 Act, it appears that the first occasion upon which a Minister of State (within the meaning of the 1977 Act) (other than the Chief Whip) was permitted to regularly attend Cabinet meetings was during the 27th Dáil and 24th Government (1992-1997) in 1994 when Deputy Pat Rabbitte was appointed as Minister of State to the Government and Minister of State at the Department of Enterprise and Employment with responsibility for Commerce, Science and Technology, and was invited by Taoiseach John Bruton to attend and partake in Government meetings, although he was not a member of the Government.

174. Prior to 1994, the evidence demonstrates that there was a long-established convention (prior to and post the entering into force of the 1937 Constitution on 29th December 1937 following a plebiscite in July 1937) that third parties could attend Government meetings to address the Government on matters of specific interest (e.g. the example referred to in the evidence of Mr. John Halligan) or in an advisory capacity (e.g. Mr. Alexis Fitzgerald).

175. Whilst s. 3A of the 1998 Act (as amended) provides for an allowance for the extra work involved in regularly attending meetings of the Government, the invitation arises in the first instance from the Taoiseach as part of the political arrangement in the formation of Government.

176. Although there is no formal record drawn up of the invitation from the Taoiseach to attend Government meetings as a Minister of State, the evidence establishes a practice of the Taoiseach’s nomination of certain Ministers of State who are invited to regularly attend meetings of the Government, being read into the Dáil record, including by specifying which Ministers of State will regularly attend at meetings of the Government (as can be seen in the Dáil Éireann debate, “Appointment of Taoiseach and Nomination of Members of Government”, 23rd January 2025, an extract of which we have set out earlier in this judgment).

177. Other Ministers of State (and third parties) have attended meetings of the Government on a discrete basis, or for a limited purpose, and this practice is not objected to by Deputy Daly (or by Deputy Murphy in the Murphy proceedings).

178. On those occasions, when invited, Ministers of State (or third parties) meet with the members of the Government to deliver specific briefings or presentations relating to their brief or a particular issue. The practice described by former Minister of State John Halligan (touched on earlier) is that, when he attended meetings with the Government, he waited to be called into the cabinet room. When called in, he answered questions and, when he had addressed matters to the satisfaction of those present, he withdrew. He was not present for a subsequent discussion at which a decision may or may not have been taken and he did not brief the Government on matters other than those that fell within his particular area of responsibility. His position is, therefore, distinguishable in terms of the attendance and participation from that of Super Junior Ministers. We accept that the two situations are not directly comparable.

179. In attending meetings, the Super Junior Ministers are privy to the confidential discussions at meetings of the Government by virtue of their taking part in such meetings and they receive the same finalised Memoranda in advance of Government meetings that the Minister/member of the Government receives. However, they are not circulated with the meeting materials (Memoranda) to invite their formal response in advance of the meeting in the same way that members of the Government (Senior Ministers) are.

180. It is undeniable that the access afforded to meeting materials is qualitatively different depending on a person’s status as a member of the Government, on the one hand, and a Minister of State who is a Super Junior Minister, on the other hand. The net effect of the practice as established on the evidence is that the Super Junior Ministers have access to documentation considered at the meeting for the purpose of participating in discussions at the meeting but are not consulted and afforded an opportunity to inform policy development and decisions through written observations on the Memorandum in question in advance of the meeting using the eCabinet system through which information sharing for Government meetings occurs. While access to preparatory materials is not provided to them through eCabinet, Super Junior Ministers can participate and contribute to discussions at the meeting of the Government based on the finalised Memoranda circulated for the meeting.

181. As regards the current Government, it has been established in evidence that the Dáil nominated Deputy Micheál Martin and he was then appointed Taoiseach by the President in accordance with Article 13.1.1° of the Constitution.

182. It is further established on the evidence that the first 14 persons (beginning with Deputy Simon Harris and ending with Deputy James Lawless) named in the Taoiseach’s speech to the Dáil were appointed in accordance with Article 13.1.2º, in the manner contemplated by Article 28.1, of the Constitution. The Dáil voted on their proposed appointments and each received the prior approval of Dáil Éireann as per the record/resolution of the vote of Dáil Éireann which was communicated by the Oireachtas to the President.

183. It is also established on the evidence that while Super Junior Ministers do not participate equally with Government ministers appointed by the President and do not enjoy voting rights or the power to bring a Memorandum to Government in their own name, they participate in, and contribute to, discussions at Government meetings without being members of the Government. Whilst the practice in recent years is that the 15 members of the Government make decisions consensually, rather than by voting (but retain the right to vote), there is no basis to suggest that a consensus decision “of the 15” is in any way infringed by that attendance and participation.

184. We accept, as established, the range of factual differences between Ministers/members of the Government and the relevant Ministers of State as referred to by Mr. Callinan on affidavit and relied upon in the opposition papers of the Respondents. These include very notably the fundamental distinction that Government Ministers derive their authority from the Constitution under Article 28, whereas Ministers of State operate under statutory provisions, primarily the 1977 Act and its amendments. The appointment process reflects this distinction: Government Ministers are appointed by the President following a nomination by the Taoiseach and approval by the Dáil, while Ministers of State are appointed by the Government on the Taoiseach’s recommendation without requiring Dáil approval. This constitutional status also grants Government Ministers a seal of office from the President, a privilege not extended to Ministers of State.

185. The distinction is also apparent in terms of responsibilities. Government Ministers head entire Departments of State, exercising full decision-making powers and voting rights at Cabinet meetings. They can submit and present Memoranda, participate in incorporeal meetings, and are bound by collective responsibility under Article 28.4.2°. Conversely, Ministers of State primarily assist Government Ministers and may receive delegated functions, but they lack voting rights, cannot submit Memoranda, and are not formally bound by collective responsibility.

186. Access to parliamentary and governmental fora also differs. Government Ministers have a constitutionally guaranteed right of audience in the Oireachtas and are entitled to attend all Government meetings. Ministers of State, however, attend such meetings only by invitation, and their right of audience in the Oireachtas depends on Standing Orders, which can be altered.

187. Other distinctions include allowances and advisers. Government Ministers receive standard ministerial allowances and may appoint up to two special advisers. Ministers of State can also appoint advisers, but only those who regularly attend Government meetings qualify for additional allowances under s. 3A of the 1998 Act. In essence, Government Ministers hold constitutional authority and full executive powers, while Ministers of State serve in a supportive, statutory capacity with limited privileges and responsibilities.

188. We are satisfied that the word “Government” was used in a political and colloquial sense in the Taoiseach’s speech to the Dáil, as referred to earlier in this judgment, when he called the Ministers of State for appointment to Government after the names of the full or Senior Ministers and the Attorney General. No additional authority or status vests in the Ministers of State by virtue of his or her name being called out by the Taoiseach in the Dáil when naming his Government.

189. We accept, however, that while the status and legal position of the relevant Ministers of State (the Super Junior Ministers) differs from that of a member of the Government/full Minister, they nonetheless attend the Government meeting not just to address agenda items for which they might have had a particular responsibility but may participate in discussions on all agenda items. While the relevant Ministers of State must be sponsored by a senior or full member if wishing to bring an issue to Government for decision, once the Memorandum is introduced at the meeting by the full member of Government who has put his or her name to it, he or she can then hand the issue over to the Minister of State for presentation at the meeting.

190. Accordingly, we are satisfied that the relevant Ministers of State attending Government meetings contribute to, and participate in, discussions at those meetings where the decisions of the 15 members of the Government are generally made on a consensus basis (with the residual right to put the matter to a vote of the 15 members of the Government). We also accept that in a coalition arrangement, on occasion, a political decision may be taken that matters may not be pursued if it is considered by the 15 members of the Government that the relevant Ministers of State attending the meeting of the Government do not support a particular measure, or if they indicate, for example, that it may raise an issue in relation to their continued co-operation in the business of government or a view is taken that support for a particular measure would not be forthcoming in Dáil Éireann.

191. We recognise that participants in the political process may perceive that there is a political advantage in appointing persons as Super Junior Ministers and that a capacity to do so may inform negotiations for Government formation, necessitated by the absence of a clear parliamentary majority consequent upon the results of a general election, and enables political allegiances to be formed around the delivery of political objectives. In terms of accountability to Dáil Éireann, such allegiances may be a factor in securing votes in the Dáil thereby allowing the Government to function effectively. Nonetheless, we are satisfied in view of the legal and factual differences established on the evidence that the relevant Ministers of State are not members of Government within the meaning of Article 28.1.

192. The question for us is whether their attendance at and participation in Government meetings undermines the constitutional prescription that Dáil Éireann is the body which holds the Government to account or means that the Government is no longer exercising power as a collective, single voice on behalf of 15 members and with differences between the members of Government hidden behind a veil of secrecy or confidentiality. As a preliminary to answering these questions, it is first necessary to identify the test to be applied to guide us in a correct interpretation of the Constitution and a proper application of constitutional principle.

(C) Constitutional Interpretation and Clear Disregard

193. The series of judgments from Boland through to Costello v. The Government of Ireland & Ors [2022] IESC 44 (“Costello”) illustrate circumstances where the courts have been called on to review the actions of the Government in different spheres, where it is contended the Government has failed to act in accordance with the express or implied mandates of the Constitution.

194. In rejecting Mr. Boland’s challenge in its foundational decision in Boland, the Supreme Court made clear that where the Constitution conferred executive power, and did not expressly constrain it in any way, the courts should only intervene if there was clear disregard of the provisions of the Constitution.

195. This approach was confirmed in McKenna (No. 2) where Hamilton C.J. observed that the courts had no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers. He added that if the Government were to act otherwise than in accordance with, and in clear disregard of, the provisions of the Constitution, the courts were not only entitled but obliged to intervene.

196. In Burke (at paragraphs 57 to 61), the Supreme Court returned to the clear disregard test. In his judgment O’Donnell C.J. traced the historical evolution of the standard and made the following observation at paragraph 60 of his judgment:

“It is also arguably consistent with this approach, that where the Constitution calls for a broad-based judgment [by the Government], and does not constrain it by any specific restrictions or standards, that the primary accountability for such action lies under Article 28 with the Dáil, and that this reinforces the analysis of the judicial role as arising only in the cases of clear disregard. These cases illustrate circumstances where the courts have been called on to review the actions of the Government in different spheres, where it is contended the Government has failed to act in accordance with the express or implied mandates of the Constitution, and have held that the court may only interfere in an exercise of power consigned by the Constitution to the Government where there has been clear disregard of such express or implied mandate” (at pp. 37- 38).

197. In analysing the application of the clear disregard standard thus, O’Donnell C.J. drew a distinction between proceedings in which it was contended that the exercise of the executive power, whether external or internal, infringed the constitutional rights of a citizen, and those cases in which the claim was made that the Government (in that case) was exceeding, expressly or impliedly, its proper role under the Constitution. The clear disregard standard was appropriate and correct in the latter context but not in the former scenario. Indeed, in Costello, O’Donnell C.J. (dissenting on the ratio) stated – by reference to the clear disregard standard set out in Boland and discussed in Burke – that he did not consider that the application of the clear disregard standard was decisive, or that it was necessary to rely upon it in order to uphold the lawfulness of the execution of the CETA agreement, which was at issue in Costello, as he did not consider that the execution of the agreement disregarded the Constitution clearly or otherwise.

198. The clear disregard jurisprudence is examined in further detail in our judgment in the Murphy proceedings, having regard to the decision of the High Court (Budd J.) in O’Donovan v. Attorney General [1961] I.R. 64 (“O’Donovan”) relied upon on behalf of Deputy Murphy in that case and subsequent case law. It suffices for present purposes to record that we are satisfied that the clear disregard standard applies in respect of Deputy Daly’s claim that there has been a breach of the prescription that Dáil Éireann is the body which holds the Government to account. The Court may intervene only if Deputy Daly establishes a clear disregard of an express or implied constitutional mandate.

199. We consider that the logical consequence of the Superior Courts having no express or implied power to supervise or interfere with the exercise by the Government of its executive functions unless the circumstances are such as to amount to a clear disregard of the clear powers and duties conferred upon it by the Constitution is that we are under a corollate obligation to assess such alleged circumstances and inquire whether, in the first instance, any such express or implied – and clear – powers and duties arise. There is, therefore, a necessary first or preliminary step in the process of constitutional interpretation when applying a clear disregard standard.

200. In Deputy Daly’s case we are required to assess whether there has been any clear disregard of express or implied constitutional requirements by, in this case, the regular attendance and participation at meetings of the Government of persons who are not members of the Government, in particular, the relevant Ministers of State. Before it can be assessed whether there was a clear (or any) disregard of an express or implied constitutional mandate, it is necessary to identify what the Constitution requires through the interpretation of the relevant provisions.

201. In seeking to divine whether, and what, if any, constitutional provisions expressly or impliedly apply to the attendance at meetings of the Government by persons who are not members of the Government and how the relevant provisions should be interpreted, the judgment of the Supreme Court in Heneghan is of assistance.

202. In Heneghan O’Donnell C.J., Dunne, O’Malley, Baker and Hogan JJ. agreed with the judgment of Murray J., with Hogan J. giving a separate concurring judgment and Charleton J. delivering a partial dissenting judgment. In his judgment, Hogan J. emphasised that popular sovereignty via the referendum process was the ultimate grundnorm in the Irish constitutional system. By a majority, the Supreme Court in Heneghan held that the judicial arm of government was obliged to give effect to the will of the People in the absence of action by the legislative arm.

203. The judgment of Murray J. provides a detailed analysis of the Supreme Court judgments of O’Higgins C.J. and Henchy J. in O’Shea (and the later judgment of Henchy J. in Tormey v.

Ireland [1985] I.R. 289 at pages 295-296), the observations of Murray C.J. in Curtin and the judgment of the Divisional High Court in Bacik v. An Taoiseach [2020] IEHC 313.

204. The following principles arise from the judgment of Murray J. in Heneghan and are applicable to the arguments made by Deputy Daly (and Deputy Murphy in his proceedings):

(i) In assessing the constitutional efficacy of persons, other than members of Government, regularly attending at, and participating in, meetings of the Government, the relevant constitutional provisions are to be read as one and are designed to function collectively.

(ii) In assessing the intent of the constitutional provisions in this case, the interpretation of language employed (including the Irish text in accordance with Article 25.4 of the Constitution) involves not only deducing the meaning of the words contained in the constitutional provisions but also reconciling the text of these provisions with the document in its entirety, while simultaneously ensuring that both are analysed in light of their underlying purpose.

(iii) The predominant importance of that purpose, and the fundamental principles which inform it, means that in undertaking the exercise of constitutional interpretation we must incline more to flexibility in subordinating the strictly literal interpretation of the text in order to reach a construction that is both internally harmonious, and that achieves a clearly ascertainable purpose, than might be the case when conducting the exercise of interpreting ordinary legislation.

(iv) In summary, therefore, context and purpose are key factors in the process of constitutional interpretation and no matter how clear the wording in a constitutional provision may appear, regard should be had to the overall context in which the provisions were adopted. We must, therefore, adopt a harmonious and holistic approach.

(D) Application of interpretative principles in assessing the attendance and participation of Ministers of State at Government meetings

205. We turn now to the discharge of the obligation on this court to assess whether, express or implied, clear powers and duties arise from the provisions of the Constitution, read harmoniously and holistically, which preclude the regular attendance at, and participation of, those relevant Ministers of State, at Government meetings and, if so, whether any such provisions have been breached.

206. In Constitutional Law in Ireland (Third Edition, May, 2000, Round Hall Sweet & Maxwell) in Chapter 6 entitled “The Government and the Central Administration”, (pages 153 to 179), Professor James Casey makes the following observation:

“As appears from Article 28, the word ‘Government’ has in Irish constitutional law a precise and technical meaning, equivalent to ‘Cabinet’ in other systems. It is the group of senior ministers which ultimately decides major questions of policy. The Constitution is quite specific about the size and composition of this body; but as to its powers and functions it is, like the basic laws of many other states, deliberately vague. Thus an impression of the institution derived solely from Bunreacht na hÉireann would be seriously misleading” (at p. 153).

207. In view of this “deliberate vagueness” we turn to the historical and political context which preceded the enactment of the Constitution to develop an understanding of the context and purpose of provisions applicable to the powers and functions of Government to inform our assessment of whether there has been a breach of any express or implied constitutional prescription by the attendance of the relevant Ministers of State at meetings of Government.

(i) The historical position

208. The authors of Kelly, The Irish Constitution, at page 534, paragraph [5.1.77], under the subheading “Origins: 1922 provision”, addressing the topic of the “Responsibility of Government to the Dáil” and, in particular, the provisions in Articles 28.4.1º, 28.4.2º, 28.4.3º and 28.4.4º of the Constitution, concisely capture the historical context and perhaps, more importantly, provide a pointer to the issue which lies at the heart of the challenges brought by Deputy Daly in this case (and by Deputy Murphy in his case), as follows:

“These provisions reproduce the substance of Article 54 of the 1922 Constitution, save that Article 28.4.3º is new, having been enacted...in the wake of Attorney General v. Hamilton (No. 1)… The extent to which responsibility to the Dáil is illusory by virtue of the party whip and tendency for majority Government is discussed elsewhere…” (Emphasis added).

209. The term “collective responsibility” is referred to in Articles 51 and 54 of the 1922 Constitution. It appears that the convention of “collective responsibility” dates back to, at the very least, the First Dáil in 1919. Professor David Gwynn Morgan, for example, has described “collective responsibility” as the Government standing and falling “…as a united entity” and observed that the doctrine was “…first adopted on 26 August 1922 (before the 1922 Constitution came into effect) by the Provisional Government, which decided that ‘all decisions of the Cabinet should be regarded as unanimous and should be treated as strictly confidential’…”. He added that: “…[t]he kernel of the doctrine is that if the Taoiseach resigns from office, the other members of the Government as well as the Attorney General and the ministers of state are deemed also to have resigned. (Article 28.11.1°). This rule is complemented by Article 28.4.2° by which ‘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’…” (Gwynn Morgan, 1990, p. 72).

210. The word “Cabinet” was also occasionally used to describe “the Ministry” in the minutes of the proceedings of the First Dáil: per O’Flaherty J. in Hamilton (No. 1) at page 300 when referring to “Minutes of the proceedings of the First Dáil, 1919-1921, pp. 112-113; Stationery Office, Dublin”. The term is variously used, as Professor Casey observes, to describe the Government and, as we refer to in more detail in the Murphy proceedings, the meetings of the Government, including the established seniority protocol manifested by the seating arrangement around the Cabinet table.

211. In the context of the 1937 Constitution, therefore, the convention of collective responsibility is interpreted as the Government “speaking with one voice” and also by the requirement that if the Taoiseach leaves office then the other members of the Government must also leave their respective positions and this explanation finds expression in Article 28.4.2º and Article 28.11.1º of the Constitution.

212. In The Constitution of the Irish Free State, (1932, Unwin Brothers Limited), at pages 285 to 286, Dr. Leo Kohn, when speaking about the relationship between the Executive and the Legislature in the 1922 Constitution, referred to the theoretical intentions of the drafters of the Constitution of Saorstát Éireann as being to “to raise the status of the Legislature” in its relationship with the Executive and observed that “the principle of the responsibility of the Executive Council to Dáil Éireann is twice expressly affirmed (Arts. 51 and 54)”. He also observed that:

“Similarly, the basic convention of the parliamentary system that the Cabinet is required to resign when it has ceased to command the support of a majority of Parliament is invested with the force of positive law (Art.53)….”

213. Kohn records Article 51 of the 1922 Constitution providing inter alia that: “The Executive Council shall be responsible to Dáil Éireann, and shall consist of [not more than seven*] not more than twelve* nor less than five Ministers appointed by the Representative of the Crown on the nomination of the President of the Executive Council.” (quoted from The Constitution of the Irish Free State, (1932, Unwin Brothers Limited), at page 405. *Kohn sets out that the changes were brought about through the Amendment No. 5 Act.

214. Article 54 of the 1922 Constitution provided that: “The Executive Council shall be collectively responsible for all matters concerning the Departments of State administered by Members of the Executive Council. The Executive Council shall prepare Estimates of the receipts and expenditure of the Irish Free State (Saorstát Éireann) for each financial year and shall present them to Dáil Éireann before the close of the previous financial year. The Executive Council shall meet and act as a collective authority.”

215. The structure of the sentence referring to the numerical composition in Article 51 of the 1922 Constitution is similar to that contained in Article 28.1 of the 1937 Constitution. In addition, the phrase “…shall meet and act as a collective authority”, with regard to the Executive Council, in Article 54 of the 1922 Constitution is also contained in Article 28.4.2º of the 1937 Constitution with regard to the Government. That phrase is explored further in our judgment in the Murphy proceedings.

216. Whilst the broad objective of political conventions, unwritten or codified, in terms of seeking to posit a theory of governmental process, may be similar, important differences exist, not least for reasons of history, when seeking to interpret these terms in their Constitutional context.

217. The UK’s reliance on parliamentary sovereignty, for example, differs markedly from Ireland’s constitutional grundnorm in 1937 which is predicated upon popular sovereignty. In addition to its reliance on foundational doctrines such as the concept of popular sovereignty and an enhanced process providing for the judicial review of legislation, the 1937 Constitution also expressly sets out (except for the brief period of time from 1937 to June 1941) a process for its direct amendment by the People (through popular vote) as in, for example, the 17th Amendment of the Constitution Act 1997, which partially reversed the Supreme Court’s decision on Cabinet confidentiality in Hamilton (No. 1) and to which we refer later in this judgment.

218. Writing extra-judicially, Hogan J. suggests that the Irish Free State Constitution 1922 collapsed because there was in effect no clear hierarchy of norms as between ordinary legislation, the Constitution itself and the Anglo-Irish Treaty of 1921 which was scheduled to the Constitution by s. 2 of the Irish Free State (Saorstát Éireann) Constitution Act 1922. He emphasises, that drawing on the experience of both 1921-1922 and 1922-1937, “there is at every point in the 1937 Constitution a very clear hierarchy of norms” (at page 17, “West of the Landstrasse: Searching for the Grundnormen in UK and Irish Constitutional Law”, paper delivered by Mr. Justice Gerard Hogan at the Society of Legal Scholars (SLS) Annual Hale Lecture, on 24 th October 2023 (www.courts.ie)).

219. These differences in constitutional traditions and histories serve to remind us that the task before us is, in the first instance, one of constitutional interpretation, an exercise which may be informed by history.

220. Emerging from its distinct historical context, the process of forming a Government in Ireland after the holding of a general election has a formal context informed by a mix of constitutional prescription, legal measures (electoral law and the Ministers and Secretaries legislation), Standing Orders of Dáil Éireann, custom and practice and, principally, by the results of an electoral process. The results of the electoral process reflect the will of the People, which will, depending on the electoral results also inform the manner in which Dáil Éireann will hold the Government so formed, to account. The fact that the electoral process is participated in by disciplined political parties, and individuals who, if elected, may subsequently form technical groupings (under Standing Orders) and other individuals who may remain independents, is a political reality which is not incompatible with delivery through the electoral process on the will of the People and is part of our democratic order, protected under the Constitution.

221. All of these features operate in the constitutional context of a fused legislative-executive where the constitutional context has prescribed some aspects of government such as, for example, the composition of the members of the Government and the role of Taoiseach but has largely left over the detail of the business of the work of the Government to the legislative process and to custom and practice.

(ii) Popular sovereignty

222. Fundamental to a harmonious interpretation of the provisions of Article 28 with other relevant constitutional provisions must be that the Constitution provides that Ireland is a democratic state. Democracy was described by Pringle J. in De Burca v. Attorney General [1976] I.R. 38, at page 47 as follows:

“A democracy, as I understand it, is a form of government in which the sovereign power resides in the people as a whole and is exercised by the people either directly or through their elected representatives.”

223. It is long established that under the Constitution, ultimate power resides in the People. This is put beyond doubt by the terms of Article 6. Having identified the source of powers to be exercised under the Constitution, Article 6 proceeds to identify how these powers are to be exercised. As found by the Supreme Court (O’Byrne J.) in Buckley & Ors. v. Attorney General [1950] I.R. 67 (at page 81), the manifest object of Article 6 was to “recognise and ordain that, in this State, all powers of government should be exercised in accordance with the wellrecognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise”.

224. The Supreme Court added that:

“subsequent articles are designed to carry into effect this distribution of powers”.

225. Otherwise put, each organ of government has its particular functions which fall to be exercised in the manner laid down under the Constitution.

226. In McCrystal v. Minister for Children [2012] 2 I.R. 726 (at page 768), Murray J. referred to the concluding phrase to the Preamble to the Constitution to preface the opening to his judgment as follows:

“…the truth that the existence of our constitutional democracy, including the constitutional framework within which it functions, owes its legitimacy exclusively to the consent of the People”.

227. Situating the role of the Government in its constitutional context, it is of fundamental importance that the Government is not only largely comprised of elected representatives but is also made accountable to Dáil Éireann and in constitutional terms, Dáil Éireann is the House of Representatives (Article 15.1.2°) and represents “the People”. Every citizen over the age of 18 (not disqualified by law and otherwise eligible in accordance with law) has the right to vote at election for members of Dáil Éireann (Article 16.1.2°), the aim of Article 16.2 being to ensure that Dáil Éireann is properly representative of the People.

228. It is manifest that the constitutional order envisages a supervisory role on the part of Dáil Éireann in holding the Government to account and ratifying State expenditure thereby maintaining the People’s absolute sovereignty and securing political control over the exercise of power. As set out earlier in this judgment, the pre-eminence of the Dáil as representative of the People’s sovereignty is apparent from Article 17 which vests the Dáil with specific duties in respect of the Estimates of Receipts and Expenditure of the State, requiring that the Dáil consider them as soon as possible after presentation by the Government under Article 28.4.4°. Thus, before passing the appropriation of revenue or other public monies, the Dáil must be satisfied in accordance with Article 17.2 that the appropriation has been recommended by a message from the Government signed by the Taoiseach. In like manner, Articles 20 and 21 restrict the power to initiate or amend Money Bills to Dáil Eireann, underlining that State expenditure is ultimately a matter for the People through their elected representatives sitting in Dáil Éireann.

229. While Article 6 of the Constitution describes the three arms of Government, it does not establish the separation of powers and leaves that to be addressed by other provisions of the Constitution. The internal executive power of the State is exercised by the Government as per Article 28.2; the legislative power is vested in and exercised by the Oireachtas under Article 15.2 and the judicial power is exercised by the courts established under Article 34 (subject to Article 37).

230. When Article 28 is viewed in the context of an overall constitutional design and architecture to give effect to the distribution of powers ordained under Article 6, the requirement in Article

28.2 that the executive power of the State be exercised “by or on the authority” of the Government makes clear that the power of the Government, like that of the Legislature and the Judiciary, is separate and distinct and, therefore, falls to be exercised separately and distinctly.

231. In Boland the description of “checks and balances” was used by reference to the manner in which the Government is made “primarily responsible” to Dáil Éireann for such declaration of policy, with the High Court in that case declining jurisdiction in respect of the exercise of the executive power of the State, under Article 29 of the Constitution, in relation to the Sunningdale Agreement. Denham J. returned to this theme in her judgment in McKenna (No. 2), when she observed that the Constitution “recognises that the fundamental power rests in the People. The Constitution envisages a true democracy the rule of the People” (at p. 51).

232. By making the Government responsible to Dáil Éireann, the Constitution ensures that the Government is responsible to the People’s representatives. As stated in Byrne v. Ireland [1972] I.R. 241 (page 262, per Walsh J., and cited by Denham J. in McKenna (No. 2)), “the State is the creation of the People and is to be governed in accordance with the provisions of the Constitution which was enacted by the People and which can be amended by the People only, and…the sovereign authority is the People”.

233. Citing O’Donovan, Denham J. in McKenna (No. 2) referred to the right to equal treatment in the political process (a theme which we explore further in our judgment in the Murphy proceedings), finding it a breach of the concept and spirit of constitutional equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum. Addressing the right to a democratic procedure in referenda, Denham J. stated that the citizen is entitled to a democracy, free from governmental intercession with the process and no branch of the government is entitled to use taxpayers’ monies from the Central Fund to intercede with the democratic process. She quoted from Dr. Kohn in “The Constitution of the Irish Free State”, where writing of the 1922 Constitution, he stated:

“A constitution based on a wide suffrage, Proportional Representation and a rational distribution of constituencies, embodying an elaborate system of checks and balances designed to preclude the growth of autocratic tendencies in any of its organs, such a framework, whatever might be thought of some of these devices, could claim to have not merely proclaimed the sovereignty of the people in the abstract, but to have invested it with concrete reality” (at p. 116).

234. Although written with respect to the 1922 Constitution, Denham J. considered the words could have been written for Bunreacht na hÉireann, adding:

“the organs of government are instruments of the People. Thus, the democratic process is fundamental and critical to the exercise of power under the Constitution” (at p. 54).

235. As noted by Finlay C.J. in Hamilton (No. 1), under Article 28.10 the members of the Dáil have “…the ultimate sanction and control, if they cease to support the decisions and policies of any government, to cause its dissolution or, in the alternative, to cause the declaration of a general election, permitting the People, if they see fit, to elect a different government” (at p. 271).

236. In Kavanagh v. Ireland, [1996] 1 I.R. 321, Keane J. observed that while all three organs of State derive their powers from the People, the Government and the Oireachtas are accountable, directly and indirectly, to the People in the electoral process (see page 363). The same sentiment was expressed by Hogan J. in his judgment in Delaney v. The Personal Injuries Board & Ors [2024] IESC 10, albeit in the context of discussing the differences between the exercise of the Article 15 legislative power, on the one hand, and the Article 34 judicial power, on the other hand, when he observed at paragraph 15 of his judgment, that “[t]he Government is accountable to Dáil Éireann (Article 28.4) and the Oireachtas itself must subject itself to the judgment of the electorate in the manner provided for by Article 16 and Article 18 and within the time period specified by the Electoral Acts” (at p. 7).

237. The question begged by all of this, and the central issue for us, is whether the attendance and participation of Ministers of State, not members of Government constitutionally appointed, in meetings of Government, infringes the Constitution, expressly or impliedly, on a harmonious and holistic interpretation of Article 28 informed by its own terms and the constitutional framework within which it operates, with particular regard to the democratic nature of the State and the foundational concept of popular sovereignty.

(E) No Express or Implied Infringement of Article 28

238. When regard is had to the terms of the Constitution itself, it is clear that it does not, expressly or impliedly, restrict the attendance and participation, at the invitation of the Taoiseach, at meetings of the Government on disparate occasions, or alternatively, on a regular basis, of: (a) individuals, Ministers of State, officials, experts, and other persons, dealing with discrete or “one-off” issues (b) the Cabinet Secretary (or the Assistant Secretary General in his or her absence) (c) the Attorney General, (d) the Minister of State at the Department of the Taoiseach (appointed by the Government on the nomination of the Taoiseach), who holds the position of Chief Whip, at Government meetings. Further, the Constitution states in Article 30 that the Attorney General is not a member of Government and says nothing about the Secretary General to the Government or the role and position of the Chief Whip.

239. In seeking to urge, from an interpretative perspective, a constitutional principle (express or implied) which restrains the regular attendance and participation at meetings of the Government of the relevant Ministers of State, a striking aspect of Deputy Daly’s interpretation of Article

28 is how the terms of Article 28, properly construed, can be interpreted as allowing the attendance at meetings of the Government of the Chief Whip, the Secretary General to the Government, and the Attorney General whilst disallowing the relevant Ministers of State attending meetings of the Government.

240. We do not consider that an argument which seeks to distinguish between the level of participation at meetings of the Government as between the Chief Whip or the Cabinet Secretary or the Attorney General and the level of participation of the relevant Ministers of State (who may, of course, include the Chief Whip wearing a different “Departmental hat”) assists Deputy Daly’s arguments. We consider there to be a fundamental incongruity arising from this distinction in this constitutional challenge. Traditionally, the Minister of State in the Department of the Taoiseach is the Government Chief Whip who deals with the management of Government business (David Gwynn Morgan, Constitutional Law of Ireland: The Law of the Executive, Legislature and Judicature, (1990) at page 55) discharging a significant role. Where Deputy Daly does not dispute the legitimacy of this attendance and participation of the Chief Whip, it is difficult to decipher a rational basis for adopting a different approach to the participation of the other relevant Ministers of State.

241. More importantly, however, we are satisfied that the attendance of the relevant Ministers of State at Government meetings does not erode Government accountability to the Dáil as required by Article 28.4.1° (explored further in our consideration of the concept of collective responsibility under Article 28.4.2° below). The Dáil retains the ultimate sanction and control. If it ceases to support the decisions and policies of any Government, it may cause a dissolution and the declaration of a general election, permitting the People, if they see fit, to elect a different Government (Article 28.10).

242. Nor can we see how the attendance of the relevant Ministers of State at meetings of Government interferes with that electoral process. Final judgment continues to lie with the electorate in the manner provided for by Articles 16 and 18 of the Constitution. The power of the People sitting in final judgment is unaffected by the attendance of the relevant Ministers of State at Government meetings. Indeed, their attendance at meetings of Government is a result of the electoral process which requires Government to negotiate diverse political support to maintain a functioning balance of power.

243. Similarly, we fail to see any interference with the requirement that the power of the Government, like that of the Legislature and the Judiciary, be exercised separately and distinctly as part of a tripartite separation of powers. The presence of the relevant Ministers of State at Government meetings does not subvert the authority or reduce the responsibilities of the 15 members of Government.

244. Importantly, we are satisfied that decisions by Government remain the decisions of the 15 presidentially appointed Ministers. In this regard, the evidence in relation to decision-making at Government meetings (more fully explored in Murphy) demonstrates that decision-making requires the consensus of the 15 members of Government.

245. Furthermore, while on the evidence voting is not a feature of Government meetings, if a matter were to go to a vote, third parties present in the room, including the relevant Ministers of State, would not be entitled to vote. The evidence supports a conclusion that the relevant Ministers of State do not make decisions at Government, notwithstanding that they are party to discussions. There is no undermining of Article 28.2 and the exercise of executive power by or on the authority of the Government in those circumstances.

246. Given that it has been clearly established that decisions at Government are taken by consensus of the members of Government (with the possibility of a vote of the 15 members if necessary), it is difficult to see how the participation of relevant Ministers of State in discussions at Government meetings could be conceived of as an erosion of the authority of the Government. Self-evidently, being open to discussion does not result in the Government losing its decisionmaking authority.

247. It is also established in the evidence that the relevant Ministers of State do not have equal access to full Government Ministers through eCabinet in the preparatory stages and are curtailed in their ability to initiate decision-making at Government meetings by the fact that they are unable to bring Memoranda to Government. We accept as established on the evidence (more fully interrogated in Murphy) that only Government Ministers have the power to bring Memoranda to Government, albeit this may be done in conjunction with a relevant Minister of State. This signifies both that authority rests in Government composed of 15 members and that the Government is responsible for the Departments administered by the members of the Government (Article 28.4.2°) and in the charge of a designated member of Government (Article 28.12), not the relevant Minister of State.

248. Insofar as departmental business is concerned, under the constitutional and legal framework which applies (including the 1924 Act (as amended) which prescribes that the Government Minister personifies the Department in law and as corporation sole bears responsibility in law), it is the Minister of Government who heads the department, not a Minister of State exercising delegated powers. The Minister of Government, by remaining individually in charge of the Department, is also accountable at Government meetings in respect of same. Legally and practically, Ministers of State are not responsible for Departments of State but exercise delegated, concurrent functions pursuant to s. 2 of the 1977 Act. This, in turn, is entirely consistent with the requirements of Article 28.4.2° of the Constitution that the Government be collectively responsible for the Departments of State administered by the members of Government.

249. The evidence as to the practice of the business of Government demonstrates a recognition of the fact that the relevant Ministers of State are not members of Government but have merely been afforded the privilege of participating at meetings as part of political negotiations in the formation of Government and thereby enjoy a position of enhanced political influence. This is especially apparent through the eCabinet system, the power to present Memoranda to Government, the role of consensus in decision-making and the fact that each Department of State remains under the umbrella of one or more Government ministers.

250. Crucially, the 15 members of Government remain accountable to the Dáil for the decisions taken in Government. We consider the role of the Minister of State, including that of the relevant Ministers of State, to be parasitic on that of the Government Minister in the sense that Ministers of State do not have independent powers but derive their powers pursuant to statutory delegation and hold them concurrently with the relevant Minister(s) of Government.

251. In our view, a harmonious and holistic interpretation informed by context and purpose considered above does not support the complaint in these proceedings, namely that the Government, or the Taoiseach, has unconstitutionally permitted the attendance and participation by the relevant Ministers of State at Government meetings. It seems to us that the attendance at and participation of the relevant Ministers of State in Government meetings does not undermine, from the perspective of constitutional principle, the constitutional prescription that Dáil Éireann is the body which holds the Government to account or that Government powers are exercised only by or on the authority of members of the Government as a collective. Rather, the process of Government formation and the ability of Dáil Éireann to hold a Government to account (as per Article 28.4.1°) are the necessary consequences of the vote of the People in a General Election and an aspect of popular sovereignty mandated by the Constitution.

252. The participation of relevant Ministers of State at Government meetings does not subvert the collective authority of the Government or otherwise diminish the responsibility of Government as a collective for the Department of States administered by the Ministers of Government. The fact that a Minister of Government delegates tasks to Ministers of State in accordance with law does not alter the fact that the Minister of Government is in overall charge of the Department of State as a member of Government. It is recalled that the Constitution expressly envisages in Article 28.12 that the organization of and distribution of Government business amongst Departments of State and the designation of members of Government to be “in charge of the said Departments”, shall be regulated in accordance with law. Legal provision for the appointment of Ministers of State who exercise delegated powers pursuant to statute under the charge of a designated member of Government was clearly contemplated by the framers of the Constitution. Current practices giving effect to the organization and distribution of business in the manner intended by Article 28.12 are, therefore, entirely compatible with the Constitution.

253. Our views in this regard are further borne out when the twin constitutional concepts, located in Article 28 of the Constitution and relied on by Deputy Daly, namely, “collective responsibility” and “cabinet confidentiality” are assessed individually and sequentially. We now address each in turn.

(F) Collective Responsibility

254. As we have noted above, the Constitution provides that the Government shall be responsible to the Dáil (Article 28.4.1°) and shall meet and act as a collective authority and be collectively responsible for the Departments of State administered by the members of the Government (Article 28.4.2°) and for the confidentiality of discussions at meetings of the Government subject to a prescribed exception (Article 28.4.3°). Each of these provisions inform the concept of collective responsibility under the Constitution.

255. The theme of collective responsibility was discussed in both the majority and dissenting judgments in Hamilton (No. 1). In his judgment Finlay C.J. observed that Articles 28.4.1° and 28.4.2° of the Constitution:

“impose upon the members of the Government separate though clearly related obligations, and these are: (1) They must meet as a collective authority (2) They must act as a collective authority (3) They must be collectively responsible for all the Departments of State and not merely the one which each of them administers (4) They have as a Government a responsibility to Dáil Éireann. These obligations involve some obvious, necessary, consequential duties…the necessity for full, free and frank discussions between members of the Government prior to the making of decisions, something which would appear to be an inevitable adjunct to the obligation to meet collectively and to act collectively. The obligation to act collectively must, of necessity, involve the making of a single decision on any issue, whether it is arrived at unanimously or by a majority. The obligation to accept collective responsibility for decisions and, presumably, for acts of government as well, involves as a necessity, the non-disclosure of different or dissenting views held by members of the Government prior to the making of decisions” (at p. 266).

256. The use of the word “responsible” in Article 28.4.1° was considered by McCarthy J. in his dissenting judgment in that case. He considered the word “responsible” meant answerable or accountable, a meaning borne out by the Irish text “freagrach”. He cited submissions before the Court which described the Government meeting referred to by the use of the word “meet” in Article 28.4.2 as “at the very core of the exercise of the executive power”.

257. In his judgment, O’Flaherty J. (in the majority as to the result), observed that the accord that exists between the Dáil and the Government is that, once elected, the Government is taxed with the responsibility of taking decisions and in respect of those decisions it is responsible to Dáil Éireann, such that if a majority of Dáil Éireann resolves that it does not agree with the Government then a motion of no confidence may be passed on the Government. He added, however, that Dáil Éireann:

“cannot possibly be concerned with the process of dialogue by which the Government evolves its policies or reaches its decisions. That would involve the legislature invading the sphere of the executive which is not permissible under the doctrine of the separation of powers” (at p. 301).

258. In his judgment O’Flaherty J. quoted from Dooney & O’Toole, Irish Government Today (1992) for its explanation of the concept of collective cabinet responsibility in which it was stated:

“once a cabinet decision is taken, it reflects the decision of all the ministers, and a minister who is fundamentally opposed to the decision should, in theory, resign” (at p. 302).

259. The Government is, by the text of Article 28.4.1° of the Constitution, responsible and accountable to the Dáil, the directly elected House of the Oireachtas (per O’Donnell C.J. at paragraphs 24, 35, 48 of Burke). This constitutes the primary (but not exclusive or only) method by which the scrutiny of Government decisions is to be enforced. Government accountability to the Dáil is, in turn, closely tied with the concept of collective responsibility and the requirement that the Government shall meet and act as a collective authority and that it shall be collectively responsible for the Departments of State administered by the members of the Government (Article 28.4.2°).

260. Other provisions relevant to the principle of collective responsibility include the requirement that the Taoiseach resign from office upon his ceasing to retain the support of a majority in Dáil Éireann unless, on his advice, the President dissolves Dáil Éireann and, on the reassembly of Dáil Éireann after its dissolution, the Taoiseach secures the support of a majority in Dáil Éireann (Article 28.10), and the proviso that if the Taoiseach at any time resigns from office the other members of the Government shall be deemed also to have resigned from office, but the Taoiseach and the other members of the Government shall continue to carry on their duties (in an acting capacity) until their successors shall have been appointed (Article 28.11.1°) and, that the members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed (Article 28.11.2°).

261. The legal challenges brought by both Deputies centre on the formation of the 35th Government in the 34th Dáil and the Taoiseach’s invitation to the relevant Ministers of State to attend Government meetings as part of an agreement in the formation of the Government. Within the Government, the Taoiseach is the pre-eminent figure. The Constitution describes the Taoiseach twice as “the head of the Government or Prime Minister” (Articles 13.1.1° and 28.5.1°). Professor James Casey observes that the other constitutional references to the Taoiseach emphasise his “status” as Prime Minister (James Casey, Constitutional Law in Ireland, (Third Edition, Round Hall Sweet & Maxwell, 2000), at page 155.

262. In some instances, key decisions are made by the Taoiseach alone. In other instances, they are made by the Government. The Constitution, for example, provides that the Taoiseach nominates (Article 13.1.2°) and, if necessary, can dismiss the members of the Government (Articles 28.9.4° and 13.1.3°). The pre-eminent role afforded to the office of the Taoiseach in the Irish Constitution was referred to by Hogan and Hogan, in their analysis of the 2020 General Election. They suggest that the practice whereby the Taoiseach would resign if he failed to be re-elected upon the assembly of the Dáil following the General Election has stood the test of time, commenting that:

“This practice reinforces ordinary democratic principles and reflects the requirements of Article 28.10 of the Constitution and it is also at that point that the Government ceases to hold office for the purpose of Article 28.11.2° but the acting Taoiseach and his Ministers continue ‘to carry on their duties’ for the purposes of Article 28.11.1° until their successors have been appointed” (Gerard Hogan and Hilary Hogan “Legal and Constitutional Issues Arising from the 2020 General Election” (2020) 63 Irish Jurist 113, 113-142).

263. The Taoiseach has been described as the essential “pivot” on which the Government rests and the variations in the power, performance and style of successive Taoisigh arises from differences of character and from the circumstances in which they have found themselves. Ultimately, the power of an individual Taoiseach is dependent upon electoral results and the numbers in the Dáil (Professor Basil Chubb, The Government and Politics of Ireland at pages 187-188 (3rd edition, 1992). Whilst Dr. Kohn’s understandable analogy with the British Prime Minister when this seminal textbook was first published in 1932 is no longer directly relevant to the constitutional position of the Taoiseach in the 1937 Constitution, some years before Professor Chubb’s analysis, he too referred to the predecessor of the Taoiseach as the “pivot” and the following observations emphasise the significance afforded to the role of the predecessor to the Taoiseach, the President of the Executive Council, under the 1922 Constitution and in, particular, the role of the “Department of the President of the Executive Council” (now the Department of the Taoiseach) in providing the Secretariat to the Cabinet:

“The position of the President of the Executive Council is practically analogous to that of the British Prime Minister. He is the pivot of the governmental system. He selects his team of Ministers, and though the constitution requires the specific assent of the Dáil before his nominations are presented to the Governor-General, that provision, as previously shown, must remain a dead letter. The decision as to which Ministers are to be included in the Executive Council as to which are to hold merely ‘extern’ rank is expressly vested in the President by the terms of the Ministers and Secretaries Act (s.3). In a very specific manner the Constitution marks him out as the embodiment of the collective responsibility of the Cabinet: it is when he ceases to retain the support of a majority in the Dáil that the Cabinet as a whole is required to resign (Art.53). On the other hand he has not, under the terms of the Constitution, the power to advise a dissolution on his sole authority, which the modern practice of the British Constitution attributes to the Prime Minister. The Department of the President is in essence the Secretariat of the Cabinet. It is an agency of record and executive authorisation. It also forms the normal channel of official communication between the Cabinet and the Governor-General. It is further invested by the Ministers and Secretaries Act with the custody of the seal of the Executive Council, the control of official publications and the administration of such services as are not at any time specifically allocated to any of the other Departments…”(Kohn, The Constitution of the Irish Free State, (1932) pp. 301-302) (Emphasis is in the original text).

264. In Constitutional Law of Ireland: The Law of the Executive, Legislature and Judicature, (1990), at page 56, Professor Gwynn Morgan observes that the real power of the Taoiseach, in particular, his authority vis-á-vis his colleagues in the Government, is a matter which is peculiarly ill-fitted to definition in a series of rules because so much depends on circumstances and personalities.

265. We have in this judgment (and in the related judgment in the Murphy proceedings) contextualised how the provisions of Article 28 incorporate the political system through, for example, the electoral process and the accountability of the Government to the Dáil. The Taoiseach is the central figure of the dramatis personae involved. He or she is the person who, as part of the political arrangement in the formation of Government, invites those who are not members of the Government to that first meeting in Áras an Uachtaráin at which meeting, the Government on the Taoiseach’s nomination, appoints the Chief Whip and the relevant Ministers of State. It is the Taoiseach who chairs the meetings and the evidence in both cases confirms that the personality of the “Chair” informs the nature of the meeting. Professor Chubb has observed, for example, that in their different ways, de Valera and Lemass were, to employ Professor Brian Farrell’s typology of “Chairman” or “Chief”, “the very epitome of chiefs” whereas coalition governments were bound by coalition pacts and understandings resulting in the head of those governments not having, for example, sole control over the power of appointment and dismissal or the allocation of Departments of State (Professor Basil Chubb, The Government and Politics of Ireland at pages 187, 188 (3rd edition, 1992).

266. By the constitutional scaffolding provided in Article 28 in conjunction with the requirement that the Government is responsible to the Dáil, the Constitution expressly incorporates the political process associated with that particular Dáil and a similar accountability attaches to the office of the Taoiseach as head of the Government.

267. It is nonetheless fair to observe, as indeed Professor Basil Chubb has (see The Government and Politics of Ireland (1992, 3rd Ed.), Chapter 9, “The Policymakers”) that the Constitution gives an incomplete outline of the functions performed by Government. While the members of the Government are politically responsible, both collectively and individually, to the Dáil, the principles of collective and individual responsibility are imprecise. In general, although each Minister/member of the Government has special responsibility for a given area of State activity and conducts the affairs of his own Department (speaking and answering for it in the Government, in the Oireachtas and in the community), the Government is held liable for policy and the way public affairs are conducted. Constitutionally, the Dáil has the power to effect the removal of the Taoiseach and his or her Government if a majority of TDs so desires but, in practice, given the party composition of the Dáil and the support for leaders, individual Ministers and Governments are rarely dismissed by the actions of the Dáil.

268. In providing that the Government is responsible to Dáil Éireann (Article 28.4.1°) and not the Oireachtas generally and that the Government is collectively responsible for the Departments of State administered by the members of the Government (Article 28.4.2°), the Constitution has prescribed the Dáil as the ultimate repository of accountability for the review and control of the executive power of the State exercised by or on the authority of the Government. By virtue of the express language of Article 28.2 of the Constitution, the exercise of the executive power of the State exercisable by or on the authority of the Government is “subject to the provisions of this Constitution”.

269. The syntax and structure of Article 28.2 of the Constitution (“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government”) unsurprisingly shares similar features with Article 29.4.1° of the Constitution (“The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government”).

270. In Pringle v. Government of Ireland [2012] IESC 47, [2013] 3 I.R. 1 (“Pringle”) O’Donnell J. observed that:

“…Article 29.4 makes it clear that it is the Government which shall conduct external relations and by its reference to Article 28 emphasises that in that respect, the Government is responsible to the Dáil. That is the method the Constitution envisages for review and control of the exercise of the Executive power in the conduct of foreign relations…” (at p. 104).

271. The exercise of executive power (Article 28.2) and the holding of the exercise of that power to account internally (Article 28.4.1°) and externally (Article 29.4.1°) continues irrespective of whether Super Junior Ministers, or indeed others, attend Cabinet meetings. As observed In the matter of Article 26 of the Constitution and in the matter of the Judicial Appointments Commission Bill 2022 [2023] IESC 34 (“JAC”), at paragraphs 116 and 117 of their judgment, the Supreme Court referred to Articles 28.1 and 13.1 before stating “Also of note is Article 28.2, and it would be helpful to set that out in full. It provides: ‘The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.’ It should also be noted that Article 28.4.1° provides that the Government shall be responsible to Dáil Éireann…”(at p. 53).

272. The inherently political nature of this accountability is linked to the requirement of the Government to maintain the confidence of the Dáil which will be informed by the results of the previous General Election and the distribution of elected deputies from the political parties who contested that election and who subsequently occupy the seats in that Dáil.

273. The practical working out of this relationship of accountability between Articles 28.2 and Article 28.4.1° in the context of the application of the Carltona principle in an immigration case was evident in the following observations of the High Court in F. L. v. The Minister for Justice and Equality [2012] IEHC 189, where at paragraphs (13) and (14) of his judgment Hogan J. observed that “(13)…Nearly every statutory power which is devolved by law on Ministers by the Oireachtas involves the exercise of executive power in one shape or another. It cannot follow from this premise that the relevant Minister must be expected to take every decision of this kind personally. All that Article 28.2 of the Constitution requires is these powers are exercised ‘by or on the authority of the Government’ and Article 28.4.1° requires that the Minister (as a member of Government) remains responsible to Dáil Eireann. (14) The decision taken by Mr. Waters was taken ‘on the authority of the Government’ in this sense in that Mr. Waters was duly authorised by the Minister to take decisions of this kind. The Minister further remains answerable and politically accountable to Dáil Eireann in respect of these decisions in the manner required by Article 28.4.1°…” (at pp. 6-7).

274. Article 28.2 is often referenced as exemplifying the executive arm of Government in the context of the general description of the separation of powers in Article 6. A good deal of legislation now regulates what was the previous exercise of the executive powers of the Government under Article 28.2 in, for example, the area of asylum and immigration (Laurentiu v. Minister for Justice [1999] IESC 47 [1999] 4 I.R. 26 and NHV v. Minister for Justice [2017] IESC 35, [2018]

1 I.R. 246) and in the treatment of disturbed teenagers (TD v. Minister for Education [2001] 4 I.R. 259): see the observations of the Supreme Court in JAC at paragraph (200). It has been observed that at its most basic, the executive power provided for in Article 28.2 involves giving effect to legislation passed by the Oireachtas while simultaneously respecting and enforcing court decisions: B v. The Child & Family Agency & Ors [2025] IESC 2 per Hogan J. at paragraph (61). What is crystal clear from these decisions is that all that Article 28.2 requires is that executive powers are exercised “by or on the authority of the Government”.

275. When the Dáil is in session, accountability is severally achieved through parliamentary debates, the posing of parliamentary questions (“PQs”), through Oireachtas committees (select committees, joint committees, standing committees and special committees) and through votes in the House. There is undoubtedly a close relationship between the executive and legislative branches - to borrow from the language of O’Donnell C.J. in Costello, at paras. 5(viii) and 73, the separation of powers effected by the Constitution is not “hermetically sealed”.

276. The pattern of executive control being exercised predominantly through legislation reflects the stark reality that, generally (where, for example, it has the support of a majority of Dáil deputies) the Executive Branch operates on the basis that parliament poses no real threat to it. The political reality is that under a fused executive-legislative model, a political process predicated on the operation of disciplined political parties and an electoral system which can return a range of outcomes between single party and coalition government, but where the Government can call on the support of a majority of the Dáil, usually results in the de facto control by the Executive (the Government) of the Legislature. This requires to be seen not as undermining of the power of the Dáil to hold the Government to account nor as a diminution of the role of the People but, on the contrary, as an expression of the will of the People, constitutionally protected by the electoral process established under the Constitution.

277. In providing that “The Government shall be responsible to Dáil Éireann” therefore, the Constitution envisages that Government accountability falls to be addressed by the political system, presuming that constitutional parameters are observed and safeguarded in the political process. Subject to compliance with constitutional requirements in relation to the formation and conduct of Government (non-compliance potentially being a matter for the courts), how Article 28.4.1˚ of the Constitution is implemented is dependent on the related electoral and political processes.

278. It further seems to us, and we have seen no evidence to the contrary, that participation of others in a meeting of the Government does not in any way detract from the responsibility of the Government as a group of fifteen, answerable to Dáil Éireann. As the Government remains collectively responsible to the Dáil and accountability is not diluted by the participation in Government meetings of Ministers of State who are not members of Government, we do not see how the invitation to the relevant Ministers of State to attend regularly at Government meetings falls foul of the constitutional requirements of collective responsibility or that it could be said to be in clear – or any – disregard of an express or implied constitutional requirement.

279. Further, an overview of the outcome of General Elections since 1937 shows that the varied level of effectiveness of the Dáil’s accountability over a Government is dependent on a range of factors, including, for example, the outcome of each general election to successive Dála, the cohesiveness of the Government that is formed and its “political” composition, the discipline of the political parties from which a Government is formed, the perspective of independently elected deputies and the nature of the support given to that Government. Of course, the effectiveness of the Dáil’s accountability is fluid. It can ebb and flow within the lifetime of a Dáil as the vicissitudes of politics unfold. It is by no means set in stone at the point that a Government is formed. This point can be made by reference to any one of the 35 Governments which have governed in Ireland.

280. Examples in recent political history illustrate the political nature of accountability envisaged under Article 28.4.1° of the Constitution. We need refer only to the ending of the second of the two Governments of the 30th Dáil (the 28th Government which was a coalition government comprised initially of Fianna Fáil, the Green Party and the Progressive Democrats - later independents) at the end of 2010, beginning of 2011, as a result of politically tumultuous events, in the context of a number of members of the Government resigning and its coalition partner vetoing their replacement, is instructive. In that instance a majority administration became a minority administration requiring an early general election as the minimum number of members of the Government prescribed in Article 28.1 of the Constitution was within sight. This period of late 2010 – early 2011 exemplifies the political nature of the accountability envisaged by Article 28.4.1° of the Constitution.

281. This example illustrates the point that when the Constitution incorporates the political process as the vehicle for accountability over executive action, the application of collective responsibility is subject to the vagaries of that system.

282. Of course, the nuances of the political process could mean that a lessening of de facto control by the Government of the legislative agenda does not necessarily result in the Government being any less accountable to the Dáil. If anything, the contrary may be the case, in that the Government’s legislative agenda may be more controlled because of the need to garner Dáil support beyond the party-political system.

283. While the participation of Ministers from outside the main parties in Government assists in the process of garnering support in the Dáil, it does not change the fact that the Government remains accountable to the Dáil. Accordingly, although a relevant Minister of State may be expected to support the Government in votes in the Dáil, his ability to do so results from the outcome of the electoral process and does not alter the fact that the Government remains accountable to the Dáil and through its elected representatives, to the People.

284. Constitutionally and legislatively, together the provisions of Articles 28.4.1º, 28.4.2º, 28.12 and the 1924 Act (as amended) emphasise the requirement of collective responsibility.

285. Article 28.12, for example, provides for the legal regulation of the Departments of State, namely, their organisation, the distribution of business between them, the designation of members of the Government to be Ministers in charge of the Departments, the discharge of the functions of the office of a member of the Government during his temporary absence or incapacity, and the remuneration of the members of the Government.

286. In Shatter v. Guerin [2021] 2 I.R. 415 (“Shatter”), McKechnie J. in the Supreme Court observed (at paragraph 85, page 475) in his judgment, when discussing the constitutional and legal status of a Minister and a Department of State, that:

“…Article 28.12 of the Constitution provides that the organisation and distribution of business amongst Departments of State is to be regulated by law; such law is essentially still that contained in the 1924 Ministers and Secretaries Act (“the 1924 Act”). It is by virtue of those provisions, together with some later amending and supporting legislation, that the executive branch of government is structured.”

287. The 1924 Act (as amended) provides that the individual member of the Government (the Senior Minister) leads or heads a Department of State and has overall legal responsibility for departmental activity. Under the 1924 Act he or she personifies the Department in law and as corporation sole bears responsibility in law for its actions whether performed by the Minister or the civil servant and “…[t]he individual powers and responsibilities so conferred are subject only, in a substantive legal sense, to the provisions of Article 28.4.2° of the Constitution which requires the government to be ‘collectively responsibility for the Departments of State administered by the members of the Government’” (per McKechnie J. in Shatter at para. 88).

288. Initially, therefore, the 1924 Act provided for the appointment by the (then) Executive Council of a maximum of seven “Parliamentary Secretaries”. In 1977, this provision was repealed and replaced by a measure allowing for the appointment of “Ministers of State” from among members of either house to a maximum of initially 10 and then 15.

289. As we have seen earlier in this judgment, s. 2 of the 1977 Act is the foundation of the legal relations between members (Ministers) of the Government and Minister of State and provides for the concurrent delegation of powers and duties from members (Ministers) of the Government, who are in charge of a particular Department of State, to Ministers of State who have been appointed to that Department by the Government at the nomination of the Taoiseach. Section 2(2)(a) to (f) of the 1977 Act – which applies to all Ministers of State whether attending Cabinet or not – emphasises the more senior (superior) status of the position of the member of Government vis-à-vis a Minister of State, the concurrent nature of the delegation, and consistent with this, and notwithstanding the fact of delegation, the member of Government (as the delegator) remains accountable to the Dáil by expressly providing that:

“…(a) the Government may at any time revoke the delegation either at the request of the Minister of the Government on whose request it was made or without any such request,

(b) the delegation shall terminate on the happening of either or both of the following events, that is to say, the Minister of the Government on whose request such delegation was made ceasing (otherwise than by a resignation from office to which Article 28.11.1° of the Constitution refers) to be the Minister of the Government to whose powers and duties the delegation relates or the Minister of State to whom the delegation was made ceasing to be Minister of State assigned to the Department of State of which the said Minister of the Government has charge,

(c) the delegation shall operate, so long as it continues in force, to confer on and vest in the Minister of State to whom it is made each of the statutory powers and duties delegated by the delegation,

(d) every statutory power and duty delegated by the delegation shall be exercisable and performed by such Minister of State in his own name but subject to the general superintendence and control of the Minister of the Government on whose request it was made and subject to any conditions or restrictions stated in the delegation,

(e) every statutory power or duty delegated by the delegation shall, notwithstanding the delegation, continue to be vested in the Minister of the Government on whose request the delegation was made but shall be so vested concurrently with such Minister of State and so as to be capable of being exercised or performed by either such Minister of the Government or such Minister of State, and,

(f) the delegation shall not remove or derogate from the responsibility of the Minister of the Government on whose request it was made to Dáil Éireann or as a member of the Government for the exercise or performance of the statutory powers and duties thereby delegated….”

290. In contrast to members of the Government, a Minister of State is not a creature of the Constitution deriving status or authority from the Constitution. By virtue of s.2(2)(d) of the 1977 Act powers exercised by a Minister of State pursuant to statute (as opposed to the Constitution) remain subject to the general superintendence and control of a Minister/member of the Government who in turn remains answerable to Dáil Éireann. This provision is wholly consistent with the requirement under Article 28.4.2° that the Government shall be collectively responsible for “the Departments of State administered by the members of the Government” and with the provisions of Article 28.12, referred to earlier.

291. As described in the Department of Taoiseach Cabinet Handbook (which, of course, has no legal status), the powers, functions and status of a member of the Government when attending a meeting of the Government are different to those of the relevant Ministers of State who attend Cabinet on a regular basis, at the invitation of the Taoiseach. Those Ministers of State have a different role and that role does not change by virtue of their regular presence and participation at meetings of the Government at the invitation of the Taoiseach. Their status as Ministers of State before they enter the meeting of the Government is the same as when they attend at the meeting. Members of the Government may not be excluded from a meeting of the Government, which is not the case in respect of Ministers of State. Ministers of State do not participate in incorporeal meetings highlighting that they are not members of Government and have no

decision-making entitlement.

292. Consistent with this framework, the Cabinet Handbook refers to the “Delegation of Functions” at paragraphs 1.21 and 1.22 and makes a distinction between Members of the Government, on the one hand, and Ministers of State, on the other, as follows:

“(1.21) Performance of Functions during Ministerial Absence

Whenever a Minister is due to be absent for a period of time, the Head of the Department should consider whether it is necessary to formally vest responsibility in another Minister by way of an Agency Order to be made by the Government. Further guidance can be sought from the Government Secretariat.

(1.22) Delegation of Ministerial Functions to Ministers of State

The Ministers and Secretaries (Amendment) (No. 2) Act, 1977, provides for the delegation of a Minister’s powers and duties to Minister(s) of State by Order made by the Government at the request of the Minister concerned. It has been the practice for such orders to be made in cases where a Minister of State would be expected to carry out statutory functions on behalf of a Minister.

It is the responsibility of the Minister and Department concerned to establish whether or not a formal delegation of functions is required. The Secretary General of a Department should consider the need for a Delegation of Functions Order whenever a Minister of State is appointed to the Department.

As the 1977 Act makes clear, the Minister remains responsible to Dáil Éireann for the exercise or performance of any powers or duties delegated to a Minister of State. Delegation arrangements should be regularly reviewed to take account of legislation enacted subsequent to any Delegation of Functions Order being made. Delegation Orders cease to be valid if the Government Minister in question ceases to hold (that particular) office. Even if there is no change of Minister of State to whom function(s) were delegated, a fresh Delegation of Functions Order is necessary in those circumstances. Delegation of non-statutory responsibilities is generally made by way of an informal understanding between a Minister and Minister of State.”

293. Thus, rather than being entitled to do so, it is through standing orders and custom and practice of the Oireachtas, that Ministers of State are treated for several purposes in the same way as members of the Government, including, for example, when presenting a bill or speaking in the House of which they are not members. A Government order may be made on the request of a Minister/member of the Government delegating to his or her Minister of State all the Minister’s powers and duties under a particular Act and any particular statutory power or duty. There are clear limits on this power of delegation, however Professor Gwynn Morgan identifies five such limitations as follows (David Gwynn Morgan, Constitutional Law of Ireland, at page 60):

“First it may be revoked by the Government at any time, even without a request by the Minister of the Government. Secondly, it automatically terminates if the identity of either of the Minister of the Government or Minister of State changes and, for this reason, the order mentions the Minister of State by his name. Thirdly, the power delegated is exercisable by the Minister of State in his own name but ‘subject to the general superintendents in control of the Minister’. Fourthly, the power delegated continues to be vested in the Minister so that it can be exercised either by him or by the Minister of State. Finally [Fifthly], the Minister remains responsible, politically or legally for the exercise of the power delegated.”

294. Accordingly, overall responsibility remains with the Minister/member of the Government who in turn remains accountable to the Dáil. Notwithstanding such delegation of powers as may occur, the fact remains that the function of a Ministers of State is to assist a Minister/member of the Government who is the head, and in charge of, the Department of State.

295. The current arrangement of State business is no exception. Subject to the recent changes in the makeup of the Government referred to at the beginning of this judgment, we take judicial notice of the fact that at present there are eighteen Departments of State, including the Department of the Taoiseach, distributed between the Taoiseach and the fourteen members of the Government, with some members of the Government holding more than one departmental portfolio. By way of example, the Department of the Taoiseach is led by the Taoiseach and includes Deputy Butler (as Government Chief Whip and Minister of State with responsibility for Mental Health) and Deputy Thomas Byrne (as Minister of State with responsibility for European Affairs and Defence). At the time of the hearing of this application, the Tánaiste led the Department for Defence (where Deputy Thomas Byrne is the Minister of State) and also the Department for Foreign Affairs and Trade (where Deputy Thomas Byrne is also a Minister of State and Deputy Neale Richmond is the Minister of State with responsibility for International Development and Diaspora).

296. As a rule, therefore, the Minister/member of the Government heads, and is in charge of, each Department of State and Ministers of State are appointed with concurrent delegated responsibilities for areas of work under the lead of the Minister/member of the Government. Thus, by way of further illustration, the Department of Finance was led by the Minister for Finance, Deputy Donohoe (and is now led by the Tánaiste, where Deputy Robert Troy is the Minister of State with responsibility for Financial Services, Credit Unions and Insurance); the Department of Public Expenditure, Infrastructure, Public Service Reform and Digitalisation is led by the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation, Deputy Chambers (where Deputy Kevin (Boxer) Moran is the Minister of State with responsibility for the OPW and Deputy Higgins is the Minister of State with responsibility for Public Procurement, Digitalisation and eGovernment); the Department of Education and Youth is led by the Minister for Education and Youth, Deputy McEntee (where Deputy Michael Moynihan is the Minister of State with responsibility for Special Education and Inclusion) and so on. In all cases, the Minister of State exercises concurrently delegated responsibilities but under the supervision and at the will of a Minister/member of the Government, which Government as a collective unit remains accountable to Dáil Éireann.

297. Although rejecting the value of international comparators generally, it was submitted on behalf of Deputy Daly that regard might appropriately be had to jurisprudence emanating from the Supreme Court of India on the basis that India has a codified Constitution and certain provisions of the Constitution of India, including the “Directive Principles of State Policy”, were modelled on Bunreacht na hÉireann (citing Keane, “The Irish Influence on the Indian Constitution: Contrasting the Fortunes of the Directive Principles of State Policy Sixty Years On” in 60 Years of the Indian Constitution: Retrospect and Prospects, eds. K. Narain and M.C. Dias (MacMillan Publishers India, New Delhi, 2011), pp. 199-206).

298. It appears that Articles 74 and 163 of the Constitution of India establish “Councils of Ministers” at both the federal and state levels to aid and advise the President at the Union level and the Governors of states, respectively. Numerical control is applied to both manifestations, pursuant to Articles 75 and 164. This numerical control is expressly applied to the aggregate numbers of both Cabinet Ministers and other types of ministers. The Cabinet is characterised by an “inner body” within the Council of Ministers and Ministers of State are not members of the Cabinet, attending only if invited to a particular meeting. In terms of numerical control and collective responsibility at the state level in India, Article 164 specifies, inter alia:

“(1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve:…

(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule….”

299. It is immediately striking that the numerical controls prescribed are linked in percentage terms to the total number of members of the elected representatives. An equivalent link is not apparent in the 1937 Constitution which does not seek to preserve a direct ratio between the number of members in Government and the number of elected representatives.

300. In Adv. Aires Rodrigues v. The State of Goa (PIL Writ Petition No. 5 of 2007, 22nd January 2009) (“Rodrigues”), the appointment of, inter alia, certain “Parliamentary Secretaries” was challenged at the High Court of Bombay. The relevant Parliamentary Secretaries had been installed and conferred with the status of Cabinet Ministers. This was found to have, inter alia, breached the 15 per cent limit in Article 164(1A) of the Constitution of India. Swatanter Kumar C.J. of the High Court of Bombay stated, inter alia:

“…they have been appointed to a public office with the nomenclature of Parliamentary Secretaries with cabinet rank and they are to perform duties and functions in the respective ministries. They would represent the Government in the Assembly and would, while assisting the Chief Minister, have the authority to pass appropriate orders. They, obviously, participate in the decision making process and take decisions. Thus, equivalence of status and rank is clubbed with the functions, duties, responsibilities and privileges of that post and, therefore, in the spirit and substance they have been appointed as Cabinet Ministers/Ministers…the Parliamentary Secretary is not a regular post created in furtherance of exercise of any statutory power and State of Goa has not framed any law in that behalf…” (at para. 70).

301. Quashing the appointments of certain of the Parliamentary Secretaries in question, the Court identified that the purpose of Article 164(1A) was, inter alia:

“to…limit the size of the cabinet for better governance and to avoid heavy burden on public exchequer” (at para. 30).

302. The Court characterised the provisions of Article 164(1A) as “mandatory” and that the “restriction on the size of the Council of Ministers thus must not be unsettled by any indirect method when it is directly impermissible” (para. 32). The Court branded the numerical constitutional control “the golden figure” (para. 32). Swatanter Kumar C.J. elaborated in the following terms:

“…Their main role, as it appears from the record before us is to participate in Government functioning, may be with some limitations but they are in no way outsiders to the Government functioning, its records and interaction with the public. The distinction between these two is primarily marked with their nomenclature. One is called a regular Minister while other is called ‘Parliamentary Secretary’. Which is and what is the main line of distinction between these two public officers is a question left to anybody’s imagination and in any case, the record reflects nothing. Viewed from the normal conduct of the Government, these appointments are primarily made with the purpose of accommodating an elected member who could not be included in the regular Cabinet for one reason or the other and primarily for the limitation contained in Article 164(1A) of the Constitution…” (at para. 48).

303. The Court went on to say:

“…The purpose in creating posts with a motive for providing similar status in excess of limitation specified in law appears to be an ulterior motive i.e. to settle political interest in the garb of exercise of an executive power apparently not in consonance with law…” (at para. 50).

304. The Court further observed:

“The supremacy of the Constitution cannot be permitted to be compromised by any organ of the State and particularly the Executive is expected to act in line with the Constitutional mandate. An executive action founded on ancillary law or State policy framed cannot in any way be permitted to impinge or cast a shadow upon the Constitutional scheme. Both the purpose and motive of the Executive are of relevant consideration as they essentially must go in line with the command of the Constitution. An objective purpose as a result of colourable exercise of power would vitiate the executive action…” (at para. 51).

305. It was submitted on behalf of Deputy Daly that there are clear parallels between this Indian case and the present proceedings. The asserted parallels are, however, rather strained and somewhat superficial, in our view. It appears from reading the judgment in Rodrigues that the numeric restrictions contained in the Constitution of India were not provided by the framers of the Constitution of India in enacting it but were introduced by Parliament in circumstances where that Constitution permits of amendment by Parliament, unlike the 1937 Constitution. Further, the Legislature in Ireland, for its part, also exercises numeric control over the position of Minister of State and provides for remuneration in respect of additional duties when a Minister of State attends regularly at meetings of Government for only four Ministers of State. There is no breach alleged of any statutory provision limiting the numbers of Minister of State in these proceedings.

306. No real attempt has been made by Deputy Daly to address the significance of the identified lack of a clear basis and/or authority for the appointments in question in Rodrigues compared to the elaborate statutory framework developed under the 1924, 1977, 1997, 1998 and 2025 Acts identified above which operate in this jurisdiction. These provisions were not compared or contrasted with the position in India. No legislative basis whatsoever for the appointment of Ministers or Parliamentary Secretaries at federal level (in distinction to some statutory provision at State level, although not in the State of Goa) is referred to in the judgment in Rodrigues. To this extent, therefore, it appears to us that the legal position cannot be considered comparable.

307. Nor does the submission in reliance on Rodrigues take proper account of the different factual and legal position in this jurisdiction and the fact that it has not been established on the evidence or in law that Ministers of State attending at Government meetings “operate in all but name as members of the Government”, a finding which was key to the decision of the Bombay High Court in the case in Rodrigues. The fundamental premise of the decision in Rodrigus, as we read it, was that the individuals in question had been appointed as “Parliamentary Secretaries with Cabinet rank/status” or “different posts in the Government administration with rank/status of Cabinet Minister conferred upon them”.

308. By way of contrast with the key finding which underpinned the judgment in Rodrigues, clear factual and legal differences exist between the status and role of the Minister of Government and the Minister of State in this jurisdiction. As established in evidence before us, set out at paras. 184-187 above, Government Ministers and Ministers of State differ significantly in their roles, powers, and legal foundations. Furthermore, it bears repetition that, unlike the position under consideration in Rodrigues, provision has been made in law for the creation of the role of Minister of State and the differences between the two roles are such that we cannot conclude that the Minister of State enjoys equivalent rank and status to a Government minister. In addition, while the appointment is made by Government in exercise of a statutory power, ministerial powers are delegated through legislation. Accordingly, we are not persuaded that the decision in Rodrigues supports the contention on behalf of Deputy Daly that the regular attendance by Ministers of State at Government meetings offends, inter alia, the constitutional limitation on membership of the Government pursuant to Article 28.1 of the Constitution as has been contended for.

309. In view of the attention paid to protection against heavy burdens being placed on the Exchequer as a constitutional objective in Rodrigues, we have reflected on whether a similar objective may be implied into the numerical limitation in Article 28.1. The 1937 Constitution safeguards against abuse of the Exchequer funds by making the Government accountable to Dáil Éireann. The requirement for a legislative basis for additional financial burdens on the Exchequer associated with the appointment of Ministers of State to attend regularly at Government meetings evidences the systems of checks and balances established under the Constitution in operation.

310. It is true that in McKenna (No. 2), Hamilton C.J. stated that as the guardians of the Constitution the People were, by virtue of the democratic nature of the State enshrined in the Constitution and taking a direct role in government through the Constitutional amendment process, entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, created by the enactment of the Constitution. He concluded that the use of public funds by the Government to fund a campaign designed to influence the voters was an interference with the democratic process and the constitutional process, infringing the concept of equality which is fundamental to the democratic nature of the State. In his separate judgment O’Flaherty J. wondered whether permitting public funding of referenda might not lead to a temptation for Government to stray in other directions with “further inducements aside from verbal inducements, which are the essence of any voting campaign” (p. 45).

311. For his part, Blayney J. found that the expenditure of public funds on one side of the referendum constitutes an interference with the guarantee of fair procedures because by spending money on one side the Government had not “held the scales equally between those who support and those who oppose the amendment” (at page 50). He concluded that the Government was constitutionally bound to act fairly in discharging its executive functions without:

“favouring any section of the People at the expense of any other section. This would seem to be a minimum requirement for the discharge of any constitutional obligation. The people are entitled to be treated equally”.

312. It seems to us that the approach of the Court in McKenna (No. 2) to the use of public funds contrary to a constitutional mandate identifies bright line distinctions between the practice found to be unlawful in McKenna (No. 2) and the practice which it is sought to be condemned as unconstitutional in this case. While Super Junior Ministers enjoy the political influence which participation at Government meetings confers and as members of Dáil Éireann also command influence by the power to lend or withdraw support for Government policy, this political influence does not detract from the fact that the Government itself remains accountable to Dáil Éireann.

313. Nonetheless, the existence of a direct link between the numerical restrictions present in the Constitution of India and the fact that in India, as in this jurisdiction, the legislative assembly holds the Council of Ministers or Government collectively responsible and both Constitutions require that the Government must retain a majority in the House of the People/Dáil Éireann to remain in power, gives some pause for further consideration as to the purpose of the numeric restriction. It has been observed that the purpose of a numeric restriction is to seek to ensure a manageable size of the Government (see, in the Irish context, the Report of the Constitution Review Group (May 1996, pages 91 and 92) dealing with the Government), although in the case of the Constitution of India it has been found to also relate to a control on public spending.

314. While it may well be, as observed by Doyle in The Constitution of Ireland: A Contextual Analysis (Hart, Oxford, 2018), at pages 53-54, that the practice of appointing Ministers of State is politically convenient and therefore persists because “more ministers means fewer disgruntled backbenchers…”, we are of the view that the participation of more ministers at Government meetings in no way diminishes the responsibility of Government to Dáil Éireann or Dáil Éireann’s duty to hold Government to account.

315. In interpreting the provisions of Article 28 of the Constitution holistically and harmoniously, for example, Professor Casey has referred to the codified constitutional convention of collective responsibility as the “principle that the Government holds office only so long as it retains the support of a Dáil majority” (Casey, 2000, page 162). Professor Gwynn Morgan makes a similar observation stating that “…it should be stressed that the Government’s responsibility is to the Dáil and not to the Senate. The Government’s responsibility embraces not only the Dáil’s capacity to remove and replace a Government but also its power to appoint a Government following a general election…” and later that “…the Constitution states that ‘The Government shall be responsible to Dáil Éireann (Article 28.4.1°). The teeth behind this provision are contained in another section: ‘The Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann…’ (Article 28.10)…” (Constitutional Law of Ireland: The Law of the Executive, Legislature and Judicature (Second Ed. 1990, The Round Hall Press), at pages 68-69).

316. The relevant Ministers of State receive additional allowances in respect of their regular attendance at Government meetings, and legislative approval of payments to such members must be seen as a form of legislative sanction for the practice. Accordingly, the practice which is sought to be impugned in these proceedings, namely Ministers of State being invited by the Taoiseach to attend regularly at Government proceedings, is undoubtedly one which is approved of by the members of Dáil Éireann to the extent that provision has been made for payment of allowances in respect of such attendance.

317. Furthermore, the fact that a legislative amendment is required each time it is proposed to expand the number of Ministers of State to whom allowances are paid in respect of regular attendance at meetings of the Government ensures that the Government is not at large and unaccountable to Dáil Éireann in respect of any additional expenditure of public monies thereby incurred. In this way, therefore, there is no abrogation of or interference with the fundamental responsibility cast upon members of the Dáil Éireann to hold the Government to account on behalf of the electorate through their participation in meetings of Government. Instead, insofar as Ministers of State who are not members of the Government support Government policy as members of Dáil Éireann (and it bears note that history gives us examples of constitutionally appointed Government members not supporting their own Government’s policies), they do so in discharge of an electoral mandate in a manner which aligns with the democratically mandated constituency structures prescribed under the Constitution.

318. Ultimately, such payments as are made to Ministers of State are authorised by law in respect of additional duties, commensurate with work done by them. Accordingly, payments are made with the sanction of Dáil Éireann and remain under the control of Dáil Éireann. The Dáil as a whole and the individual Minister of State are accountable to the electorate for any failure to fulfil an electoral mandate. We do not see any unconstitutional unfairness to the People in consequence. It is the exercise of the ballot which ultimately determines where the balance of power lies in Dáil Éireann and indirectly, therefore, it is the People who control the Government both as to its formation and its disbandment. The consequence for an elected representative who does not discharge his or her electoral mandate is a political one.

319. That the Constitution does not expressly regulate attendance at Government meetings is understandable having regard to the fact that it provides generally that the Government is accountable to Dáil Éireann (Article 28.4). The constitutional silence in this regard can also be compared with other aspects of public affairs where there is a lack of constitutional prescription.

320. Just as in Collins v. Ireland [2013] 4 I.R. 522 (“Collins”) where the interposition of the Dáil and the Oireachtas through Articles 11, 17 and 28 of the Constitution, designed to guard against not only the possible excesses of spending by the Government, but also to supply democratic legitimacy to the entire process of spending and appropriation, was considered, the requirement to pass legislation providing for the creation of new positions attracting additional expenditure of public monies means that actions of the Government are subject to restraint by virtue of Article 17.2 of the Constitution.

321. The particular issue in Collins was whether the Oireachtas acted unconstitutionally in passing the Credit Institutions (Financial Support) Act 2008 in the context of the (then) financial crisis by giving powers to the Minister for Finance to commit public monies without a financial cap being placed on the amount.

322. While both Houses of the Oireachtas are vested with law-making powers, Dáil Éireann is given a primacy over Seanad Éireann in relation to financial matters – exemplified in the following provisions outlined by the Supreme Court in Collins (at paragraph 55) - the constitutional provisions in relation to money bills (Articles 21, 22 and 24), the provisions requiring Dáil approval of international agreements involving a charge on the public funds (Article 29.5.2°), the requirement that the Minister for Finance is member of the Dáil (Article 28.7), the nomination of the Comptroller and Auditor General by the Dáil (Article 33.2) and the obligation of the Comptroller and Auditor General to report to the Dáil (Article 33.4).

323. The Constitution’s main control point on financial matters was summarised by the Supreme Court in Collins as “the appropriation and therefore expenditure of all monies is required by Article 11 to be provided for ‘by law’, and to be recommended to Dáil Éireann by a message of the Government signed by the then Taoiseach (Article 17.2)”. The Supreme Court observed that the procedure referred to in Article 17 for annual estimates did not purport to provide a comprehensive or exclusive procedure and dealt only with the receipts and expenditure for any financial year (continuing the practice of distinguishing between voted and non-voted expenditure). The corresponding provisions in the estimates process for the Dáil in Article 17.1.1° were noted, namely, “As soon as possible after the presentation to Dáil Éireann under Article 28 of this Constitution of the Estimates of receipts and the Estimates of expenditure of the State for any financial year, Dáil Éireann shall consider such Estimates” and for the Executive in Article 28.4.4° “The Government shall prepare Estimates of the Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann for consideration”, underlining that ultimate fiscal responsibility lies with the Dáil and it is the function of the Dáil to hold the Government to account.

324. Thus, in Collins, the Supreme Court stated as follows at pages 550 and 562:

“[95] … Budgetary allocation and the raising of taxation are, therefore, not only integral features of the operation of the democratic nature of the State prescribed by Article 5, but represent key features of the representative duty of each Dáil Deputy. It is by these decisions that the Dáil (and the wider Oireachtas) shape the very society in which we live. It is for this reason that the individual members of the Dáil are directly answerable to the People in the electoral process provided for in Article 16.

[96] Budgetary allocation, is, therefore, a fundamental responsibility which Articles 5, 11, 17 and 28 of the Constitution cast upon the Dáil and its individual members. This constitutional responsibility may under no circumstances be abrogated, whether by statute, parliamentary practice or otherwise. It must be stressed in this regard that Article 28.4.1 requires that the Government ‘shall be responsible to Dáil Éireann.’ … [128] We repeat, therefore, that the objects and effects of the appropriate requirements in Articles 11 and 17 when coupled with the principles and policies test in Article

15.2.1 is to preserve the budgetary autonomy of Dáil Eireann; to safeguard the proper operation of the budget process as required by the Constitution and to ensure that the discretion thereby vested by law in the Government and individual Ministers to spend public moneys can be controlled and measured by reference to identifiable standards prescribed by law.”

325. In addition to emphasising the paramountcy of the Dáil over the Seanad in financial matters - which reflected the history and development of the Westminster system observing that “the framers of the 1922 and 1937 Constitutions did not merely retain the broad division of functions between Executive and Parliament, but also retained the primacy within the legislative branch of the popularly elected House” - the Supreme Court in Collins also observed that the Constitution did not purport to “regulate with precision” the financial affairs of the State. Rather, the Constitution controlled certain important features of that process, and by that direct control of specific matters exercised a degree of indirect control of other aspects.

326. On a similar process of reasoning to that of the Supreme Court in Collins, we are satisfied that there has been no erosion or undermining of the constitutional prescription that the Government is accountable to the Dáil by reason of the attendance at and participation in Government meetings of a Minister for State. The accountability to the Dáil is unaffected by the participation of more than 15 members of the Dáil in the Government meeting. The responsibility of the members of the Dáil as representatives of the People is similarly unaffected. In this context it is of some importance that the Oireachtas has acknowledged the role of the relevant Ministers of State and provision has been made by statute, for paying an additional allowance to the relevant Ministers for State for the extra work they do arising in respect of their attending regularly at Government meetings. This importance derives from the fact that it evidences the agreement of Dáil Éireann, from a fiscal perspective, with the financial cost of an enhanced role for Super Junior Ministers attending regularly at Government meetings.

327. In our view, Deputy Daly wrongly conflates attending at and participating in, Government meetings, on the one hand, with being a Minister/member of the Government, on the other hand. The significance which he places on the phrase “the Government shall meet and act as a collective authority…” to contend that a Government meeting at which the relevant Ministers of State attend and participate, breaches Article 28.4.2° because on his interpretation the Constitution envisages a meeting of “the presidentially-appointed” 15 Ministers (including the Taoiseach) only if acting as a collective authority is, in our view, mistaken.

328. We do not consider it to have been established that the regular attendance and participation of the relevant Ministers of State operates to prevent the Government meeting and acting as a collective authority and with collective responsibility in disregard, still less in clear disregard, of Article 28 of the Constitution. The Government continues to have, as the Government, a responsibility to Dáil Éireann. The attendance of others at the meeting does not detract from the requirement act as a collective authority and remain collectively responsible as a group of

15 to Dáil Éireann.

329. Although the participation of Ministers of State in Government meetings creates the political reality that they are likely to exercise their vote in Dáil Éireann in support of Government policy, this political reality does not interfere with or undermine the accountability of the Government to Dáil Éireann and indirectly through Dáil Éireann, the ultimate accountability to the People.

330. Where cabinet confidentiality applies to the meeting, then the necessity for full, free and frank discussions between members of the Government prior to the making of decisions is not impacted by the presence, with the agreement of the members of Government, of nominated Ministers for State for that discussion. It is to that issue which we now turn.

(G) Cabinet Confidentiality

331. The doctrine of “cabinet confidentiality” was initially an uncodified convention of Irish constitutional law rather than a text-based constitutional rule (Doyle & Hickey, 2019, p.113; Kelly, 2018, pp. 537-545). In Hamilton (No. 1), a majority of the Supreme Court was of the view that confidentiality of discussions of the Government was a necessary corollary of the collective responsibility provisions of Article 28.4 of the Constitution, going so far as to state that it implied absolute or complete confidentiality of discussions at Government meetings. This was considered ultimately by the People to be too restrictive leading to the amendment in the Seventeenth Amendment of the Constitution Act and what is now Article 28.4.3° of the Constitution, which permits an exception where the High Court determines that disclosure should be made in respect of a particular matter – (i) in the interests of the administration of justice by a Court, or (ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.

332. Notwithstanding the exception carved out by Seventeenth Amendment of the Constitution Act, the judgment in Hamilton (No. 1) continues to guide the proper approach to the constitutional protection of cabinet confidentiality. In his judgment, O’Flaherty J. observed that the drafters of both the 1922 and 1937 Constitutions would have agreed with the following submission made in that case by the Attorney General that:

“…the form of cabinet government that was embodied in the Constitution of the Irish Free State as well as in the Constitution of 1937 meant one that regarded itself as bound to act as a collective unit; to be collectively responsible for its actions and that meant that it could only speak with one voice. That in turn meant that its deliberations must be confidential…” (at p. 300).

333. This dictum continues to guide the application of the doctrine of cabinet confidentiality under the Constitution and provides a clear statement of the reason confidentiality is respected. The case made on behalf of Deputy Daly is that reference to confidentiality of discussions at meetings of the Government in Article 28.4.3° must be construed as referring to discussions at validly constituted meetings of the Government. The reference to “meetings” in Article 28.4.3° is, therefore, on Deputy Daly’s case, only to constitutionally sanctified meetings within the meaning of Article 28.4.2°, of the Government as that body is defined in Article 28.1, namely a meeting of the 15 members of Government.

334. It seems to us that this interpretation of the requirements of cabinet confidentiality is not supported by the language of the Constitution. It fails to have due regard to the purpose of cabinet confidentiality as addressed by the Supreme Court in Hamilton (No. 1). The concept of cabinet confidentiality expanded upon by the Supreme Court in Hamilton (No. 1) was one which protected against compulsory disclosure of the contents of discussions which take place at Government meetings (see Hederman J., at page 275). As identified in the decision of the Supreme Court in that case, the purpose of cabinet confidentiality is to prevent the Government’s role from being undermined or destabilised and to support the separation of powers under the Constitution. No such risk arises out of persons of the Government’s (or Taoiseach’s) own choosing being permitted to attend at, and participate in, Government meetings, provided, of course, that they respect cabinet confidentiality.

335. The Supreme Court in Hamilton (No. 1) also recognised (see Finlay C.J. at page 267) the need to construe the Constitution in its entirety in the manner most likely to make it an “effective instrument for the ordering of society and the governing of the Nation”. It would hardly be “effective” from the standpoint of “the governing of the Nation” if a corollary of the principle of cabinet confidentiality was that discussions must necessarily be limited to the 15 members of Government alone. This would prevent the members of the Government from even having secretarial assistance present to assist them and to record their decisions. Cleary such an outcome would be illogical and absurd and is not a case pressed on behalf of Deputy Daly but is one which, it appears to us, follows from the logic of the argument made on his behalf in relation to “the rule of 15” as urged. The logical conclusion on the Applicant’s argument is that discussions at Government meetings must necessarily be held only in the presence of the 15 members of Government to the exclusion of everyone else. An argument which leads to such a

conclusion is neither anchored in common sense nor duly cognizant of the practical realities of the administration of Government.

336. To borrow from the words of Finlay C.J. in Hamilton (No. 1) (at page 272) the requirement of cabinet confidentiality is one which should not create a “practical impossibility of carrying on the fundamental functions of Government in its absence”. As submitted on behalf of the Respondents, there is no “impossibility” in carrying out functions by virtue of the attendance of the relevant Ministers of State at Government meetings. There is, however, an impossibility in a narrow construction of cabinet confidentiality as applying in respect of the discussions of 15 only as it is not a tenable proposition that Government is expected under the Constitution to conduct itself in deep secret without administrative assistance, expert advice or the maintenance of records.

337. It is noteworthy that in his judgment in Hamilton (No. 1), O’Flaherty J. expressly referenced the attendance of non-members of the Government at meetings (at page 299) when referring to the possibility that the Attorney General, the Chief Whip and the Secretary to the Government being asked to give their versions of events – which, as urged on behalf of the Respondents, can only mean that he considered that there was no conflict between confidentiality and their attendance.

338. The requirement for confidentiality is not confined to the 15 members of Government but instead provides a broader protection extending to a requirement that the confidentiality of discussions at meetings of the Government shall be respected “in all circumstances”. It follows from the language used that the concept applies to the discussions at the meetings of the Government and this confidentiality must be respected by all persons privy to the details of those discussions, whether that be in their capacity as civil servant, note taker, Secretary to the Government, Attorney General, Chief Whip, specialist advisor or any other person in attendance for those discussions, including Ministers for State who have been invited to attend and participate in the meeting (whether on a regular basis or not). Were it otherwise, respect for confidentiality of Government discussions would make the business of government unworkable. Afterall, at its most basic, such business inevitably requires that records be both generated and kept.

339. The reality that Government meetings have long been supported by a secretariat cannot be ignored for the convenience of Deputy Daly’s legal argument. It is all but conceded that the attendance at Government meetings of the Chief Whip, the Secretary General to the Government, and the Attorney General is necessary for the conduct of Government business, is longstanding and constitutionally permissible. This being the case, it has not been satisfactorily explained how this acknowledgement of their lawful participation fits with the underpinning hypothesis of this case, namely, that only the fifteen members of Government may attend Government meetings or that attendance of the relevant Ministers of State breaks cabinet confidentiality.

340. We agree with the Respondents’ submission that the obligation to respect cabinet confidentiality is framed in general terms and is an obligation “of general application and not one restricted to members of the Government alone”. Cabinet confidentiality does not constrain the Government from holding its deliberations in front of third parties who are invited to contribute but those third parties are equally bound by obligations of confidentiality flowing from Article 28.4.3°. In terms of legal provisions and rules of practice/guidance the 1977 Act and the Cabinet Handbook reflect and are consistent with this broader interpretation of the respect for the confidentiality of discussions at Government meetings provided for in Article

28 of the Constitution.

341. There is, in our view, no constitutional provision as to confidentiality of discussions in Government meetings infringed, either expressly or impliedly. There is, therefore, no express or implied disregard, still less clear disregard, of a requirement of cabinet confidentiality by the regular attendance and participation at meetings of the Government by the relevant Ministers of State. There is no constitutional provision, express or implied, which limits the attendance of meetings of the Government to what Counsel for the Applicant described as “the 15 presidentially-appointed Ministers” (including the Taoiseach) and the constitutional requirement to respect the confidentiality of Cabinet discussions applies regardless of whether one is privy to information as a full member of Government or otherwise.

342. Nothing in the twin constitutional concepts of collective responsibility or cabinet confidentially precludes the regular attendance of the relevant Ministers of State at meetings of the Cabinet upon the invitation of the Taoiseach as the constitutionally prescribed head of Government and Prime Minister. We do not consider that these or any other constitutional restraints are breached by inviting the relevant Ministers of State to attend regularly and participate at meetings of the Government. In particular, we do not consider that the attendance and participation of the relevant Ministers of State at meetings of the Government infringes any subsequent consensus

decision “of the 15” members of the Government.

11. SUMMARY OF CONCLUSIONS

343. In this challenge brought by way of judicial review, Deputy Daly relied on the material set out in his Statement of Grounds dated 28th January 2025 and on the evidence contained in his verifying affidavit sworn on the same date. He also relied on an expert report (verified on affidavit) from Professor Muiris MacCarthaigh (Professor of Politics and Public Policy at Queen’s University Belfast) and on the evidence contained in an affidavit sworn by John Halligan (a retired politician and a former Minister of State, albeit not a Super Junior Minister) on 14th April 2025. Deputy Daly also swore a replying affidavit in response to an affidavit sworn by John Callinan on behalf of the Respondents.

344. The Respondents relied on the matters set out in a Statement of Opposition dated 18th March 2025 and on the evidence contained in Mr. Callinan’s affidavit which was sworn on the same date. They also relied on the expert reports (all verified on affidavit) of Professor Eunan O’Halpin (Emeritus Professor of Contemporary Irish History at Trinity College Dublin), Dr. Eoin O’Malley (Associate Professor in Political Science at Dublin City University) and Professor Andrew Blick (Professor of Politics and Contemporary History at King’s College London).

345. There was no relevant or significant factual dispute between the parties and none of the above witnesses were required to be cross-examined on their affidavits.

346. In summary, Deputy Daly contends that the attendance and participation by Super Junior Ministers at meetings of the Cabinet has been contrived to circumvent the “rule of 15” prescribed under Article 28 of the Constitution and is, therefore, unconstitutional.

347. We have determined that this challenge is justiciable. In considering Deputy Daly’s challenge, we observe that individual constitutional provisions cannot be interpreted in isolation without regard to the Constitution as a whole and, therefore, in applying a harmonious and holistic interpretation, we have had particular regard not just to Article 28 but to several other provisions of the Constitution in seeking to ascertain, by reference to the clear disregard standard, whether any express or implied constitutional mandate applies in relation to the presence of and participation in Cabinet meetings by Super Junior Ministers.

348. It is plainly constitutionally impermissible for the President to appoint more than fifteen persons as members of Government. The Constitution prescribes that members of Government must be drawn from Dáil Éireann or Seanad Éireann, but not more than two may be members of the Seanad. This means that the Government must be comprised only of members of the Oireachtas (the Legislative arm) composed predominantly of members of Dáil Éireann.

349. It is not in dispute in these proceedings that only persons appointed by the President having obtained Dáil approval are members of the Government from a constitutional standpoint. It has been established on the evidence that the President did not appoint more than 15 members of Government for the current Government (the 35th Government). While the four persons nominated to be Super Junior Ministers on 23rd January 2025 travelled, as deputies, with the nominated members of Government to Áras an Uachtaráin, they were not appointed by the President and did not receive seals of office. Rather, they were appointed by the Government at the nomination of the Taoiseach at the meeting of the Government held that evening in Áras an Uachtaráin.

350. A fundamental difference between a Minister/member of the Government and a Super Junior Minister stems from the fact that becoming a Minister/member of the Government requires appointment in accordance with Article 13.1.2º of the Constitution by the President on the nomination of the Taoiseach and with the previous approval of the Dáil. The Super Junior Minister, on the other hand, stands appointed by a Government decision, at the nomination of the Taoiseach, pursuant to s. 1 of the 1977 Act (as amended) and without the requirement for Dáil approval. The Super Junior Minister may be concurrently delegated duties in respect of a Department of State but responsibility for each Government Department always remains with the Minister/member of the Government.

351. As only 15 members of the Government were appointed by the President pursuant to Article 13 of the Constitution and in accordance with Article 28.1, it cannot be gainsaid that the four Deputies nominated by the Taoiseach in January 2025 to be Super Junior Ministers are not Ministers/members of the Government and there has been no breach of the numerical restriction imposed by Article 28 of the Constitution.

352. Since the first meeting of the 35th Government that took place in Áras an Uachtaráin on 23rd January 2025, it has been established in evidence that four Ministers of State have attended regularly and participated in Government meetings as Super Junior Ministers. In consequence, the essential question for us in these proceedings was whether the participation of non- Government ministers in meetings of the Government, including by participating in discussions at the meeting which leads to a consensus decision of the 15 members of the Government, is contrary to the Constitution, having regard to an implied constitutional prohibition on the participation of more than 15 members in Government meetings and the requirements of collective responsibility and cabinet confidentiality.

353. We are satisfied that there is no constitutional provision, express or implied, which limits the attendance at meetings of the Government to the 15 Ministers who were appointed by the President (including the Taoiseach). There is, in our view, for the reasons more fully set out in this judgment, no constitutional provision, express or implied, infringed, and, therefore, no disregard, still less a clear disregard, of any constitutional provision by the regular attendance and participation at meetings of the Government by the relevant Ministers of State/Super Junior Ministers.

354. Insofar as Deputy Daly’s challenge is concerned, we do not consider that the attendance and participation of the relevant Ministers of State at meetings of the Government renders constitutionally infirm or invalidates any decision taken at the meeting consensually by the 15 members of the Government. Nor does it undermine or breach (a) the constitutional prescription that Dáil Éireann is the body which holds the Government to account or (b) the constitutional requirements in relation to the confidentiality of discussions at meetings of the Government.

355. As no disregard – and certainly no clear disregard – of the constitutional parameters to the exercise of Government power or breach of the constitutional provisions concerning the Government has been established, we are satisfied that Deputy Daly’s claim must fail and he is not entitled to the declaratory relief which he seeks in these proceedings.

356. As the challenge to the constitutionality of s. 3A of the 1998 Act (as amended by the 2025 Act) is contingent on the case made that it is not constitutionally permissible for the relevant Ministers of State (that is, the Super Junior Ministers) to regularly attend meetings of the Government (and to participate in those meetings), this challenge must inevitably also fail.

357. Accordingly, we dismiss Deputy Daly’s claims by way of judicial review in these proceedings and refuse the reliefs sought by him.

358. We will list the case on a date in the first week of the Hilary term in January 2026 to hear counsel and to make any consequential orders.

APPEARANCES

Feichín McDonagh SC, Eileen Barrington SC, John Biggins BL and Brendan Hennessy BL for the Plaintiff instructed by Rogers Law Solicitors Rossa Fanning SC (Attorney General), Catherine Donnelly SC, David Fennelly SC, Francis Kiernan BL and Emma Synott BL instructed by the Chief State Solicitors Office