High Court dismisses claim that inviting Super Junior Ministers to Cabinet meetings breaches constitutional collective responsibility.

APPROVED

THE HIGH COURT

AN ARD-CHÚIRT

Barniville P. Phelan J. Bradley J.

[2025] IEHC 730

Record No. 2025 512 P

BETWEEN/

PAUL MURPHY

PLAINTIFF

-AND-

AN TAOISEACH, GOVERNMENT OF IRELAND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

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

CONTENTS

1. INTRODUCTION ................................................................................................................ 5

2. SUMMARY OF DEPUTY MURPHY’S CLAIMS AND THE DEFENDANTS’

RESPONSE .............................................................................................................................. 6 (A) Preliminary: summary of Deputy Murphy’s claims ................................................ 6 (B) Summary of the Defendants’ Response ................................................................. 12

3. SEPARATE JUDGMENT ................................................................................................ 14

4. THE PROCEEDINGS ....................................................................................................... 14

5. THE EVIDENCE ............................................................................................................... 15 (A) Evidence of Paul Murphy....................................................................................... 16 (B) Evidence of Shane Ross ......................................................................................... 22

(i) 2016 ................................................................................................................. 25

(ii) 2017 ................................................................................................................ 28

(iii) 2025 ............................................................................................................... 31

(iii) Concurrent Delegation from Members of the Government to Ministers of State ...................................................................................................................... 33

(iv) Cabinet Handbook ......................................................................................... 33

(v) Seniority .......................................................................................................... 34

(vi) Government meetings: record of attendance ................................................. 34

(vii) Incorporeal meeting...................................................................................... 39

(viii) Decisions at meetings of the Government are based on Memoranda ......... 40 (C) Evidence of Finian McGrath ................................................................................. 45

(i) Ruling on Finian McGrath’s evidence ............................................................ 45

(ii) Government formation negotiations ............................................................... 47

(iii) Appointment as Minister of State .................................................................. 47

(iv) UN Convention on the Rights of Persons with a Disability ........................... 48

(v) Difference between supporting and being part of Government ...................... 48

(vi) Attendance at meetings of the Government ................................................... 48

(vii) Consensus of the 15 members of the Government ........................................ 50

(viii) Incorporeal meeting .................................................................................... 50

(ix) Inscription on copy of the Constitution.......................................................... 51

(x) Response to Mr. Callinan’s witness statement ............................................... 51

(xi) Memorandum to Government - Example 1 .................................................... 52

(xii) Memorandum to Government - Example 2 ................................................... 52

(xiii) Memorandum to Government - Example 3 .................................................. 53

(xiv) Memorandum to Government - Example 4 .................................................. 53

(xv) Political influence vs legal influence ............................................................ 54 (D) Evidence of Professor Diarmaid Ferriter .............................................................. 55 (E) Evidence of John Callinan ..................................................................................... 61

(i) Memorandum/Memoranda .............................................................................. 64

(ii) eCabinet .......................................................................................................... 66

(iii) Meetings of the Government.......................................................................... 67

(iv) Attendance record at meetings of the Government ........................................ 72

(v) Seating arrangement at a meeting of the Government ................................... 72

(vi) Consensual approach .................................................................................... 73

(vii) Cabinet Committees ...................................................................................... 74

(viii) Documents ................................................................................................... 76 (F) Evidence of Professor Eunan O’Halpin ................................................................ 79 (G) Evidence of Professor Eoin O’Malley ................................................................... 83 (H) Evidence of Professor Andrew Blick ..................................................................... 85

6. THE LEGAL FRAMEWORK ......................................................................................... 88 (A) General .................................................................................................................... 88 (B) Constitutional Framework ..................................................................................... 88 (C) Statutory Framework .............................................................................................. 93

7. FINDINGS OF FACT ........................................................................................................ 95 (A) General .................................................................................................................... 95 (B) Government Formation .......................................................................................... 96 (C) Speech in the Dáil ................................................................................................... 97 (D) Dáil Approval and Appointment at Áras an Uachtaráin ...................................... 99 (E) Attendance at and Participation in Government Meetings ................................. 104 (F) Cabinet Committees .............................................................................................. 113 (G) Consensus Integral to Government Decision-Making........................................ 114 (H) Budgetary Process ................................................................................................ 116 (I) Representative of the Government ........................................................................ 118 (J) Differences between Ministers of Government and Ministers of State............... 118

8. ANALYSIS AND DECISION ......................................................................................... 124 (A) General Observations ........................................................................................... 124 (B) Justiciability and Clear Disregard ....................................................................... 125 (C) The Approach to Interpretation ........................................................................... 129 (D) O’Donovan and equality of participation in elections (and referenda) ............. 130 (E) No Infringement of Article 28 .............................................................................. 136 (F) Accountability to Dáil Éireann and Collective Responsibility ............................ 142

(i) The political accountability of the Government ............................................ 142

(ii) Collective: speaking with one voice and the principle of unanimity ............ 146

(iii) Collective responsibility at a functional level ............................................. 150 (G) Cabinet Confidentiality ........................................................................................ 153 (H) Challenge to s. 3A of 1998 Act............................................................................. 156

9. SUMMARY OF CONCLUSIONS ................................................................................. 156 APPEARANCES .................................................................................................................. 161

1. INTRODUCTION

1. This is the judgment of the Court (Barniville P., Siobhán Phelan J. and Bradley J.) in these plenary proceedings which have been brought by Deputy Paul Murphy, a member of Dáil Éireann for the Dublin South-West constituency. In his proceedings, Deputy Murphy contends that the practice of allowing certain Ministers of State, known colloquially as “Super Junior Ministers”, to regularly attend and participate in meetings of the Government breaches a number of fundamental provisions of the Constitution, specifically, Articles 5, 6, 13.2, 28.1, 28.4.1º, 28.4.2º, and 28.4.3º (28.4.4º, while not pleaded, was referred to in oral argument).

2. That practice is also the subject of a separate challenge in judicial review proceedings which have been brought by another member of Dáil Éireann, Deputy Patrick Daly, on somewhat similar (but not identical) grounds. The evidence adduced by Deputy Murphy in support of his claims in these proceedings is different to the evidence relied on by Deputy Daly in support of his claims and the legal issues raised are somewhat different to those raised in Deputy Daly’s proceedings and, consequently, so too is the focus of the legal submissions which have been made by the parties.

3. Deputy Daly’s proceedings and these proceedings 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 during that week. The judgment of the Court in Deputy Daly’s case is also being delivered today (and bears the neutral citation [2025] IEHC 729). For convenience, the proceedings brought by Deputy Daly will be referred to in this judgment as the “Daly proceedings”.

4. Although we reach the same ultimate conclusions in the two cases, 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.

5. For the reasons set out in detail in this judgment summarised at paragraphs 446-460 below, we are satisfied that Deputy Murphy’s claims in these proceedings must fail and that his action must be dismissed in its entirety.

2. SUMMARY OF DEPUTY MURPHY’S CLAIMS AND THE DEFENDANTS’

RESPONSE

(A) Preliminary: summary of Deputy Murphy’s claims

6. In these proceedings, Deputy Murphy contends that the regular (or ongoing) attendance and participation by a number of Ministers of State at meetings of the current Government is not in compliance with the Constitution.

7. While Deputy Daly, in his similar challenge brought by way of judicial review, focused solely on the composition of the current 35th Government, Deputy Murphy’s challenge objects not only to the composition of the current 35th Government in 2025 but supports his objection by reference to the composition and functioning of the 30th and 31st Governments, respectively in 2016 and 2017.

8. The references to meetings of the Government in this judgment are synonymous with the terms “meetings of the Cabinet” or simply “the Cabinet”, and such other cognate phrases, which were referred to interchangeably by the witnesses and the legal teams for both parties during the hearing before us. Also, the references to “Super Juniors”, or “Super Junior Ministers” or “relevant Ministers of State” are synonymous with Ministers of State regularly and/or continuously attending and participating in meetings of the Government or attending Cabinet meetings on an ongoing basis in 2016, 2017 and 2025. Accordingly, in this judgment, we use the terms “Super Junior Ministers” and “relevant Ministers of State” interchangeably.

9. In these proceedings, Deputy Murphy questions the level of participation of Super Junior Ministers and in so doing he relies, principally, on the evidence of former Dáil deputy and Minister of State, Finian McGrath, who attended meetings of the Government for four years from 2016 to 2020, and also former Dáil deputy and member/Minister of Government, Shane Ross, who was in the same Government for four years. Deputy Murphy also relies on the expert evidence of Professor Diarmaid Ferriter (Professor of Modern Irish History at University College Dublin).

10. In summary, both former deputies contend that the relevant Ministers of State were effectively treated in the same way as the 14 members/Ministers of the Government, who were appointed by the President on the nomination of the Taoiseach and whose appointments were approved by Dáil Éireann, and that this offends the Constitution.

11. The claim advanced by Deputy Murphy (at paragraphs 9 to 12 of his Statement of Claim) is that such Ministers of State are treated in all respects as though they were members of the Government. He identifies the Ministers of State at paragraph (14) of his Statement of Claim as Deputy Hildegarde Naughton (Minister of State attending Cabinet with responsibility for Disability), Deputy Noel Grealish (Minister of State attending Cabinet with responsibility for Food Promotion, New Markets, Research and Development) and Deputy Seán Canney (Minister of State attending Cabinet with responsibility for International and Rural Transport, Logistics, Rail and Ports).

12. After the hearing of Deputy Murphy’s action (and the related Daly proceedings) and before delivery of this judgment, on Wednesday 19th November 2025 the Taoiseach announced a number of ministerial changes for the information of the Dáil.

13. Dáil Éireann approved his nomination of Deputy Hildegarde Naughton to be a member of the Government and the President appointed her on 18th November 2025. The Taoiseach assigned Minister Naughton responsibility for the Department of Education and Youth. Also 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. Further, 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 regularly attending 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. Having noted those changes, this judgment proceeds on the basis of the situation which existed at the time of the hearing of these proceedings.

16. We understand that the reference to “the appointment of three junior Ministers who attend Government meetings” in the submissions made on behalf of Deputy Murphy is not a reference as such to a formal appointment but relates to Deputy Murphy’s objection to Minister Hildegarde Naughton (Minister of State with responsibility for Disability), Minister Noel Grealish (Minister of State with responsibility for Food Promotion, New Markets, Research and Development) and Minister Seán Canney (Minister of State with responsibility for International and Road Transport, Logistics, Rail and Ports), attending at, and participating in, meetings of the Government on a regular or continuous basis.

17. Deputy Murphy has no objection to the attendance at meetings of the Government of the Chief Whip, Minister Mary Butler, who in that capacity is a Minister of State at the Department of the Taoiseach. Minister Butler is also a Minister of State in the Department of Health with responsibility for mental health (as distinct from her position as Chief Whip) and whilst Mr. Rogers SC, in his oral submissions, referred to “three junior Ministers”, the principle of his objection necessarily extends to Minister Butler’s attendance and participation at meetings of the Government in her capacity as a Minister of State in the Department of Health with responsibility for Mental Health. Nor does Deputy Murphy object to the invitation of Ministers of State, advisers, officials or experts attending meetings of the Government from time to time to deal with discrete issues. During the hearing, Deputy Murphy’s clear focus, and the submissions of his counsel, was on the regular attendance and participation of Ministers of State Naughton, Grealish and Canney at meetings of the Government.

18. At paragraph (10) of the Statement of Claim, it is alleged that:

“The Ministers of State concerned play a role in Government meetings similar to any Member of the Government, save for, it is believed, they are not entitled to vote at Cabinet”.

19. At paragraph (11) it is alleged that:

“The Ministers of State concerned (i) are treated in the exact same way at Cabinet meetings as Members of the Government appointed pursuant to Article 13.1.2º in order to avoid the numerical limit of 15 members of Government as fixed by Article

28.1 of the Constitution; (ii) bring their own memos for discussion and decision;

(iii) have access to all cabinet papers; (iv) have a set of advisers remunerated by the Exchequer.”

20. Deputy Murphy pleads at paragraph (12) that:

“The regular attendance of the Ministers of State concerned at Government Meetings is contrary to the 15 person limit in Article 28. It is also contrary to the constitutional obligation of confidentiality, including the confidentiality of briefing materials provided to the members of the Government. The collective responsibility for decisions and acts of the Government is weakened by the promulgation and discussion of those decisions in meetings of the Government which are not confidential by reason of the presence of Ministers of State concerned who are not members of the Government appointed by the President under Article 13.1.2”

21. At paragraph (16) of his Statement of Claim, Deputy Murphy pleads that:

“The Defendants, in permitting the regular attendance of Ministers of State concerned at Government Meetings, is acting in breach of Article 28 of Bunreacht na hÉireann. In particular the appointment of the Ministers of State concerned is in the breach of (i) Article 28.1°, (ii) Article 28.4.1, (iii) Article 28.4.2 and (iv) Article 28.4.3.”

22. In his submissions, and in the evidence adduced by Mr. Ross and Mr. McGrath, reference was also made to Article 28.4.4 of the Constitution (dealing with the estimates process), though it was not formally pleaded or the subject of an amendment application.

23. At paragraph (17) Deputy Murphy alleges that:

“The Ministers of State concerned are purportedly treated as though they are members of the Government by the Defendants as a way to get around the limit of

15 members of the Government as set by Article 28 of Bunreacht na hÉireann.”

24. In summary, therefore, Deputy Murphy contends that the invitation to the relevant Ministers of State to attend and participate at meetings of the Government, on an ongoing basis, elevates them, in effect, to the status of members of the Government, notwithstanding several differences between them, which include differences in their appointment (Ministers of State are appointed by the Government at the nomination of the Taoiseach whereas members of the Government are appointed by the President, pursuant to the approval of the Dáil, at the nomination of the Taoiseach) and their legal status (Ministers of State are not corporations sole).

25. The extent or level of the discussion and participation at the Cabinet by the relevant Ministers of State, and whether this is constitutionally permissible, is a central tenet of Deputy Murphy’s case. It is contended on his behalf that the critical issue centres on whether it is constitutionally permissible for these Ministers of State to attend and participate at Government meetings, not just regularly, but on a continuous basis, where under Article 28 of the Constitution, it is the

15 members of the Government who exercise the collective authority and executive power of the State and it is they alone who are the collective unit.

(B) Summary of the Defendants’ Response

26. The Defendants deny all constitutional breaches and raise several preliminary objections. They maintain that the internal workings of Government are non-justiciable unless there is a clear constitutional breach. Furthermore, the Defendants maintain that Government actions enjoy a presumption of constitutionality. Fundamentally, they contend that, in the exercise of executive powers and in accordance with Article 28 of the Constitution, the Government has constitutional authority over its own operations, including who attends Cabinet meetings.

27. Even if reviewable, contrary to their primary argument, the Defendants’ position is that the Government has broad discretion in managing its internal affairs and the practice of appointing the relevant Ministers of State enjoys legislative support from s. 3A of the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998, as amended by various further pieces of legislation, including the Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 2025, (the “1998 Act”), which explicitly provides for allowances to Ministers of State who attend Cabinet meetings.

28. The Defendants also rely on historical and international practice in support of their contention that the attendance of non-members at Cabinet meetings has precedent and is consistent with international norms. It is further contended that modern governance requires flexibility and discretion in who may attend meetings of the Government and the practice of attendance by the relevant Ministers of State in the within proceedings is not contrary to the Constitution.

29. The Defence delivered on behalf of the Defendants addresses Deputy Murphy’s claims seriatim. As regards attendance at Government meetings, the distinctions between Ministers of State and members of Government are emphasised, including that Ministers of State are not constitutionally members of Government and their attendance at meetings does not make them members, nor, it is said, does it breach Article 28.1. They do not have voting rights or formal roles in decision-making. While the Constitution limits membership of Government to 15, the case made on behalf of the Defendants is that it does not prohibit others from attending meetings.

30. Insofar as Deputy Murphy accepts that the Chief Whip, the Attorney General, and the Secretary General to the Government may lawfully attend Government meetings, it is argued on behalf of the Defendants that this undermines his claim that only members of Government may attend. Eleven distinctions between Ministers of State and Government members are identified, including: the appointment procedures; voting rights; departmental authority; rights of audience in the Oireachtas; memorandum procedures and participation in incorporeal meetings.

31. As for the constitutional requirements of confidentiality and collective responsibility, the Defendants’ position is that Article 28.4.3° of the Constitution (introduced in 1997 by constitutional amendment), does not prohibit attendance by persons who are not members of the Government. Cabinet confidentiality nonetheless applies to non-Government ministers in attendance. Indeed, attendance by non-members has been common since 1994 and was known when Article 28.4.3° was adopted by the People in 1997.

3. SEPARATE JUDGMENT

32. Notwithstanding the differences between these proceedings and the claims made in the Daly 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 Daly proceedings should be read together with this judgment and reference is made to the judgment in Daly, where considered appropriate.

4. THE PROCEEDINGS

33. The Plenary Summons issued in this case on 4th February 2025, approximately a week after Deputy Daly obtained leave to proceed by way of judicial review in the Daly proceedings. The Statement of Claim was delivered on 19th February 2025, followed by a Notice for Particulars raised by the Defendants on 18th March 2025 and replied to on 1st April 2025. The Defence was delivered on 28th April 2025. Thereafter, a number of case management hearings took place and the matter was then transferred to the President’s List.

34. The case was listed on several occasions in the President’s List before a Divisional Court was convened by the President. It was decided that these proceedings should be heard on oral evidence immediately after the conclusion of the Daly proceedings and by the same Court. This decision was taken having regard to the commonality of issues in both cases but also recognising that certain differences exist between the two cases which were such as to make it sensible and a better use of court time that all issues be canvassed at the same time by sequential hearings.

35. When listing the cases to run one after the other the Court relied on assurances given on 28th May 2025 by the parties in relation to the number and identities of witnesses and the likely time required at hearing. Specifically, it was confirmed that the witnesses for the Plaintiff would be the three witnesses that had been listed and whose witness statements had been provided on 22nd May 2025, namely, the Plaintiff, Mr. Shane Ross and Professor Diarmaid Ferriter. The list at that time did not include Mr. Finian McGrath.

36. In accordance with the Court’s directions, witness statements and written submissions were exchanged in advance and indicative timelines were agreed. A late application was notified on behalf of the Plaintiff shortly before the hearing was due to commence to call a further witness. This application, which was opposed on behalf of the Defendants, was ruled on during the currency of the Daly proceedings and in advance of the scheduled commencement of these proceedings. The Court granted liberty to Deputy Murphy to adduce evidence from an additional witness, Mr. Finian McGrath.

5. THE EVIDENCE

37. Each of the witnesses called to give oral evidence adopted their witness statements, giving oral evidence largely in line with their witness statements before being tendered for crossexamination. Evidence was heard over two days on 9th and 10th July 2025. The following is a précis only of the main thrust of the evidence adduced, to the extent considered relevant or necessary in view of the issues we must decide. It is also worth noting that during the hearing of these proceedings, when giving their direct evidence, the witnesses adhered to the constitutional requirement to respect the confidentiality of discussions at meetings of the Government. It was possible for the witnesses to give all relevant evidence without straying into confidential information pertaining to any particular meeting or subject matter.

(A) Evidence of Paul Murphy

38. Deputy Murphy gave evidence that he has been a member of Dáil Éireann since October 2014 and was previously a member of the European Parliament for over three years, from 2011 to 2014, when he took over as the alternate to Deputy Joe Higgins when Deputy Higgins was elected to Dáil Éireann.

39. Deputy Murphy stated that his motivation in bringing these proceedings stemmed from his view that the Constitution was being breached and this had significant ramifications for the public at large and also for him, in carrying out his role as a TD. He referred to two significant consequences: first, there was not a clear line of democratic accountability of the Government to the Dáil; second, the attendance and participation of Super Junior Ministers at meetings of the Government, helping to shape the outcomes and ultimate decisions of the Government created a significant ambiguity about who was actually in the Government, which created a problem for him both in terms of trying to hold that Government to account and also for when he would hope to be in government himself in the future. This was, in his view, a breach of the relevant provisions of the Constitution, in particular, those in relation to having not more than 15 members of the Government, the requirement for the Government to meet and act as a collective body and the provision which provided for the discussions of the Government to be confidential.

40. Deputy Murphy believed that by their attendance at meetings of the Government, the Super Junior Ministers were acting as de facto members of the Government. This was based on his view that for the 2 - 2½ hours that the Government meets on a weekly basis, the Super Junior Ministers are present at those meetings, participating fully in the deliberations of the meeting and seeking to shape outcomes, on the same basis as the full Senior Ministers which, he said, was different to someone being invited to attend for the purpose of giving information to a Government meeting and then withdrawing to allow the 15 members of the Government to consider the matter further and to act as a collective entity. Deputy Murphy stated that the Super Juniors were, therefore, participating fully, acting as de facto members of the Government but were not accountable to the Dáil and they had not been approved by a vote of the Dáil and were, therefore, breaching what he referred to as “the rule of the 15”.

41. Deputy Murphy stated that by proceeding on a consensus basis, given that Government members comprising eight deputies from Fianna Fáil and seven deputies from Fine Gael would not facilitate voting, the Super Juniors may have an influence on the ultimate decision by their oral arguments and that, in his view, it was highly likely that particular Government decisions have been made that would not have been made if it was not for the presence of the relevant Super Junior Ministers.

42. He stated that while he accepted that there would be many occasions where, by the time a matter came to the meeting of the Government, the outcome is accepted and nothing much would change at the meeting itself and the matter would be decided there and then, he also considered that there would be occasions where this would not happen and where there would be disagreement and a debate at a Government meeting and either a decision would not be made that would have been “but for” the presence of the Super Juniors, or that an amended

decision would be made because of the presence of the Super Juniors and the arguments which they made.

43. Deputy Murphy confirmed in evidence that he had no objection to the attendance at Government meetings of those persons whom he described in his witness statement at paragraph 18 as “essential to the running of the Government and therefore must be present to assist in the functioning of the meeting”, namely, the Attorney General, the Secretary General to the Government and the Chief Whip, whereas, in contrast, the Super Junior Ministers did not perform such a function.

44. Deputy Murphy confirmed that he had, for example, no objection to the presence of the Chief Whip at a meeting of the Government, as the Chief Whip, in his view, was not participating in the collective decision making of the 15 members of the Government. He considered that a distinction could be made in the attendance at Government meetings of the Chief Whip, the Secretary General to the Government and the Attorney General, as their function is to assist the 15 members of the Government who are the collective decision-making authority. He considered, however, if the person who held the position of Chief Whip was involved in shaping discussions in her capacity as a Super Junior Minister, rather than Chief Whip, that would be objectionable as she would not be part of “the 15” members of Government. Deputy Murphy drew a distinction between being physically present in the meeting, on the one hand, and the deliberation, participation and shaping of the outcomes when at the meeting, on the other.

45. Deputy Murphy stated that the adoption of the annual estimates under the Constitution was a role for Government but that the attendance of Super Junior Ministers actively participating and engaging in deliberations would ultimately affect the final outcome and therefore the estimates were not being solely set by the Government of 15, acting collectively.

46. Under cross-examination, Deputy Murphy confirmed that he had no direct experience of Government meetings.

47. He further stated that the presence of the Attorney General at a meeting of the Government and providing legal advice was not the same, in his view, as the Attorney General participating in the meeting or in the collective of 15 and, therefore, the Attorney General would not be participating in the sense that the words “meet and act as a collective authority” are to be properly understood. Deputy Murphy asserted that meetings of the 15 as a collective do not now occur as the meetings are now comprised of 15 members plus an additional number of Super Junior Ministers.

48. Again, under cross-examination, Deputy Murphy stated, in answer to a question that by providing legal advice, the Attorney General could influence the outcome of discussions at a meeting of the Government, that this was the same function as the Attorney General being outside the door, rather than physically in the room, and ‘the Government of the 15 members’ asking him to come in and give his view as to whether or not some matter was unconstitutional. Deputy Murphy was not of the view, in such a scenario, that the advice of the Attorney General was affecting the meeting of the 15 members of Government.

49. Deputy Murphy confirmed, under cross-examination, that he had no objection to the presence of the Secretary General to the Government at meetings of the Government and, referring to the Secretary General’s witness statement, stated that he understood that the function of the Secretary General was to take minutes, provide assistance and, presumably, to provide advice on previous decisions, and that he did not believe that it was being suggested that the Secretary General was an active participant in the meeting or acting as part of a collective authority.

50. In answer to the question as to whether the Secretary General, by advising the Government in that way, could potentially influence the outcome of discussions of a Government meeting, Deputy Murphy stated that it was more difficult to conceive of that as being similar to legal advice from the Attorney General which may alter what was previously agreed because, as he understood it, the role of the Secretary General was to note what was agreed or perhaps to provide advice on what was previously agreed. Deputy Murphy stated that had no issue with the Secretary General attending meetings of the Government (or as he stated “being in the room”), as the Secretary General was not acting de facto as part of the collective authority, which was limited, according to the Constitution, to the 15 members of the Government.

51. Under cross-examination, Deputy Murphy also stated that had no objection to the Chief Whip attending Government meetings. He stated that, whilst he had never attended meetings of the Government, he envisaged that the role of the Chief Whip included discussing whether, for example, there were sufficient votes in the Dáil for a legislative measure to proceed and, in that scenario, the Chief Whip could be “outside the room and you call [her] in and you get the advice” but for reasons of practicality, it was convenient to have the Chief Whip attend the meeting (he said that it was “more natural to have her in the room”). Again, Deputy Murphy repeated his view that the Chief Whip was not part of the meeting as a collective authority.

52. Deputy Murphy accepted as a fact that the Chief Whip was a Minister of State and that the prior position was held by a parliamentary secretary to the Department of the Taoiseach.

53. In relation to the general question of third parties attending meetings of the Government on a once-off basis, Deputy Muphy had no issue with a person being called in to meet with the Government and to answer questions about a particular area. His issue was with someone other than the 15 Government members attending, participating and deliberating in meetings of the Government. He would have a problem, he said, if the person who acted as Chief Whip, for example, went further than advising on the parliamentary arithmetic required to get legislative measures through the Dáil and participated in the shaping of the deliberations at Government meetings.

54. Under cross-examination, Deputy Murphy quite properly accepted that the Constitution is silent about the Attorney General, the Secretary General to the Government and the Chief Whip attending Government meetings.

55. Deputy Murphy confirmed the position which was asserted in his witness statement (at paragraph 17) that the mere presence of Super Junior Ministers at Government meetings and the fact that they are privy to discussions at Government meetings was in itself a breach of cabinet confidentiality but that the presence of the Attorney General, the Secretary General to the Government and the Chief Whip was not a breach of such confidentiality because they are present at the Government meetings to assist the meeting and practically it would be difficult for the Secretary General to the Government, as the Cabinet Secretary, to take records and minutes if he was not present and it would be very awkward to call in the Attorney General every time advice was needed at the meeting.

(B) Evidence of Shane Ross

56. In his oral evidence, Mr. Ross adopted his witness statement as his evidence.

57. Mr. Ross was a member of the Oireachtas as a senator for the Dublin University, Trinity College constituency, for almost 30 years between 1981 and 2011. He was first elected to the Dáil in 2011 and was re-elected in the 2016 General Election.

58. After the 2016 General Election, Mr. Ross and approximately six other independent deputies (some of whom had, in 2015, formed a grouping – the Independent Alliance) engaged in negotiations and joined a minority Government with Fine Gael and other Independents, which relied upon a “confidence and supply arrangement” with Fianna Fáil. He served under Taoisigh Kenny and Varadkar.

59. Independent deputies Katherine Zappone and Denis Naughten became members of that Government, as did Mr. Ross, who served as Minister for Transport, Sport and Tourism until June 2020.

60. Other members of the Independent Alliance Group were appointed Ministers of State: Deputy John Halligan (who swore an affidavit on behalf of Deputy Daly in his proceedings) was appointed a Minister of State in several departments over the lifetime of the Government. Deputy Seán Canney and Deputy Kevin (‘Boxer’) Moran shared a Minister of State position over the lifetime of the Government and Deputy Finian McGrath was appointed a “Super Junior Minister of State”, as “Minister for Disabilities”, with the entitlement to attend meetings of the Government. By then, Deputy Michael Fitzmaurice had left the Group.

61. The evidence of Mr. Ross was that Mr. McGrath, as one of the relevant Ministers of State attending meetings of the Government, was treated the same as the members of the Government, including in terms of speaking time. He said that from time to time both Taoisigh Kenny and Varadkar would do a ‘tour de table’ and diverse opinions could be offered, given that there were four independent deputies attending the meetings of the Government (three members/Ministers of the Government who were part of ‘the 15’ and one Minister of State) and the remaining deputies who were in attendance were members of the Fine Gael party.

62. During the two Governments between 2016-2020 (the 30th and 31st Governments) there were other persons who had been appointed as Ministers of State with an entitlement to attend meetings of the Government, in addition to Mr. McGrath: from 6th May 2016, in Taoiseach Kenny’s Government, they were Deputies Regina Doherty and Paul Kehoe; and, from 14th June 2017 in Taoiseach Varadkar’s Government, Deputies Joe McHugh, Mary Mitchell O’Connor and Paul Kehoe.

63. Mr. Ross was of the view that in their contributions the relevant Ministers of State were given as much latitude as that given to any member of the Government and he said “[t]heir words often carried more weight” (para. 6 of Mr Ross’ witness statement). Mr. Ross explained that given the composition of the Government, the remaining members of the Cabinet tended not to argue with each other, and often both he and Mr. McGrath found themselves on one side of a particular issue against the others.

64. He stated that outside the Cabinet Room, the Super Junior Ministers were fully expected to abide by the rules of Government and collective responsibility because they considered themselves to be part of that collective Government and they were behaving very similar to Government Ministers and the rule applied to them as much as members of the Government. He stated that the Super Junior Ministers had full access to Cabinet papers, including memoranda to Government in the same way as any member of Government.

65. Mr. Ross stated that Mr. McGrath was a very vocal Super Junior Minister who attended all the meetings of the Governments of which he (Mr. Ross) was a member (except when not available due to his attendance to other official duties) and that he was willing to speak and contribute his opinion and was always permitted to do so on any topic he chose. He stated that Mr. McGrath at one stage threatened to resign over an issue and that helped to change the Government’s mind.

66. Mr. Ross stated that, during his four years as a member of Government, he never saw a Super Junior Minister either silenced or curtailed from contributing due to their nominally lower status of not being a member of the Government. He stated that at all times the relevant Ministers of State behaved and were treated in the same manner as a member of the Government, including where they so wished, being allowed fully to participate in any discussion on any topic before the Government. On some occasions, he said, they were able to persuade others to their way of thinking on a particular policy and on other occasions they were not.

67. During his cross-examination by the Attorney General, Mr. Ross described the negotiations in 2016 which led to the members of the Independent Alliance Group forming a minority coalition Government with Fine Gael and other independent deputies which relied on a confidence and supply arrangement with Fianna Fáil.

68. Mr. Ross stated that he was aware of the makeup of the Rainbow Coalition formed at the end of 1994 between Fine Gael, Labour and Democratic Left. As Democratic Left had six seats, only Deputy Proinsias de Rossa was made a member of the Government, with Deputy Pat Rabbitte appointed to the position of a Minister of State and allowed to attend Government meetings so that there would be a second Democratic Left representative at meetings of the Government.

69. Mr. Ross stated that Mr. McGrath wished to use the position of a Minister of State attending Government meetings to promote the disabilities portfolio and his interest in disability issues. Mr. Ross stated that he never discussed with Mr. McGrath which of them would be a member of the Government and which would be a Super Junior Minister (Transcript Day 1, p. 115, para. 173).

70. Under cross-examination, Mr. Ross agreed with the following sequence of events which took place on Friday 6th May 2016 in connection with the formation of the 30th Government.

(i) 2016

71. On 6th May 2016, the Dáil met and voted to nominate Deputy Kenny as Taoiseach for appointment by the President. Deputy Kenny went to Áras an Uachtaráin and was appointed as Taoiseach by President Higgins.

72. The newly appointed Taoiseach returned to Government Buildings that day and made a speech seeking that Dáil Éireann approve the nomination by him of 14 named deputies for appointment by the President to be members of the Government (who he listed). Mr. Ross was the 12th person nominated and was present in the Dáil Chamber at the time and he was assigned a Department of State, being the Department of Transport, Tourism and Sport, when the Departments were being assigned to the persons nominated as (Senior) Ministers.

73. The Taoiseach stated that he would assign the Department of Defence to himself and added that he intended “to nominate Deputy Paul Kehoe as a Minister of State attending Government as Minister of State at the Department of the Taoiseach, and the Department of Defence, with special responsibility for the Department of Defence.”

74. Thereafter, the Taoiseach stated that he proposed “to nominate Maura Whelan SC for appointment by the President to be the Attorney General” and that he also proposed “to nominate Deputy Regina Doherty as Minister of State at the Department of the Taoiseach and Government Chief Whip and Deputy Finian McGrath as Minister of State attending the Government and Minister of State at the Departments of Social Protection, Justice and Equality and Health with special responsibility for Disability Issues.”

75. Mr. Ross agreed that the Taoiseach in his speech on 6th May 2016, the first date on which Mr. Ross was appointed to Government, clearly distinguished between the 14 Cabinet Ministers (members of the Government) and the Ministers of State, including Mr. Finian McGrath.

76. Mr. Ross then agreed with the following documents and sequence for 2016, which sequence was repeated in 2017 and 2025.

77. Mr. Ross confirmed the following formal documentation for the appointment of the Taoiseach and members of the Government in 2016:

(i) the warrant of appointment of the Taoiseach dated 6th May 2016;

(ii) the warrant of the appointment of the other 14 members of Government (in English and Irish) dated 6th May 2016, signed by President Higgins and countersigned by Taoiseach Kenny (which did not include the Ministers of State);

(iii) a memorandum from the Clerk of the Dáil to the Secretary General to the President enclosing a copy of the resolution passed by the Dáil at its meeting on 6th May 2016 approving the nomination by the Taoiseach of 14 deputies, who are then listed and named in Irish and English, for appointment by the President to be members of the Government (which does not include any Ministers of State or any Ministers of State attending meetings of the Government);

(iv) the record of the Government decision dated 6th May 2016 where the Government, on the nomination of the Taoiseach, pursuant to s. 1 of the Ministers and Secretaries (Amendment) (No.2) Act, 1977 (as amended) (“the 1977 Act”), appointed Regina Doherty to be Minister of State at the Department of the Taoiseach, with special responsibility as Government Chief Whip, Paul Kehoe to be Minister of State at the Department of the Taoiseach and the Department of Defence, with special responsibility for the Department of Defence and Finian McGrath to be Minister of State at the Department of Social Protection, the Department of Justice and Equality and the Department of Health, with special responsibility for disability issues.

78. Mr. Ross further confirmed that Mr. McGrath was appointed by Government at its meeting on 6th May 2016, and that he was not appointed in the same way as, for example, Mr. Ross had been appointed as a member of the Government by the President and Mr. Ross confirmed this also by reference to the traditional photograph which was taken on the evening of 6th May 2016 at Áras an Uachtaráin, with the President.

(ii) 2017

79. Mr. Ross also agreed under cross-examination with the following sequence of events which occurred on Wednesday 14th June 2017 in connection with the formation of the 31st Government after Mr. Kenny had resigned as leader of Fine Gael and (then) Minister Varadkar had won an internal Fine Gael leadership contest against Minister Simon Coveney.

80. In accordance with Article 28.11 of the Constitution, upon Mr. Kenny’s resignation as Taoiseach, all the members of Government were deemed to have resigned and were performing their respective roles in an acting capacity.

81. On 14th June 2017, Minister Varadkar was nominated by Dáil Éireann for appointment as Taoiseach by the President.

82. On 14th June 2017, he travelled to and from Áras an Uachtaráin returning to the Dáil where, in his speech, he sought the approval of the Dáil, on his nomination, of 14 deputies to be appointed by the President to be members of the Government. The tenth person named in his speech was Mr. Ross and he was reassigned a Department of State, namely, the Department of Transport, Tourism and Sport.

83. Separately, in the same speech, the Taoiseach stated that he proposed “to nominate Séamus Woulfe SC for appointment by the President to be the Attorney General” and that he proposed “to nominate the following as Ministers of State who will attend Cabinet: Deputy Joe McHugh as the Government Chief Whip and Minister of State at the Department of Arts, Heritage and the Gaeltacht with responsibility for Gaeilge, Gaeltacht and the Islands, Deputy Mary Mitchell O’Connor as Minister of State at the Department of Education and Skills with responsibility for higher education, Deputy Paul Kehoe as Minister of State at the Department of the Taoiseach and the Department of Defence with responsibility for Defence and Deputy Finian McGrath as Minister of State at the Department of Social Protection, the Department of Justice and Equality and the Department of Health, with special responsibility for disability issues….”

84. Mr. Ross agreed that in his Dáil speech on 14th June 2017, Taoiseach Varadkar made it clear that he was distinguishing between, on the one hand, the Government Ministers (members of the Government) and, on the other hand, Ministers of State.

85. As with 2016, Mr. Ross then agreed with the following formal documentation for the appointment of the Taoiseach and members of the Government in 2017:

(i) a copy of a covering letter from the Secretary General to the President, Art O’Leary, to the Secretary General to the Government, Martin Fraser, enclosing the warrant of appointment of Mr. Varadkar as Taoiseach;

(ii) the warrant of the appointment of the other 14 members of Government (in English and in Irish) dated 14th June 2017 signed by President Higgins and countersigned by Taoiseach Varadkar;

(iii) a memorandum from the Clerk of the Dáil to the Secretary General to the President enclosing a copy of the resolution that was passed by the Dáil at its meeting on 14th June 2017 that Dáil Éireann approved the nomination by the Taoiseach of 14 deputies, who were then listed and named in Irish and English, for appointment by the President to be members of the Government (which did not include any Ministers of State or any Ministers of State attending meetings of the Government);

(iv) the record of the Government decision on 14th June 2017 where the Government, on the nomination of the Taoiseach, pursuant to s. 1 of the 1977 Act (as amended), appointed Deputy Joe McHugh to be Minister of State at the Department of the Taoiseach with responsibility as Government Chief Whip and Minister of State at the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs with responsibility for Gaeilge, Gaeltacht and the Islands, Deputy Mary Mitchell O’Connor T.D. to be Minister of State at the Department of Education and Skills with responsibility for Higher Education, Deputy Paul Kehoe as Minister of State at the Department of the Taoiseach and the Department of Defence with responsibility for Defence and Deputy Finian McGrath to be Minister of State at the Department of Social Protection, the Department of Justice and Equality and the Department of Health, with special responsibility for Disability Issues.

86. Mr. Ross confirmed that 6th May 2016 and 14th June 2017 were the first meetings of those respective Governments in Áras an Uachtaráin, where one of the first items on the agenda of the Government, was the decision of the Government to appoint these Ministers of State on the nomination of the Taoiseach, and, that they were, therefore, in fact appointed in a different manner to the members of the Government.

87. Mr. Ross agreed that in both May 2016 and June 2017, 15 persons (including the Taoiseach) were appointed as Government Ministers (members of the Government) by the President and that the Super Junior Ministers were in a different category. They were not appointed by the President. They did not receive Seals of Offices in Áras an Uachtaráin. They were not the subject of the resolution passed in the Dáil. They were appointed by a completely different method.

(iii) 2025

88. Mr. Ross was then taken by the Attorney General through the similar process and documentation for 2025 (which we have set out in detail in our judgment in the Daly proceedings). At paragraph 11 of his witness statement in these proceedings, Mr. Ross referred to an extract from Taoiseach Martin’s speech to the Dáil on 23rd January 2025 seeking to approve the nomination by the Taoiseach of the 14 deputies listed for appointment by the President to be members of the Government, where the distinction between members of the Government and Ministers of State is also made.

89. The 2025 documentation adduced in evidence included:

(i) the warrant of appointment signed by the President of Deputy Micheál Martin as Taoiseach on 23rd January 2025;

(ii) a memorandum signed by Deputy Verona Murphy, the Ceann Comhairle, enclosing the Resolution passed by the Dáil on 23rd January 2025 approving the nomination by the Taoiseach of the 14 named Deputies for appointment by the President to be members of the Government; the nominations by the Taoiseach of the members of the Government;

(iii) the warrant of appointment of those 14 persons signed by the President on 23rd January 2025 and countersigned by Taoiseach Martin;

(iv) a copy of the Taoiseach’s appointment of Deputy Simon Harris as Tánaiste; a copy of the Taoiseach’s assignment of the Departments of State (in the Irish language) to members of the Government appointed by the President;

(v) the warrant of the appointment by the President of Rossa Fanning SC as Attorney General; a copy of the Government decision dated 23rd January 2025, appointing on the nomination of the Taoiseach and in exercise of the power conferred on the Government by s. 1 of the 1977 Act (as amended), Deputy Mary Butler 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; Deputy Hildegarde Naughton to be Minister of State at the Department of Children, Equality, Disability, Integration and Youth with special responsibility for Disability; Deputy Noel Grealish 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 Deputy Seán Canney to be Minister of State at the Department of Transport with special responsibility for International and Road Transport, Logistics, Rail and Ports.

90. Later, on 29th January 2025, the Government, on the nomination of the Taoiseach, appointed an additional seventeen deputies as Ministers of State, pursuant to s. 1 of the 1977 Act (as amended) and, on 25th February 2025, appointments were made in the same manner of a further three deputies as Ministers of State.

91. Whilst Mr. Ross could not be sure, he stated that it was likely that he received copies of the 1937 Constitution on each of the occasions of the first meeting of the new Government in Áras an Uachtaráin in May 2016 and in June 2017, but did not recall whether on each of those occasions he had also received copies of the Department of the Taoiseach Cabinet Handbook (“the Cabinet Handbook”). Mr. Callinan’s evidence was that members of the Government, and the deputies who were to be later appointed as Ministers of State attending Government meetings, received both documents at that first meeting in Áras an Uachtaráin. Mr. Ross confirmed that he was, in any event, familiar with the Cabinet Handbook.

(iii) Concurrent Delegation from Members of the Government to Ministers of State

92. As head of a Department of State, Mr. Ross oversaw the Department of Transport, Tourism and Sport and stated that he was familiar with the relationship between a member/Minister of the Government and a Minister of State who had been assigned to a particular Department of State. Between 2016 to 2017 the Minister of State in the Department of Transport, Tourism and Sport was Deputy Patrick O’Donovan and between 2017 and 2020, it was Deputy Brendan Griffin. Mr. Ross confirmed that neither of these Ministers of State were delegated powers by him during his tenure.

93. Mr. Ross indicated that he was familiar with the differences in the responsibilities of the roles of a member of the Government in contrast to those of a Minister of State. In terms of the process of concurrent delegation he confirmed that he had not, during the four years of his time in charge of the Department of Transport, Tourism and Sport, specifically delegated any statutory functions to either of the Ministers of State assigned to his department.

(iv) Cabinet Handbook

94. Mr. Ross agreed that Government policy is worked out during Cabinet Committee meetings, which comprise Ministers, both members of the Government and Ministers of State, senior officials such as Secretaries General and Assistant Secretaries General and special advisers.

Appendix 8 of the Cabinet Handbook sets out the Cabinet Committee guidelines and provides the following definition at paragraph (1), p. 84: “Cabinet Committees are committees which are established by Government to assist it in carrying out the responsibilities of Government, and which derive their authority and privileges from Government. Cabinet Committees have a membership comprising two or more members of Government and may also include the Attorney General and Ministers of State.”

(v) Seniority

95. Mr. Ross confirmed that the seniority of the members of the Government is in ascending order in the Warrant of Appointment which is recorded in the speech which the Taoiseach gives to the Dáil (after returning from Áras an Uachtaráin on the day of his appointment) and is also reflected in the seating arrangements at the Cabinet table.

96. By reference to two diagrammatic plans entitled “Seating Arrangements for Government Meetings” in the Council Chamber, for the 30th and 35th Governments, the layout around the table was confirmed by Mr. Ross as follows: the second most Senior Minister, in this case, the Tánaiste, sits opposite the Taoiseach, and seniority, in terms of the seating arrangements between ministerial colleagues moves out from either side (left and right) of the Tánaiste. The Secretary General to the Government sits to the left of the Taoiseach and the Attorney General sits to the left of the Secretary General. The Chief Whip sits to the right of the Taoiseach.

(vi) Government meetings: record of attendance

97. Mr. Ross also confirmed the manner of recording the attendance at meetings of the Government, which agreed with the evidence given by Mr. Callinan, and the manual completion by the Secretary to the Government on a sheet of paper known as the “blue slip” (Cruinniú den Rialtas).

98. Sample attendance records were adduced in evidence and presented to Mr. Ross. It was noted that typically, the blue slips record who attended, and who did not attend, the relevant meeting of the Government.

99. The blue slip was adduced in evidence by way of example from the attendance record of the Government meeting on 26th April 2017. The blue slip was manually completed by the Secretary General to the Government (confirmed as typical at every such meeting). In the case of the example from 26th April 2017, it was confirmed that the meeting of the Government was from 11.40 to 13.45.

100. In the case of this particular blue slip it lists the 15 members of the Government, the three Ministers of State attending Government meetings, the Attorney General, the Secretary to the Government and the Assistant Secretary to the Government, and confirms those who attended and those who did not, as follows:

“1 Mr. Kenny 9 Ms. Humphreys

2 Ms. Fitzgerald 10 Mr. Harris

3 Mr. NoonanX 11 Mr. Creed

4 Mr. Bruton 12 Mr. NaughtonX

5 Mr. Coveney 13 Mr. RossX

6 Dr. VaradkarX 14 Ms. Mitchell O’Connor

7 Mr. Flanagan  15 Ms. Zappone

8 Mr. Donohoe

Airí Staít

Ms. Doherty Ard Aighne

Mr. KehoeX Ard-Runaí

Mr. McGrath Runaí CuntaX”.

101. As the blue slip confirms, Mr. Ross agreed that there was a distinction made in the attendance record between the 15 members of the Government who were numbered one to fifteen and other persons named at the foot of the document which referred to na h-Airí Stáit who are the Ministers of State, Ms. Doherty (the Chief Whip, though that is not stated), Mr. Keogh and Mr. McGrath and on the right hand side an t-Ard Aighne (the Attorney General), an t-Ard Rúnaí (the Secretary General to the Government and an Rúnaí Cúnta (the Assistant Secretary).

102. Mr. Ross confirmed that he was marked absent at that meeting, with the probability that he was on European business on that day.

103. The attendance (blue slip) record of the Government meeting on Tuesday, 22nd October, 2019 was also put to Mr Ross. It confirms that the meeting took place between 10.15 to 12.15. It lists the 15 members of the Government, the four Ministers of State attending Government meetings, the Attorney General and the Secretary to the Government and the Assistant Secretary to the Government, and those who attended and those who did not, as follows:

“1 Dr. Varadkar 9 Mr. RossX

2 Mr. Coveney 10 Ms. Zappone

3 Mr. Donohoe 11 Mr.Ring

4 Mr. Bruton 12 Ms.Doherty

5 Mr. Flanagan 13 Mr.Murphy

6 Ms. Humphreys 14 Ms.Madigan

7 Mr. Harris 15 Mr. McHugh

8 Mr. Creed

Airí Staít

Mr. Kine Ard Aighne

Ms Mitchell O’Connor Ard-Runaí

Mr. Keogh Runaí CuntaX”.

Mr. McGrath

104. This record shows the changes in seniority as between the members of the Government, with Mr. Ross having moved from 13th position to 9th position in terms of ranking within the Cabinet. Mr. Ross agreed that the attendance record which listed Government members (Cabinet Ministers) at 1 to 15 clearly distinguished between those Government members and the other attendees to the meeting.

105. Mr. Ross was furnished with the attendance (blue slip) record of the Government meeting for this year, on 27th May 2025, which confirms that the meeting took place between 9.50 to

12.10. It lists the 15 members of the Government, the four Ministers of State attending Government meetings, the Attorney General, the Secretary to the Government and the Assistant Secretary to the Government, and those who attended and those who did not, as follows:

“1 Mr. Martin 9 Mr. Calleary

2 Mr. Harris 10 Mr. O’Donovan

3 Mr. Donohoe 11 Ms. Carroll McNeill

4 Mr. Chambers 12 Mr. Browne

5 Ms. McEntee 13 Mr.O’Callaghan

6 Mr. O’Brien 14 Mr. Heydon

7 Ms. Foley 15 Mr. Lawless

8 Mr. Burke

Airí Staít

Ms. Butler  Ard Aighne

Ms. Naughton Ard-Runaí

Mr. Grealish Runaí CuntaX”.

Mr. Canney

106. The blue slip attendance record for 27th May 2025 confirms that the 15 members of the Government are named 1 to 15 and their attendance is recorded. As before, the Ministers of State are named in the bottom left hand corner; the Attorney General and the Secretary General to the Government are listed on the right-hand corner.

107. Mr. Ross agreed that the official records of attendance at Government meetings confirmed that there was a distinction drawn between those who are present as members/Ministers of the Government (Government Ministers), on the one hand, and other persons in attendance, on the other.

(vii) Incorporeal meeting

108. Mr. Ross was shown an example of a copy of a redacted record of an incorporeal meeting of the Government dated 11th February 2025. The record listed numbers 1 to 15 with the columns, left to right, setting out the members/Ministers of Government in order of seniority (with the Taoiseach at number 1), and referring sequentially to the name of the Minister, the Department of State, Private Secretary, the contact phone number for the Minister and whether or not the Minister agrees with the proposal, indicated by the letter (Y) for “yes” and the letter (N) for “no”, which was put to the incorporeal meeting.

109. The copy of the proposal in this example of an incorporeal meeting was that made by the member of Government/Minister James Browne, the Minister for Housing, Local Government and Heritage, as the “Sponsoring Minister” (the specific contact details of the copy document were redacted for the purpose of this hearing).

110. In his written and oral evidence to the Court, the Secretary General to the Government, Mr. Callinan, stated that the only persons who are contacted at an incorporeal meeting are the 15 members of the Government and that the Ministers of State, including the Super Junior Ministers, are not contacted because they have no entitlement to make Government decisions. The Attorney General is also not contacted during an incorporeal meeting and, if there was a concern as to whether legal advice ought to be given on the proposal, that would happen at an earlier stage prior to the incorporeal meeting.

111. Mr. Ross confirmed his agreement with this description of an incorporeal meeting.

(viii) Decisions at meetings of the Government are based on Memoranda

112. The decision-making process of the Government is prescribed in writing in the Cabinet Handbook which sets out how the Memorandum system operates.

113. In summary, if a Minister/member of Government is making a proposal which warrants a Government decision (i.e. a “Memorandum for a proposal requiring a Government

Decision”), a Memorandum is circulated only to the other 14 members of the Government who have the opportunity to submit observations on the Memorandum. It is a prescribed iterative process so that the final version of the Memorandum which comes to a meeting of the Government for discussion and agreement has already recorded on it the observations of the other 14 members of the Government and the responses to those observations of the sponsoring Minister who made the initial proposal. The observations may include advice from the Office of the Attorney General.

114. During his evidence, Mr. Ross was referred to a (redacted) “Memorandum for a proposal requiring Government a Decision” dated 5th December 2019 from his Department of State headed “Oifig an Aire Iompair, Turasóireachta agus Spóirt, Memorandum for the Government, Legislative Amendments Required for the Testing on Irish Roads of Connected and Autonomous Vehicles (CAVs)” which was a printed copy of the Memorandum for the Government from the eCabinet online platform used by the Government for its meetings.

115. Under the first sub-heading, “(1) Decision Sought”, this Memorandum stated as follows:

“The Minister for Transport, Tourism and Sport asks the Government to agree in principle-to draft Heads of legislation, for inclusion as part of the Road Traffic (Miscellaneous Provisions) Bill, to provide for testing on Irish roads of Connected and Autonomous Vehicles (CAVs).”

116. The second sub-heading was entitled “(2) Background/Reason for Memorandum” and set out the background and other relevant information. The third sub-heading was entitled “(3) Other Relevant Information” and referred to legal advice which has been redacted for the purposes of these proceedings. The fourth sub-heading set out “(4) Impacts”. The fifth sub-heading referred to “(5) Cost to Exchequer of Proposal”. The sixth sub-heading was entitled “(6) Ministerial Observations” and recited that “This memorandum was circulated to all Government departments and the Office of the Attorney General. The Minister for Transport, Tourism and Sport acknowledges and welcomes all observations received. They will be taken into account in the drafting of the proposed legislation.”

117. There then followed a summary of the “Ministerial Observations” submitted, and confirmation where none were submitted, by the members of the Government only (their titles referred to in the Irish language). In this case, the Memorandum referred first to the observations of the Minister for Finance, then to the Minister for Public Expenditure and Reform, the Minister for Children and Youth Affairs and the Minister for Housing, Planning and Local Government, noting that no observations had been received from each of these three Ministers.

118. Under a further sub-heading “Observations Returned”, the positions of the following further members of the Government were summarised: the Minister for Rural and Community Development, the Minister for Education and Skills, the Minister for Communications, Climate Action and the Environment the Minister for Health. The observations from an t-Ard- Aighne (Attorney General) were redacted. The positions of the Minister for Defence, the Minister for Culture, Heritage and the Gaeltacht, the Minister for Justice and Equality, the Tánaiste and Minister for Foreign Affairs and Trade, the Minister for Employment Affairs and Social Protection and the submissions of the Minister for Business, Enterprise and Innovation were all set out.

119. Mr. Ross agreed that the iterative process which led to this Memorandum, which required a

decision from the Government, the Memorandum had been only circulated to the 15 members of the Government (Government Ministers). The Attorney General’s legal advice was also incorporated and, therefore, as legal adviser to the Government, he was furnished with a copy of the Memorandum during the iterative process.

120. Whilst stating that the following matter should be put to Mr. (Finian) McGrath, Mr. Ross was not in a position to disagree with the proposition which was put to him (leaving aside the legal advice in the observations from the Office of the Attorney General) that the eCabinet online platform system, from which this printed copy of the Memorandum for the Government dated 5th December 2019 was taken, was confined to seeking observations from the 15 members of the Government and that it was not possible for a Minister of State (there being no facility in the eCabinet system) to submit observations on a proposal made by a member/Minister of the Government which required a decision of the Government.

121. Mr. Ross did not disagree with the proposition put to him that no Minister of State had the power to submit observations on a Memorandum circulated by a Government Minister.

122. Mr. Callinan’s witness statement and intended evidence that only members/Ministers of the Government could bring a Memorandum to a meeting of the Government and that it was not possible for a Minister of State to bring a Memorandum to Government, was put to Mr. Ross. Mr. Ross confirmed his understanding that this was the normal practice during his time as a member of the Government between 2016 and 2020 and stated that he was not certain that this was what happened in all cases and suggested that Mr. McGrath be asked about it.

123. When offered the opportunity of outlining whether he disagreed with anything that he had read in Mr. Callinan’s witness statement, Mr. Ross answered initially in the negative and then commented that Mr. Callinan’s statement which addressed the meetings on a Monday night between the Taoiseach, the Tánaiste and the leader of the Regional Group was interesting and he saw this as giving the leader of the Regional Group a very powerful position and an enormous influence over the Taoiseach and the Tánaiste and an input into the Cabinet agenda the following day.

124. In terms of a differentiation between “having political influence” and “somebody being a member of Government” (Transcript Day 1, p. 161, para. 387), Mr. Ross stated that attendance at a Government meeting was not just a matter of political influence but it also allowed influence on legislation.

125. Mr. Ross agreed that there were instances of deputies having political influence because a Government needed their votes but without them necessarily having to become a member of the Government or a Minister of State including, for example, the influence of various independent deputies such as Deputy Tony Gregory in the context of “the Gregory Deal” in 1982 (when Mr. Charles J. Haughey was Taoiseach), the influence of deputies such as Deputy Jackie Healy Rae, Deputy Mildred Fox and Deputy Tom Gildea (at various times when Mr. Bertie Ahern’s was Taoiseach) from 1997. It was put to him that the same could be said about the influence of well-known political advisers (such as P.J Mara and Fergus Finlay) who were not members of the Government but were influential, and Mr. Ross agreed.

126. It was also put to Mr. Ross that the same point could also be made in the context of the legitimate exercise of influence, by, for example, a Minister of State (including the relevant Ministers of State) making a telephone call or doing something in the available time outside of the 2 hours of the Cabinet meeting on a Tuesday (when the Dáil is sitting) or on a Wednesday (when the Dáil is in recess) i.e. during the other 166 hours of the 168 hours in the week. Mr. Ross agreed that it was perfectly legitimate for any Minister of State to seek to influence a Government decision this way outside of the 2 hours of the Cabinet meeting but he sought to distinguish the influence the relevant Ministers of State would have on legislation, which may have nothing to do with them but arose by virtue of their presence at the relevant Government meeting.

127. In response to the Attorney General, Mr. Ross indicated that he was aware of the Cabinet confidentiality rule throughout his time in Government and that he “wrote a book which talked about a lot of matters which happened at the Cabinet and some of them were certainly matters which may or may not have been in the public arena at the time.” (Transcript Day 1 at p. 168, para. 416).

(C) Evidence of Finian McGrath

(i) Ruling on Finian McGrath’s evidence

128. The admission of Mr. McGrath’s evidence was the subject of a ruling by the Court on 8th July 2025 on foot of a late application presaged by a letter dated 2nd July 2025 from the Plaintiff's solicitors, enclosing a witness statement of Mr. McGrath. In this correspondence, Deputy Murphy’s solicitors had asserted that Mr. McGrath had not been prepared to give evidence when first contacted by them. It was to transpire that Mr. McGrath was not contacted directly by Deputy Murphy’s solicitors prior to 28th May 2025 and that in fact the information which they had ascertained in relation to Mr. McGrath's willingness to give evidence was information that they had discerned from Mr. Ross. Following an exchange of affidavits, it was acknowledged on behalf of Deputy Murphy that it was, in fact, Mr. Ross who had contacted his solicitors to indicate Mr. McGrath’s now willingness to give evidence at the hearing.

129. In grounding the application, several reasons were identified for allowing evidence on foot of a late witness statement from Mr. McGrath. These reasons included that Mr. McGrath was the only Super Junior Minister who would be giving evidence in the case, if permitted to do so, and that he had relevant and important evidence to give which would not significantly or unduly add to the length of the proceedings.

130. The application was opposed on behalf of the Defendants, who objected to factual inaccuracies which they said created a false impression that Mr. McGrath had changed his mind about giving evidence when, in fact, he had not been directly approached at all in the first place.

131. The Court ruled on the objection there and then, deciding to allow Mr. McGrath to give evidence. We accepted that Mr. McGrath had relevant evidence to give as the only Super Junior Minister giving evidence in this case. We also had regard to the fact that this is a plenary action and that, while directions had been given by the Court with a view to properly managing the conduct of the proceedings and enabling the case to get on for hearing on an expeditious basis, non-compliance with those directions was not an absolute bar to the admission of relevant evidence, where an adequate explanation was provided as to why that had occurred. Ultimately, we were satisfied that it was in the interests of justice to allow the evidence in. We had specific regard to the fact that there was no consequential injustice to the Defendants who had been aware of the evidence proposed to be given by Mr. McGrath since the evening of 2nd July 2025 (i.e. for almost a week) and had had sufficient time to prepare for that evidence and to prepare to cross-examine Mr. McGrath. The fact that it was not envisaged that the additional evidence would add significantly to the duration of the case or disturb the timetable fixed also weighed heavily, in our view, in favour of admitting Mr. McGrath’s evidence.

132. Although afforded an opportunity to make submissions in relation to the sequencing of the additional witnesses or the submission of further evidence in response, it was confirmed on behalf of the Defendants that no special facility in that regard was required.

133. In summary, the Court held, notwithstanding the objections made on behalf of the Defendants, that the evidence of someone who held the position of a relevant Minister of State would be of assistance in addressing the factual issues raised in the claims made by Deputy Murphy and that it should be permitted to be given.

(ii) Government formation negotiations

134. In his evidence Mr. McGrath confirmed that he was first elected to Dáil Éireann in 2002 and served four terms.

135. He outlined that in the negotiations for the formation of the Government in 2016, together with other Independents, he formed the group, Independent Alliance, on an agreed platform. His particular interest was to advocate for and on the issue of people with disabilities which ultimately resulted in his appointment by the Government on two occasions (2016 and 2019) as Minister of State at the Departments of Social Protection, Justice and Equality, and Health, with special responsibility for Disability attending meetings of the Government.

136. Mr. McGrath also had interests and involvement in other issues during his four-year ministerial career which, on his evidence included, for example, the economy, educational disadvantage, DEIS schools and foreign affairs.

(iii) Appointment as Minister of State

137. As confirmed in his evidence, on 6th May 2016 Mr. McGrath was appointed by the Government, on the nomination of Taoiseach Kenny, as a Minister of State at the Departments of Social Protection, Justice and Equality and Health with special responsibility for disability issues and attending meetings of the Government, and was reappointed to the same position on 14th June 2017, by the Government, on the nomination of Taoiseach Varadkar. He held that position for four years. Mr. McGrath was in fact appointed as a Minister of State by the Government decision made on the evening of 6th May 2016 at the Government meeting which took place after the appointment of the Government by the President in Áras an Uachtaráin on that date. He attended that initial meeting as a deputy and at that meeting he was appointed a Minister of State by the Government on the nomination of the Taoiseach.

(iv) UN Convention on the Rights of Persons with a Disability

138. Mr. McGrath stated that he, and his independent colleagues, were responsible for most of the content of the Programme for Government in 2016 which addressed issues in relation to disabilities, which included the United Nations Convention on the Rights of Persons with Disabilities, which was an important matter for him.

(v) Difference between supporting and being part of Government

139. Mr. McGrath stated that while, as a deputy, he provided support to Governments led by Taoisigh Ahern and Cowen, which would give him access to Ministers where he could, for example, raise constituency issues directly, this was less influential than being a Minister of State attending weekly Government meetings, being included in the debate and the decisionmaking process and, for example, representing the State abroad. He instanced, for example, the work he did in ensuring that the United Nations Convention on the Rights of Persons with Disabilities was ratified and being asked by the Taoiseach to attend and address the United Nations in New York.

(vi) Attendance at meetings of the Government

140. Mr. McGrath explained that his experience of attending meetings of the Government under both Taoisigh Kenny and Varadkar was that he was welcomed and treated with respect and that Ministers of State attending Government meetings, like himself, were treated exactly the same as members of the Government. He stated that there was no leader of Independent Alliance, that each member of the grouping was equal and that both he and Mr. Ross were treated as equals by the Taoiseach during Government meetings. He stated that both Taoisigh Kenny and Varadkar treated him and other Superior Junior Ministers identically and as though they were “full” members of the Government (Transcript Day 2, at p. 48, para. 111). He instanced two examples of this: first, at a private meeting in the Taoiseach’s office after his appointment, the Taoiseach emphasised to him the importance of Mr. McGrath’s position and that he would be responsible for a budget of approximately €1.2 billion for disability services; second, at meetings of the Government every attendee was treated exactly the same way by the Taoiseach who, at times, if the matter was not contentious or there was not a wide range of speakers, would facilitate Mr. McGrath asking a question of a member of the Government on an issue, for example, relating to foreign affairs, and Mr. McGrath, in turn, could be asked questions on disability-related issues.

141. When attending meetings of the Government, Mr. McGrath stated that there was no distinction between him and other members of the Government. He stated that he was encouraged by both Taoisigh Kenny and Varadkar, who were very inclusive, to participate in debates and decision-making at meetings of the Government and stated that, notwithstanding the differences, including from time to time “rows and debates”, he was pleasantly surprised by the respect shown for the minority voices of himself and Mr. Ross, as two independent Ministers, and felt that they were part of a power sharing and inclusive Government (Transcript Day 2, p. 41, para. 93).

142. At meetings of the Government, Mr. McGrath stated that he was the “go to” person on disability matters concerning different departments and he would be questioned as such, at meetings of the Government.

143. Mr. McGrath was cross-examined by the Attorney General and gave the following evidence (Transcript Day 1, p. 67, para. 187).

144. Mr. McGrath accepted, in distinction to members of the Government, that his entitlement as a Minister of State to regularly attend meetings of the Government arose from a political agreement or arrangement and that at a meeting of the Government, each Department of State was represented by the member/Minister of the Government who was legally and constitutionally in charge of that Department whereas the powers of each Minister of State arose pursuant to a delegation order made under s. 2 of the 1977 Act (as amended) which was the case irrespective of whether they attended Government meetings.

(vii) Consensus of the 15 members of the Government

145. Mr. McGrath accepted that at the meetings of the Government which he attended during his four years as a Minister of State, decisions were made by consensus (with no votes) and he agreed that any such decision made by the Government was the consensus of the 15 Government members/Ministers of the Government who attended the meeting (Transcript Day 1, p. 102, para. 391).

(viii) Incorporeal meeting

146. Mr. McGrath accepted as correct that during his four years as a Minister of State he was never once telephoned and asked for his view at an incorporeal meeting because he was not a member/Minister of the Government, and had no decision-making role but that he might subsequently have received a courtesy e-mail informing him what had happened.

(ix) Inscription on copy of the Constitution

147. Under cross-examination, Mr. McGrath accepted that Taoiseach Varadkar did not give him the copy of the Constitution inscribed with the words “Many thanks for your work as Ireland’s first Minister For Disability” when “he became Taoiseach”, as he had initially incorrectly stated in his witness statement dated 2nd July 2025. Then Minister Varadkar had become Taoiseach in June 2017. The General Election occurred on 8th February 2020 and the inscription on the inside cover of the copy of the Constitution which Taoiseach Varadkar had given to Mr. McGrath was dated February 2020 and Mr. McGrath had not contested that election. He did not disagree that it was given as a measure of a valedictory after the General Election, when Mr. McGrath was leaving Government and when a new Government was going to be formed.

(x) Response to Mr. Callinan’s witness statement

148. Mr. McGrath did not believe that he had read Mr. Callinan’s witness statement dated 23rd June 2025 before signing his witness statement on 2nd July 2025 but confirmed that he had read it before giving evidence in the proceedings on 10th July 2025. He did not demur from Mr. Callinan’s evidence that Super Junior Ministers were not afforded access to memoranda for the purpose of making observations or submissions in advance of meetings.

149. However, Mr. McGrath referred to a process of “co-sponsoring” by which he meant bringing a Memorandum to Government jointly with a Minister for Government. Mr. McGrath did not accept that a Minister for State could never bring a Memorandum to Government in his name, contending that he had done so on several occasions. He was challenged on this evidence in cross-examination and was asked to give examples of occasions when this had occurred.

150. The following examples were given by Mr. McGrath during his direct evidence with sufficient particularity to enable the identification of the relevant Memorandum by the Defendants but mindful of the restraints of cabinet confidentiality. Mr. McGrath’s evidence that he had brought the Memoranda to Government, instancing these examples, was then explored with him under cross-examination upon the production of the official records of the meetings in question.

151. The following examples refer to extracts of the Memoranda produced in evidence.

(xi) Memorandum to Government - Example 1

152. In the first example, the title of the Memorandum is “Oifig an Aire Sláinte, Memorandum for the Government, Establishment of a Commission of Investigation on certain matters relative to a disability service….” The date was given as “03/03/2017” and a reference number is given. The Memorandum emanates from the Office of the Minister for Health, who was then Minister Simon Harris i.e. the member of Government or Senior Minister. Under the first subheading “(1) Decision Sought”, the Memorandum states as follows, “The Minister for Health, on behalf of the Minister for State with special responsibility for Disabilities and with the approval of the Minister for Public Expenditure and Reform, requests the Government to”.

(xii) Memorandum to Government - Example 2

153. In the second example, the title of the Memorandum is “Oifig an Aire Sláinte, Memorandum for the Information of the Government, Progress on Disability Services Transforming Lives programme” (underlining added). The date was given as “31/12/2019”. As in the previous example, this Memorandum emanates from the Office of the Minister for Health, then Minister Simon Harris. Beneath the first sub-heading “(1) Matter/Issue for Information”, the Memorandum stated as follows “The Minister for Health and the Minister of State for Disabilities request the Government to note progress on implementation of the Disability Reform agenda through the Transforming Lives programme (2014).”

(xiii) Memorandum to Government - Example 3

154. In the third example, the title of the Memorandum is “Oifig an Aire Sláinte, Memorandum for the Information of the Government, Establishment of a Commission of Investigation into the Care of Individuals with a Disability….” (Underlining added). The date was given as “21/07/2016”. As in the case of the previous examples, this was another example of Memorandum emanating from the Office of the Minister for Health, who again was Minister Simon Harris. Under the first sub-heading “(1) Matter/Issue for Information”, the Memorandum states as follows “The Minister for Health, on behalf of the Minister of State with special responsibility for Disabilities requests the Government to note the contents of the memorandum for information concerning the establishment of a Commission of Investigation on the care of individuals with a disability….”

(xiv) Memorandum to Government - Example 4

155. In the fourth example adduced in evidence, the title of the Memorandum is “Oifig an Aire Sláinte, Memorandum for the Government, Report on the Task Force on Personalised Budgets….” The date was given as “22/06/2018”. As in the previous examples the Memorandum is sponsored by the Office of the Minister for Health, Minister Simon Harris. Under the first sub-heading “(1) Decision Sought”, the Memorandum stated as follows, “The Minister for Health and the Minister of State with special responsibility for Disability Issues request the approval of Government to….”

(xv) Political influence vs legal influence

156. In terms of his evidence of blocking or reversing decisions, Mr. McGrath stated that what would happen is that a proposal may have been deferred at a meeting and then there may have been some further discussion outside of the meeting and at a later stage the proposal may reappear in a revised form which may have been agreed, or, on occasion it may not re-emerge again. Mr. McGrath accepted, as a matter of principle, that, if a vote was called at a meeting of the Government on issue with which he did not agree, Mr. Ross, as the member of the Government, would be the only one (as between the two of them) with an entitlement to vote on the issue and that legally there could in fact be no actual block. However, Mr. McGrath stated that, politically, the Taoiseach would not allow such circumstances to arise (given that it was a minority government reliant on a confidence and supply arrangement with Fianna Fáil, which was the majority party in opposition) but he accepted the proposition that as a Super Junior Minister, he had “no legal power” to block any Government decision, rather it was the exercise of “political leverage” (Transcript Day 2, p. 106. Para. 422-433).

157. Mr. McGrath stated that he did not express any concerns about the legality of his position as a Super Junior Minister between 2016 and 2020 and expressed the political view that as the population and consequent amount of political work increased, the limit on the members of Government in the Constitution should be “tidied up” and increased from 15 to 18. This was because, in his view, as a Super Junior Minister, “he was doing the same job” as a member/Minister of the Government and because the political context now was that small groups would always be holding the balance of power, and comprising part of the Government. In that context they would, therefore, seek to head up two or three ministries (Departments of State) as part of a Government arrangement.

(D) Evidence of Professor Diarmaid Ferriter

158. Professor Ferriter is a professor of Modern Irish History at University College Dublin. He provided an expert historical analysis on behalf of Deputy Murphy on the evolution of cabinet confidentiality and collective responsibility in Irish governments, particularly in the context of constitutional development from the early 1920s to the late 20th century. Tracing the history of cabinet unity and confidentiality he referenced materials showing that cabinet confidentiality was a concern even before the Irish Free State was founded. In this regard, he specifically referenced criticisms by Éamon de Valera of fellow Sinn Féin Cabinet members for breaching collective responsibility during the Anglo-Irish Treaty debates (1921–22). During this period, decision making was divided and contentious and unity was fragile.

159. Professor Ferriter confirmed that the Civil War (1922–23) intensified the need for centralised executive control. During this period Cabinet decisions were declared unanimous and confidential. Richard Mulcahy’s unauthorised peace talks with Mr. de Valera were controversial as they were seen as a breach of collective responsibility. The civil war led to a “relentless process of centralisation”. The Dáil was prorogued for over two months and the Cabinet took direct control of the army and police. Regaining civilian control over the military became a priority after the war, culminating in Mr. Mulcahy’s resignation in 1924 to prevent an army mutiny.

160. In his statement of evidence, Professor Ferriter referred to the “extern ministers experiment” whereby Article 55 of the 1922 Constitution of the Irish Free State introduced extern ministers — non-Cabinet experts responsible to the Dáil. He said the experiment was inspired by Swiss governance and was aimed at reducing party politics and promoting deliberative democracy. In practice, however, extern ministers were party politicians, not independent experts, and the system failed to function as intended due to the need for strong, unified executive control. In the aftermath of the Civil War there was a heightened need for centralisation and dissent within Cabinet was suppressed or kept private.

161. On Professor Ferriter’s evidence, by 1927 a shift toward Cabinet centralisation became apparent as constitutional amendments expanded Cabinet size and effectively abolished extern ministries. Instead, arising from the Constitution (Amendment No. 5) Act 1927, (which amended the Constitution by increasing the maximum membership of the executive council from seven to twelve members) (Dr. Ferriter’s witness statement – p. 8, para. 17), the Government moved toward strong executive authority, under W.T. Cosgrave and later Éamon de Valera. The power of the People to initiate laws or constitutional amendment under Article

48 of the 1922 Constitution was deleted by the Constitution (Amendment No. 10) Act 1928.

162. Professor Ferriter saw Mr. de Valera’s influence in the post-civil war years as placing emphasis on cabinet secrecy and unity, factors which in turn impacted on the drafting of the 1937 Constitution. Professor Ferriter considered that the experience of the early years of the State and the Civil War caused a culture of executive secrecy and centralised control to become entrenched. In consequence, Mr. de Valera resisted dispersal of power and rejected proposals for national government or decentralisation. Political figures like Seán MacEntee and institutions like the Supreme Court reinforced the importance of cabinet confidentiality. The importance of cabinet confidentiality was formalised by the 1997 constitutional amendment (Article 28.4.3) by allowing exceptions only by order of the High Court in certain specified and limited circumstances.

163. The gist of Professor Ferriter’s evidence was that the trauma of the Civil War shaped a political culture of secrecy, caution, and centralised authority which gave heightened importance to cabinet confidentiality. This legacy influenced constitutional design, cabinet operations, and attitudes toward dissent and transparency for decades. Professor Ferriter contrasted historical norms with more recent claims that non-Cabinet junior ministers have access to Cabinet papers and meet weekly with the Taoiseach which he claimed suggested a significant departure from established constitutional practice.

164. In his oral evidence and by way of supplement to his written statement, Professor Ferriter reiterated the link between collective responsibility and cabinet confidentiality with historical factors and the foundation of the State. He stated that there was a serious concern about cabinet confidentiality, even before the creation of the State, and the Sinn Féin underground Government during the war of independence period were concerned about its proceedings being confidential. This concern became even more important arising from the signing of the Anglo-Irish Treaty in December 1921 and the resulting Cabinet split. The particular concern was to prevent:

“…the disunity within Sinn Féin from proving to be an existential threat to the State…having a tightly controlled Government was a major part of that and trying to recover from the divisions arising from the Treaty…” (Transcript Day 2, p. 6, para. 7).

He stressed that:

“It is clear from the Cabinet minutes in 1922 that the notion of collective responsibility becomes particularly pronounced arising from the civil war and the perceived need to maintain unity in the face of subversion.” (Transcript Day 2, p. 6, para. 7)

165. He then referred to the minutes of two specific meetings taken from the National Archives of Ireland observing that the minutes do not provide huge elaboration, they record the decisions but often not the discussions around them. With regard to the minutes of a meeting of the provisional Government on 25th August 1922, a copy of which was tendered in evidence, the record provided: “All decisions of Cabinet should be regarded as unanimous and should be treated as strictly confidential” (Transcript Day 2, p. 7, para. 8).

166. Professor Ferriter contextualised this decision of 25th August 1922 with reference to the huge upheaval and one of the great public tragedies of the Civil War, resulting from the killing of Michael Collins a few days previously. He stated that the Government was in turmoil and placed:

“a premium on the idea that they can withstand and endure this crisis but that central to that has to be the idea that they stick together, that their proceedings need to be treated [with] strict[ly] confidentiality and that they need to present a united front and that they cannot afford to have any in-fighting within the Cabinet.”

167. Professor Ferriter then referred to the events of September 1922 and the minutes of a meeting on 26th September of that year, a copy of which was also tendered in evidence. At that time the Minister for Defence in the provisional Government, Mr. Mulcahy, who also held the post of Commander in Chief of the National Army, secretly met Mr. de Valera for what proved to be a fruitless exchange to explore the possibility of peace. Professor Ferriter explained that Mulcahy's colleagues were furious with him for attending the meeting regarding it as a breach of collective responsibility. Against this background, at the end of the meeting of 26th September 1922 the following is recorded:

“Arising out of a discussion on negotiations for peace with the irregulars with which certain Ministers have been associated without the sanction of the Government, the necessity for strict adherence to the principle of Cabinet confidentiality was emphasised” (Transcript Day 2, p. 10).

168. In view of the “absolute premium” placed on cabinet unity during this crisis period, Professor Ferriter noted that the meeting with Mr. de Valera was regarded as a particular “betrayal” and posited that decisions that were made and actions that were undertaken in 1922 were to sow seeds of distrust that lingered.

169. Linking the drafting of the 1937 Constitution to this historical context, in his oral evidence, Professor Ferriter observed that the 1937 Constitution should be understood in the light of the values that have been built up since the foundation of the State namely, the attitudes to governance and to rule and the lessons that have been learned in 1922 but also the idea of sovereignty. This commitment to the value of sovereignty is evidenced by the fact that in the period leading to the 1937 Constitution objectionable parts of the Treaty were removed, notably the oath of allegiance and de Valera committed to abolishing the office of Governor General, the representative of the Crown in Ireland. By 1937 he wanted to unveil a Constitution that is “a Constitution for a republic in all but name”, not so named because it might be regarded as “an impediment to eventual unity, to break ties completely with the commonwealth at that point”.

170. Referring to Mr. de Valera’s papers which are held in the UCD Archives, Professor Ferriter stated that in the opening articles of the Constitution, Mr. de Valera was seeking to achieve the primacy of the sovereignty of the People. Professor Ferriter observed that in his handwritten notes Mr. de Valera referred:

“…to the rule of the people and the sovereignty of the people as having to tower above all other authority and he also refers in his drafts to the people being the ultimate court when it comes to deciding issues of political and national concern. Versions of those words of course find their way into what becomes the official Constitution of 1937. And again just to say briefly, I mean what obviously coloured his thinking in relation to that as well was the idea of Irish control and the State controlling domestic internal State matters; that whatever about retaining a slender link with the commonwealth in relation to the appointment of external representatives, that ultimately this would be about asserting that there would be no more role for any external agents and obviously the Crown in Irish affairs. So that idea of popular sovereignty or the people's sovereignty is very much emphasised. And of course that is a central republican tenet.” (Transcript Day 2, p. 22-23, para. 25)

171. Asked by Mr Rogers SC, for Deputy Murphy, about the size of Mr. de Valera’s Governments, initially 10 ministers, then 12, Professor Ferriter testified that the ceiling of 15 was not reached under the Fianna Fáil Governments in the 1930s and the 1940s. He thought part of the reason of that was “around managing the Cabinet and being able to keep control of a tight Cabinet”.

172. Under cross-examination by Ms. Donnelly SC, on behalf of the Defendants, Professor Ferriter was referred to the role of Kevin O’Higgins, amongst others, in the second Dáil attending Cabinet meetings even though not a Minister and to the evidence of Professor O’Halpin (an expert called on behalf of the Defendants) in this regard. He did not disagree with Professor O’Halpin’s evidence, readily accepting that it was not in dispute that: “…the engine room of the Cabinet is populated by people other than Cabinet members”.

173. Professor Ferriter acknowledged without demur the attendance in the early years (including in the 1920s, of Fionán Lynch, Joseph McGrath, Patrick Hogan as external ministers, Joseph Brennan as Assistant Secretary and later Secretary of the of the Ministry of Finance as well as Éamonn Ó Dúgáin as the first Parliamentary Secretary to the Executive Council and the Chief Whip) and later (specifically, Jack Lynch in 1951 as Parliamentary Secretary) of non- Cabinet members at Cabinet meetings. Professor Ferriter confirmed that there was no doubt about the attendance at Cabinet meetings over the years of civil servants and public servants to address specific issues.

(E) Evidence of John Callinan

174. The primary witness of fact for the Defendants in the proceedings was Mr. John Callinan. His evidence in this case was largely in line with his evidence on affidavit in the Daly proceedings.

175. Mr. Callinan is Secretary General to the Government (also referred to in this judgment as the “Cabinet Secretary”) and Secretary General of the Department of the Taoiseach. Mr. Callinan adopted his witness statement as his direct evidence. It addressed aspects of the operation of the Government including meetings of the Government and responded to matters addressed in the witness statements of Paul Murphy and Shane Ross.

176. Mr. Callinan was appointed by Government decision of 5th April 2022 as Secretary General to the Government and Secretary General of the Department of the Taoiseach, with effect from 3rd May 2022. His immediate position before his appointment as Cabinet Secretary was as Second Secretary General at the Department of the Taoiseach. He stated that he was extremely familiar with the custom and practice with respect to the operation of the Government, including meetings of the Government, in the context of his work in the Department of the Taoiseach at very senior levels for almost 18 years.

177. He stated that the role of Secretary General to the Government is a historic role that involves acting, in effect, as Cabinet Secretary. Mr. Callinan stated that the role of Cabinet Secretary has customarily included, in particular, supporting the Taoiseach, as head of the Government, and the other members of the Government, in the organisation and conduct of meetings of the Government in accordance with the requirements of the Constitution and the law and the procedures agreed by the Government for its meetings.

178. The Cabinet Secretary is responsible for the proper organisation and preparation of the Government’s meetings, including the preparation of the agenda for meetings and arranging for the circulation of relevant documents to the members of the Government and the submission of matters to the Government for its information or decision by way of Memoranda. He is also responsible for supporting the Taoiseach in ensuring the effective and timely conduct of the Government’s meetings, providing the Taoiseach with relevant advice on matters that may arise during a Government meeting, taking a minute of its proceedings, and recording and disseminating the Government’s decisions. He also has authority by his signature to authenticate Government decisions for the Courts.

179. Mr. Callinan stated that the Cabinet Secretary has a range of other responsibilities relating to the Government’s functions, carried out by the Government Secretariat in the Department of the Taoiseach, including the transmission by the Taoiseach of Bills passed by the Oireachtas to the President for his or her signature; the preparation and transmission of documents which related to the formation of a new Government; the administration of arrangements for the appointment of judges; and the signing by the President of commissions for officers of the Defence Forces.

180. Mr. Callinan’s statement addressed the process involved in the nomination and appointment of the Taoiseach and members of the Government, including the Tánaiste and the Attorney General, under the Constitution and the custom and practice which applies in relation to these matters both in the Dáil and at Áras an Uachtaráin on the day of their respective nomination, election, approval and appointment and save for the one item referred to in Mr. Ross’ evidence, namely, Mr. Ross’ evidence in relation to the meetings on a Monday night between the Taoiseach, the Tánaiste and the leader of the Regional Group at para. 2, Mr. Callinan’s evidence was not controverted by Deputy Murphy, or the witnesses of fact and experts relied upon by him.

181. Mr. Callinan’s statement also set out the process involved in the appointment (and termination of appointment) of Ministers of State by the Government at the nomination of the Taoiseach and the custom and practice which applies in relation to the identification of those deputies, including the Chief Whip, who are nominated as Ministers of State, regularly attending meetings of the Government, the proposed Attorney General, when the Taoiseach speaks in the Dáil nominating the proposed members of the Government and his invitation to those persons to travel to Áras an Uachtaráin for the appointment of the members of the Government and the Attorney General and to attend the first meeting of the new Government at which he nominates them for appointment by the Government to be Ministers of State. No Dáil vote is required in relation to the persons proposed or nominated to be Ministers of State. They are appointed by the Government at its meeting on the nomination of the Taoiseach (Mr Callinan’s witness statement, p. 5, para. 23)

(i) Memorandum/Memoranda

182. Mr. Callinan also addressed the use of Memoranda (also referred to in his evidence as “Memorandums”) at meetings of the Government and the electronic computerised system of eCabinet.

183. Mr. Callinan stated that given the constitutional requirement in Article 28.4.2° - namely that the Government meets and acts as a collective authority and is collectively responsible for the Departments of State administered by its members — consultation among members of the Government in respect of proposals to be considered by the Government, by way of the circulation of, and the making of observations on, draft Memoranda prior to their submission to the Government, is an essential feature of the arrangements for the Government’s meetings. Mr. Callinan stated that Memoranda for the Government are drafted by civil servants in Government Departments on behalf of their Ministers, in accordance with the requirements of the Cabinet Handbook. In very many cases, the process of drafting a Memorandum will require consultation with other Departments and, on occasions, with the Office of the Attorney General. This will be the case, for example, where there are Exchequer implications to a proposal, where another Minister has a functional interest in the matter being proposed or where legislation is being proposed.

184. Mr. Callinan distinguished between two types of Memoranda: first, a Memorandum for Information, which is submitted for the Government’s agenda once it has been approved by the sponsoring Minister. Prior consultation with other members of the Government is not required as decisions are not sought from the Government by way of Memoranda for Information; second, a Memorandum seeking a Decision from the Government, which will be drafted by civil servants in the sponsoring Minister’s Department. Once a draft has been approved by that Minister, the draft Memorandum is then circulated to other relevant Departments in order to seek the observations of other members of the Government on the proposal. Such draft Memoranda may also be circulated to the Office of the Attorney General for such input as may be required on the law or on legal issues.

185. Mr Callinan stated that any observations on the draft Memorandum which may be returned by members of the Government are included in the text of the Memorandum and are addressed by the sponsoring Minister in the final version of the Memorandum before it is submitted to the Government meeting. In this way, the views of members of the Government, and the responses to those views, are made clear to the Government to improve the quality of its

decision-making.

186. Mr. Callinan stated that a draft Memorandum was not formally circulated to the relevant Ministers of State, or to any Ministers of State. Ministers of State, irrespective of whether they regularly attend meetings of Government, have no entitlement to be consulted on draft Memoranda and no power to make observations on draft Memoranda. This reflected the fact that Ministers of State had no role in formal decision-making by the Government.

187. Mr. Callinan stated that in the ordinary course, all final versions of Memoranda are circulated to all members of the Government in advance of the Government’s meetings. Final versions of Memoranda are also circulated to the relevant Ministers of State, and to the other persons who regularly attend meetings of the Government, for their information, so that they can be considered in advance of the Government’s meetings.

188. He stated that the participation of the relevant Ministers of State and other persons who regularly attend meetings of the Government in discussions at Government’s meetings is a matter for the Taoiseach to regulate.

189. Mr. Callinan stated that the detailed arrangements for the process of consultation are set out in the Cabinet Handbook. Exceptions to that process of consultation may arise where, by reason of the urgency and/or sensitivity of the subject matter of a Memorandum, the Taoiseach may permit a member of Government to submit a Memorandum to Government without observing the process set out above. The Government Secretariat in the Department of the Taoiseach, under the superintendence of the Secretary General to the Government, screens the draft Memoranda to ensure they comply with the requirements of the Cabinet Handbook. The Government Secretariat then compiles the Agenda for Government meetings.

(ii) eCabinet

190. Mr. Callinan also explained the function of eCabinet, which is an IT system for Departments to draft Memoranda, to circulate them for observations to other Members of the Government (and, if advice is required, the Attorney General), and to record the observations provided and the responses to them. The eCabinet system is how Memoranda are then submitted to the Government Secretariat for inclusion on the Government Agenda.

191. Ministers of State (including Super Junior Ministers) do not have access to eCabinet. Also, in terms of the dissemination of Government decisions, Mr. Callinan stated in his witness statement that only the members of the Government may submit and decide upon proposals to the Government. The Government's decisions are issued on eCabinet by the Government Secretariat to the sponsoring Ministers and other relevant Ministers. He referred to paragraph

6.1 (p. 53) of the Cabinet Handbook which states that “Government decisions are notified by the Secretary General to the Government to the Private Secretaries to concerned Ministers. It is the responsibility of each Department to have procedures in place for dissemination of decisions to the appropriate officials in that Department.”

(iii) Meetings of the Government

192. In his oral evidence, Mr. Callinan confirmed that Government meetings normally take place on a Tuesday morning when the Dáil is in session and on a Wednesday when the Dáil is not in session.

193. Mr. Callinan confirmed his understanding of the practice both before and since he became Secretary General to the Government and Secretary General of the Department of the Taoiseach, that the practice of Ministers of State attending meetings of the Government arose by oral agreement with the Taoiseach in the context of a political agreement regarding the formation of a Government by the parties to that agreement. The decision to have one or more relevant Ministers of State is a political decision, ultimately resting with the Taoiseach, as part of the Government formation process.

194. The management of Government meetings and of the agenda of Government meetings is predicated on an iterative process involving, as between the members of the Government (and their departmental officials) the preparation of draft Memoranda, receipt of observations (and if necessary, advice from the Attorney General) and the finalisation of the Memoranda for Government. Each item that ultimately appears on the agenda of a Government meeting can only be initiated and proposed by the relevant member/Minister of the Government who is in charge of, or who heads, one of the Departments of State. This is achieved via eCabinet which is a secure, computerised, electronic system that manages the submission of Memoranda to Government for consideration at its meeting.

195. Mr. Callinan explained that the system of eCabinet is designed in such a way that only each Senior Minister in charge of a department (i.e. one of the 15 members of Government) can submit a Memorandum through that the computerised electronic system.

196. Accordingly, through eCabinet, a Memorandum for Information can be submitted without the need to seek observations from other Ministers and a Memorandum for Decision, dealing, for example, with a substantive policy matter or a piece of legislation, would ordinarily have to be circulated to, at a minimum a certain number of relevant members/Ministers of the Government – and in some cases to all of the 15 members/Ministers of the Government (including the Taoiseach) – to afford them the opportunity to provide observations. This entire process is done through the secure electronic system of eCabinet. Mr. Callinan confirmed that this system of circulation for the seeking of observations is limited to the 15 members/Ministers of the Government (including the Taoiseach) and does not include Super Junior Ministers or other Ministers of State.

197. Mr. Callinan stated that if a relevant Minister of State, or any other Minister of State, wishes to input observations into a Government memorandum, that can only be done in discussion with the member/Minister of Government (that is the Senior Minister) and it would have to be done in that way in the name of the Senior Minister. The Minister of State cannot do it in his or her own name.

198. Mr. Callinan stated that the technically correct term is “to submit” or “the submission” of a Memorandum to Government (rather than “to bring” or “bringing” a Memorandum to Government). Except in very rare or urgent occasions, all Memoranda for Government are processed through the electronic system of eCabinet. Mr. Callinan observed that no one “turn[s] up at Cabinet with sheaves of papers under their arm to hand out” (Transcript Day 2, p. 141, para. 604). Mr. Callinan confirmed that a Minister of State cannot submit on eCabinet a Memorandum for Government and that confirmed that, technically, the electronic system of eCabinet does not permit a Minister of State to submit a Memorandum on eCabinet.

199. He stated that, as a courtesy, in advance of the Government meeting, the relevant Ministers of State, are given copies of the Memoranda which includes the observations, and the responses to the observations, for the purpose of informing themselves. This is done only after these Memoranda are finalised and cleared for inclusion on the agenda of the Government meeting. The finalised copy of the Memorandum include the observations submitted by the various members/Ministers of the Government and the responses to those observations, which may have resulted in the substance of the initial proposal in the Memorandum having been modified between the point at which it was circulated for observations and the final version, if some of the observations made were relevant to the decision being sought or the way in which it was being presented.

200. Mr. Callinan has been Cabinet Secretary since 3rd May 2022 and he has attended meetings of the Government during this period. His predecessor, Mr. Martin Fraser, was the Secretary to the Government during the time Mr. McGrath and Mr. Ross attended Government meetings. Mr. Callinan’s evidence was that in his experience, Ministers of State did not orally introduce Memoranda at Government meetings. He states (at p. 15, para. 76 of his witness statement):

“Memorandums can be submitted only by members of Government, and cannot be submitted by Ministers of State who regularly attend meetings of the Government, or any Ministers of State.”

201. Mr. Callinan’s evidence was that only members/Ministers of Government could bring Memoranda to Government. Ministers of State, irrespective of whether they regularly attend meetings of Government or otherwise, have no entitlement to bring Memoranda to Government meetings and there is no facility for them to do so, although occasionally where the Memorandum concerned an area of policy responsibility that had been delegated to them, their interest in the memorandum sought may also be noted in the Memorandum. The member/Minister of Government, as head of the Department of State from whose office the Memorandum has been brought and sponsored, introduces the item at the meeting of the Government. Mr. Callinan stated that this is also reflected in the note that the Cabinet Secretariat, which he headed, prepared for the Taoiseach and advises the Taoiseach in respect of each item the member/Minister of Government was introducing.

202. Mr. Callinan stated that it would be unremarkable if, after the member/Minister of Government had introduced an item at the meeting of the Government, that Minister handed over the item to the Minister of State who was associated with it, if they were in attendance.

203. Mr. Callinan stated that each of the four Memoranda which were referred to in the evidence of Mr. McGrath were entirely consistent with his understanding, and experience, of how the process works. Memoranda can come in the name of a single Minister, or depending on the subject, might be brought by two members of the Government. On occasion, sometimes a Memorandum will also include mention of a Minister of State and that Minister of State may, or may not, be a Minister attending a meeting of the Government. Accordingly, where a Minister of State has a particular delegated function which may be a prominent feature of the Memorandum, it would not be unusual for the Memorandum to reference that as well.

204. Mr. Callinan placed emphasis on the paramount role of Memoranda in the entire process. For example, in answer to a suggestion from Mr. Rogers SC, for Deputy Murphy, that he (Mr. Callinan) was placing too much emphasis on the importance of the Memoranda when the focus was on the actual constitution of the personnel at the meeting, Mr. Callinan stated that “…the meeting would not amount to much if there were no Memoranda for it to consider…” and that “…the decision-making at Government is the final stage of the process and the decisions are in the main taken by consensus…” (Transcript Day 2, p. 163, paras. 710 and 711).

205. On Mr. Callinan’s evidence, the governmental process – including everything from earlystage discussion, discussion at Cabinet Committees, the formal preparation of a Memorandum, the circulation of the Memorandum for observations – is geared towards achieving maximum consensus before the actual meeting of the Government takes place. The relevant Ministers of State participate in the discussions at those meetings and generally a consensual approach is adopted to the discussions and the decision-making process by the members of the Government at meetings of the Government.

(iv) Attendance record at meetings of the Government

206. In terms of the attendance record of the meetings of the Government, Mr. Callinan confirmed that he brings a blank “blue slip” with him to each meeting of the Government and it is his function to formally record who is, and who is not, present at the meeting by indicating that (with a tick or an “x”) beside each attendee’s name. Mr. Callinan confirmed that there was distinction in the slip between the member/Ministers of Government, on the one hand, and Ministers of State and other attendees, on the other hand. The blue slip is structured in a way that records the presence of the members of the Government and then records the attendance of other attendees, including, for example, the Secretary General (Mr. Callinan), or in his absence, his deputy, the Assistant Secretary of the Cabinet Secretariat, the Attorney General, and then one of the four relevant Ministers of State.

(v) Seating arrangement at a meeting of the Government

207. Mr. Callinan stated that the seating arrangement at the Cabinet table during a meeting of the Government is organised in terms of seniority. At the formation of each Government there is a seating allocation when a meeting of the Government takes place. The table itself (in the Council Chamber) is a large oval table, the Taoiseach sits in the middle on one side and the Tánaiste sits in the middle directly opposite the Taoiseach. The seating allocation then generally follows the seniority of the members of the Government with the next most Senior Minister/member of the Government, the Minister for Finance, sitting next to the Tánaiste and the Minister for Public Expenditure sitting on the other side of the Tánaiste. Each of the members of the Government then sit, in a circular format moving out from the Tánaiste following a convention of seniority, with the Chief Whip sitting to the right of the Taoiseach, Mr. Callinan sitting to the left of the Taoiseach and the Attorney General sitting to Mr. Callinan’s immediate left. Any variation to this seating arrangement would be by agreement with the Taoiseach.

(vi) Consensual approach

208. Mr. Callinan again emphasised that the entire process – including everything from the earlystage discussion, discussion at Cabinet Committees, the formal preparation of Memoranda, its circulation for observations, and the finalisation of the Memoranda – is geared towards achieving maximum consensus before the actual meeting of the Government takes place. The relevant Ministers of State participate in the discussion at those meetings. A consensual approach is adopted to the discussions and to the decision-making process by the members of Government at those meetings who retain the right to put matters to a vote of the 15 members of Government when making their decision.

209. Mr. Callinan confirmed his understanding that the Taoiseach’s reference in his speech to the Dáil on 23rd January 2025 to having a “full Minister for Disability” was a reference to the appointment of Deputy Norma Foley because of the focus which the incoming Government was putting on disability with the appointment of a full Minister (member of Government) with a lead responsibility, together with the establishment of a specific Cabinet Committee, and a special unit in the Department of the Taoiseach, dealing with disability issues and that a decision had been taken to take immigration and integration functions out of what previously had been the Department of Children, Equality, Disability, Integration and Youth and transfer those matters to the Department of Justice and which left the departmental focus on the area of Children and Disability.

(vii) Cabinet Committees

210. Mr. Callinan stated that the meetings of Cabinet Committees are administrative or preparatory meetings facilitating interdepartmental or interparty discussion. They are not meetings of the Government, and no Government decision is taken at these meetings unless it was expressly authorised or delegated to do so by a prior decision of the Government. Mr. Callinan did not recall during his time as Secretary General to the Government and Secretary General of the Department of the Taoiseach any such delegated authority from the Government to a Cabinet Committee.

211. Mr. Callinan explained that the “leaders’ meeting” is a reference to the “Cabinet Committee on Government Coordination” which is one of the 12 Cabinet Committees established by the Government (Transcript Day 2, p. 135, para. 577). Mr. Callinan stated that he attended meetings of the Cabinet Committee on Government Coordination. Its function was set out in the Programme for Government and then, subsequently, in the terms of reference in the Government decision establishing it. Its purpose is to review the operation of the other Cabinet committees and to review the agenda of a meeting of the Government and to serve as a forum for political discussion of political matters within the Government. No decisions of the Government are made at the meeting of the Cabinet Committee on Government Coordination.

212. Mr. Callinan stated that each leader of each of the three political components of the Government attend the Cabinet Committee on Government Coordination. That Cabinet Committee has a broader remit than the other Cabinet Committees which are focused on specific areas of policy. The usual attendees at the Cabinet Committee on Government Coordination are the Taoiseach, the Tánaiste, Minister of State Canney, the special advisors to each of the three of them and Mr. Callinan. Depending on what might be on the agenda, from time to time, one or more other Ministers may attend, including senior officials and advisors.

213. Mr. Callinan stated that the attendance of Minister of State Canney at the Cabinet Committee on Government Coordination was an important role because he was the leader of the independent group within the Government formation and one of the express purposes of the Cabinet Committee on Government Coordination is to manage political matters between the different components of the Government. He stated that in the context of seeking consensus generally, all Cabinet Committees, including the Cabinet Committee on Government Coordination, are important. In this context, the Cabinet Committee on Government Coordination may sometimes refer issues back to other Cabinet Committees for further discussion. In his statement he noted that the Cabinet Committee on Government Coordination might “review” the agenda for the Government meeting but it does not “clear the agenda”. It is a matter for the Taoiseach to “clear” or sign off on the agenda. He confirmed that the Cabinet Committee on Government Coordination does not have any decision-making functions in relation to the agenda for Government meetings.

214. Mr. Callinan stated that each Cabinet Committee has a secretary, usually an Assistant Secretary General in the Department of the Taoiseach (Transcript Day 2, p. 137, para. 587). Mr. Callinan stated that he generally tried to attend most Cabinet Committees but his schedule meant that this was not always possible. He stated that he always attended the Cabinet Committee on Government Coordination.

215. Generally, Cabinet Committees are attended by members/Ministers of the Government and, in certain instances, and from time to time, Ministers of State are members of Cabinet Committees, irrespective of whether or not they attend meetings of the Government.

216. He explained that the Cabinet Handbook provides that Cabinet Committees can consist of a combination of members/Ministers of the Government, Ministers of State, and may include the Attorney General. He instanced the examples of Minister of State John Cummins, with responsibility for planning (who is not one of the relevant Ministers of State) and who attends the Cabinet Committee dealing with housing, and similarly, Minister of State Thomas Byrne, who is the Minister of State for European Affairs, and who attends the Cabinet Committee dealing with EU affairs.

(viii) Documents

217. Mr. Callinan formally recorded his belief as to the authenticity of certain of the documents which were referred to in the evidence of Mr. Ross and Mr. McGrath, as these were not attached to Mr. Callinan’s statement. These included the examples of the seating charts of meetings for the 30th and 35th Governments. In the context of the formation of the Government in 2016, Mr. Callinan also confirmed that the warrant of appointment of the Taoiseach, the warrant of appointment of the other members of Government, the resolution passed by Dáil Éireann nominating the members of Government, the Government decision of 6th May 2016 appointing the Ministers of State at that time, the photograph taken in Áras an Uachtaráin of the new Government, including the Ministers of State sitting at Government, who were appointed by the Government on the nomination of the Taoiseach at that meeting.

218. In a similar vein, Mr. Callinan formally recorded his belief as to the authenticity of those documents in relation to the formation of Government in 2017 which were referred to in the evidence of Mr. Ross and Mr. McGrath, and which had not been attached to Mr. Callinan’s statement. These also included the covering letters from Mr. O’Leary, who was then the Secretary General to the President, the warrant appointing Minister Varadkar as Taoiseach on 14th June 2017, a copy of the warrant of the other 14 Ministers in the departments to which they are assigned, the letter from the Clerk of the Dáil, enclosing a copy of the resolution signed by the Ceann Comhairle nominating the 14 members of Government, and the Government decision dated 14th June 2017 appointing the Ministers of State.

219. In his evidence, Mr. Callinan also stated his view that the position of the Minister of State and its distinction from that of a member of Government (Senior Minister) was reflected in, and acknowledged by, legislation. He referred in this regard to the 1977 Act which originally provided for the appointment of up to 10 Ministers of State by the Government on the nomination of the Taoiseach. The number was subsequently increased by various amendments: in 1980 it was increased to 15; in 1995 it was increased to 17; in 2007 it was increased to 20; and, in 2025, it was increased to 23 by the Ministers and Secretaries and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 2025, which amended the 1977 Act.

220. Mr. Callinan also referred to the delegation of functions provided for under s. 2 of the 1977 Act whereby Ministers of State may be delegated functions by the Government, on the proposal of the relevant Minister. The legislation provides that these delegated powers are exercised in the Minister of State’s own name, are subject to the superintendence and control of the relevant Minister and can be revoked at any time. The delegation power does not operate to remove responsibility from the Minister of Government, who remains accountable to the Dáil.

221. In addition, he referred to the 1998 Act. Section 3A of the 1998 Act specifically recognizes “Ministers of State who regularly attend meetings of the Government.” It allows for the payment of annual allowances to up to four such Ministers (increased from three by the 2025 Act) and the appointment of up to two special advisers for each of these Ministers (compared to one for other Ministers of State).

222. Mr. Callinan referred in his evidence to the terms of the Public Service Management Act 1997. While this legislation primarily focused on Secretaries General, it also indirectly relates to the administrative structures within which Ministers of State operate.

223. Finally, Mr. Callinan noted that certain statutory instruments (e.g. S.I. No. 332/2012 and S.I. No. 527/2011) provide for authorised vehicles for relevant Ministers of State, based on security assessments.

224. In referring to the statutory rather than constitutional authority of Ministers for State (contrasting with Ministers for Government), Mr. Callinan stressed that Ministers of State are not appointed by the President, do not receive seals of office, and are not members of the Government under the Constitution and their powers are statutory.

(F) Evidence of Professor Eunan O’Halpin

225. Professor O’Halpin is a retired Professor of Contemporary Irish History (2000 to 2020) at Trinity College Dublin. He provided a witness statement to the Court on behalf of the Defendants and was tendered for cross-examination on his evidence on 10th July 2025.

226. In his statement Professor O’Halpin provided a historical and constitutional justification, from official records, for the long-standing practice of allowing non-Cabinet individuals to attend Cabinet meetings. His evidence was to the effect that since 1919, various non-Cabinet figures — including Assistant Ministers, Parliamentary Secretaries, Chief Whips, and the Attorney General — have routinely attended Cabinet meetings. These practices were consistent across governments, including revolutionary, Free State, and post-1937 Governments. Such attendance did not confer voting rights but often involved active participation.

227. As far the conventions of cabinet confidentiality and collective responsibility are concerned, he sought to demonstrate that these principles have been consistently upheld despite the presence of non-Cabinet attendees. His evidence also addressed the evolution of roles confirming that the Chief Whip has traditionally attended Cabinet meetings, evolving from Parliamentary Secretary to Minister of State. The Attorney General, though not a member of the Government under Article 30.4 of the Constitution, has regularly attended and influenced discussions at meetings.

228. His evidence addressed constitutional innovations from 1922 and the British influence on Irish Government practices.

229. He highlighted, in particular, the innovation under the 1922 Constitution whereby “External Ministers” (non-Cabinet Ministers), were intended to be apolitical technocrats, were invited to discharge ministerial roles on the basis of individual accountability to the Dáil, without being members of the Executive Council (Articles 55 and 56 of the 1922 Constitution), noting that, in practice, these external ministers were experienced politicians and were regularly in attendance at Cabinet meetings. He reported that the provision for external ministers was effectively abandoned by 1927.

230. As for British influence, Professor O’Halpin’s evidence was to the effect that Irish Cabinet practices were heavily influenced by British models, especially post-World War I reforms under Lloyd George. He referred to the fact that British precedent also allowed nonparliamentarians to serve as Ministers and to attend Cabinet.

231. Professor O’Halpin also addressed the Ministers and Secretaries Act 1924, observing that it provided for centralised administration and enhanced ministerial accountability to the legislature, replacing fragmented governance under the Union with a more coherent system. His evidence further identified modern developments whereby special advisers and civil servants continued to brief Cabinet and participate in committees.

232. A case meriting particular attention, he felt, was that of Professor James Dooge who was nominated as Minister for Foreign Affairs in 1981 before he was a member of either House of the Oireachtas (he was only appointed to Seanad Éireann on 21st October 1981, several months after his nomination as Minister). Despite not being a sitting member of the legislature, Professor Dooge was substantively involved in sensitive foreign policy matters, including direct discussions with British ministers and receiving confidential papers on issues such as Irish-American relations and the Maze hunger strikes.

233. Professor O’Halpin noted that this situation was criticised by opposition leaders, notably Deputy Charles Haughey, who argued that the appointment was unconstitutional and politically motivated. However, Taoiseach Garret FitzGerald defended the appointment, stating it was in line with the principle of collective responsibility and had been cleared by the Attorney General. Professor O’Halpin observed that while the practice might have been considered irregular at that time in Ireland, it was less unusual in British Cabinet practice, where non-parliamentary figures have held ministerial roles.

234. Professor O’Halpin further considered the role of Mr. Alexis Fitzgerald, appointed Special Adviser to the Cabinet, during Taoiseach Garret FitzGerald’s 1981–1982 Coalition Government. Mr. Alexis Fitzgerald was a solicitor and a former Senator and had previously served as an informal adviser to former Taoiseach John A. Costello. He resigned from the Oireachtas when his appointment as Special Adviser was imminent, meaning he was not a member of either House of Parliament at the time of his Cabinet attendance. The Taoiseach confirmed in the Dáil that as Special Adviser, Mr. Fitzgerald would be entitled to contribute at Cabinet meetings and would be invited to do so, asserting that this was in accordance with the principle of collective responsibility under the Constitution. It was further stated that the Attorney General had advised that the arrangement was constitutionally sound.

235. The appointment of Mr. Fitzgerald was challenged by the Opposition, both on constitutional grounds and as a potential case of political favouritism. The Taoiseach compared Mr. Fitzgerald’s attendance to that of the Attorney General, though Professor O’Halpin noted in his witness statement that this was “scarcely a persuasive analogy”. Professor O’Halpin acknowledged that the arrangement strengthened Fine Gael’s presence around the coalition Cabinet table. In addition, Professor O’Halpin instanced the Reynolds/Spring coalition (1993–94) which introduced Partnership Programme Managers, expanding advisory roles.

236. The essence of Professor O’Halpin’s evidence was that the presence of non-Government members at Cabinet meetings is long-standing, constitutionally sound and functionally necessary. In his view, these practices have not undermined cabinet confidentiality or collective responsibility but rather practices have adapted to reflect evolving governance needs. It was his opinion that the presence of such individuals does not inherently breach Article 28 (although that obviously is a matter for the Court to decide).

237. Under cross-examination by Mr. Rogers SC, for Deputy Murphy, Professor O’Halpin accepted the fundamental distinction between the Irish and British parliamentary regime, namely that under the Irish Constitution, power comes from the People, not the Crown. While agreeing that as a matter of history the 1937 Constitution adopted a completely different system for the authentication of the Government of the State, he argued that this was also the case in 1919 because Dáil Éireann in January 1919 asserted Irish sovereignty and appointed an Irish Government “however titular rather than effective it was initially”.

238. Professor O’Halpin was referred to Professor Ferriter’s evidence as to the importance of cabinet collective responsibility and cabinet confidentiality in the Irish context. While not disputing this evidence, he nonetheless maintained that collective responsibility and cabinet secrecy were inherited from the British system of Government rather than de novo concepts under the Irish constitutional regime. To support his point, he referred to the Government of Ireland Act 1920 in Northern Ireland as reflecting the same concerns and interests. He expressed the view that it is wrong to identify these concepts as uniquely republican concepts. In his view, from the inception of the State, the conception of democratising Ireland was to have a Government directly responsible to an Irish electorate, thereby centralising power.

(G) Evidence of Professor Eoin O’Malley

239. Professor O’Malley, Associate Professor of Politics at Dublin City University, specializing in Irish and executive politics, provided a witness statement on behalf of the Defendants. Although tendered for cross-examination, it was indicated on behalf of Deputy Murphy at the hearing that it was no longer intended to question him on his evidence.

240. Professor O’Malley confirmed in his witness statement that he had been asked to provide expert opinion on the growth in the size of government and ministries in Ireland and other jurisdictions and on comparative practices regarding junior ministers attending Government meetings. With reference to the growth in the size of government generally, he explained that the size and complexity of the State have expanded significantly over the past 60 years. His opinion that welfare demands, globalization, and technological regulation have driven this growth. He noted that the State’s administrative units (semi state bodies and agencies) have increased from 177 in 1960 to 369 in 2020. Government departments grew from 13 in 1960 to 23 in the 2020–23 period and Ministers of State (junior ministers) rose from 5 (parliamentary secretaries) in 1960 to 20 (ministers for state) in 2020.

241. In terms of international comparisons, Professor O’Malley’s evidence was that most western democracies have seen similar growth in ministerial numbers. Junior ministers are increasingly used across jurisdictions to manage complexity and coalition politics and while Cabinet sizes have grown, they have tended to stabilise at around 18–25 members. In distinction with other countries, however, Ireland has a constitutional cap of 15 Cabinet Ministers, whereas many countries have flexible statutory limits. In Ireland, Junior Ministers (Ministers of State) have become essential for managing increased policy complexity, for supporting coalition governance by offering additional roles to smaller parties and for acting as “watchdogs” within departments to uphold coalition agreements.

242. As for the role and attendance of Junior Ministers, he referred to variation in practices as between those different countries in which a role is given to Junior Ministers. In some countries (Austria, Germany, Portugal) Junior Ministers may attend Cabinet but do not vote, whereas in others (UK, Israel, Greece) Junior Ministers attend selectively and usually do not vote, while elsewhere (Canada, New Zealand), Junior Ministers often attend and are treated similarly to Senior Ministers.

243. The gravamen of Professor O’Malley’s unchallenged evidence was that the expansion of government structures reflects increased policy demands, coalition dynamics, and population growth and the State’s use of Junior Ministers is aligned with international trends. His research supported a view that Cabinet is increasingly a forum for political validation rather than detailed decision-making. Cabinet meetings in Ireland (and elsewhere) have shifted from being the main decision-making venue and real decisions often occur in smaller Cabinet committees or informal groups (he gave as examples the Economic Management Council and the Cabinet Committee on Covid-19).

(H) Evidence of Professor Andrew Blick

244. The Defendants further relied on the evidence of Professor Andrew Blick. Professor Blick is a Professor of Politics and Contemporary History at King’s College London. He prepared a statement which he adopted in his direct evidence and was tendered for cross-examination on behalf of Deputy Murphy on 10th July 2025.

245. As is apparent from his witness statement, Professor Blick was asked to provide an expert opinion on: UK Cabinet attendance practices pre-1922 (then referred to as “conference” rather than “Cabinet”); UK Cabinet attendance practices pre-1937 and finally, contemporary UK Cabinet attendance practices.

246. His evidence was that UK Cabinet practices pre-1922 demonstrate that Cabinet government in the UK was based largely on convention, not codified law. In practice, non-Cabinet attendees (e.g. civil servants, military personnel, diplomats, and Junior Ministers) were regularly present at Cabinet meetings and their attendance was based on expertise or relevance to the agenda. By way of example, he referred to T.E. Lawrence who attended a Cabinet meeting in April 1922. He confirmed that Cabinet minutes only began being formally recorded from 1916, with the establishment of the Cabinet Secretariat under Prime Minister David Lloyd George.

247. Addressing UK Cabinet practices pre-1937, Professor Blick observed that the practice of non- Cabinet members attending Cabinet continued under subsequent Prime Ministers during this period, although attendance was less extensive. By way of example, he referred to the attendance of the Attorney General and the Under-Secretary for Foreign Affairs at specific meetings in January 1937 (at one of which, the constitutional proposals for the Irish Free State were discussed).

248. As for contemporary practice, Professor Blick’s evidence was that non-Cabinet ministers now regularly attend Cabinet meetings and are listed as “also attends Cabinet”. It was noted that as of June 2025, five ministers fall into this category, including the Attorney General and Chief Whip.

249. In summary, Professor Blick confirmed that across all periods examined (pre-1922, pre-1937, and present), non-Cabinet members have attended Cabinet meetings. This practice is longstanding and consistent, though the nature and frequency of attendance have varied.

250. Professor Blick expanded slightly on his witness statement in oral evidence with regard to the position in Northern Ireland but when it was pointed out that this had not featured in his witness statement, counsel for the Defendants elected not to pursue the matter further.

251. Under cross-examination, Professor Blick confirmed that he was not an expert on the Irish Constitution and acknowledged that, unlike the UK, Ireland has a written Constitution but added that this does not mean that UK rules are not written down. He further observed that even in the case of a written Constitution, reliance may be placed on unwritten conventions and understandings to enable it to function. When asked if attendance at Cabinet in the UK is based on convention, he referred to the contemporary position and to the existence of a nonstatutory written Ministerial Code which sets out the rules in relation to the functions of the Government and Cabinet. He acknowledged that the rules could be changed with changes signed off by the Prime Minister in conjunction with the assistance of the Cabinet Secretary.

Accordingly, while the Ministerial Code lies in convention, in theory those rules could be changed (Transcript Day 2, p. 173, para. 745).

252. When asked about the office holder of the Office of the Attorney General who currently sits in the Cabinet, Professor Blick confirmed that the Attorney General in the UK is currently a Minister who sits in one or other Houses of Parliament. He acknowledged, however, that the practice of attendance by the Attorney General at meetings of Cabinet in the UK has varied and whilst attendance is now expected, in the past attendance it may have been required on specific occasions or for specific purposes rather than as a matter of course.

253. Professor Blick further confirmed that the Cabinet size stood at 22 in the UK in July 2025. Under cross-examination, he confirmed that the composition of the Cabinet is not put before Parliament. Instead, the Cabinet was simply nominated by the Prime Minister, with the Monarch making ministerial appointments. The formal legal position as explained in evidence by Professor Blick under cross-examination was that under the royal prerogative the Monarch appoints the Prime Minister and the Monarch appoints Ministers but the ministerial appointments are made on a recommendation from the Prime Minister. He acknowledged that the system in Ireland is different insofar as it requires Dáil approval for members of the Government nominated by the Taoiseach. He queried, however, whether this was a difference of form rather than substance as he was unaware how likely it would be that the Dáil would reject one of the Taoiseach’s nominees.

6. THE LEGAL FRAMEWORK

(A) General

254. Whilst the expert evidence demonstrates that there may be similar and varying practices as between, and within, democratic states at different times in history, these provide context but cannot properly be divorced from the applicable legal landscape to be properly understood. The findings of fact in this case are inextricably linked to the legal framework which applied, and still applies, to the business of Government and the management of Government functions in the context of the current (35th) Government in 2025 and the 30th and 31st Governments, respectively, in 2016 and 2017.

255. Accordingly, by way of summary, it is apposite at this juncture to briefly review the applicable legal architecture (which is discussed throughout this judgment and is fully addressed in our judgment in the Daly proceedings) before setting out our findings of fact. The central purpose of the following synopsis is to inform the findings of fact made on the evidence heard regarding the practice in relation to the attendance at, and participation in, Government meetings by the Super Junior Ministers which is sought to be impugned in these proceedings.

(B) Constitutional Framework

256. As more fully addressed in our judgment in the Daly proceedings, Article 28.1 of the Constitution sets out the numerical limits for the composition of the Government. It states that the Government must consist of not less than seven and not more than fifteen members, all of whom are appointed by the President in accordance with the constitutional provisions.

257. Of course, this provision does not operate in isolation. It must be understood within the broader constitutional and legislative framework that governs the formation, responsibilities, and accountability of the Government. In this broader context, the numerical restriction is understood to reflect a balance between administrative efficiency and democratic representation, ensuring that the Executive remains both functional and accountable.

258. Under Article 28.2 it is provided that the executive power of the State shall, subject to the provisions of the Constitution “be exercised by or on the authority of the Government”. The use of the words “cumhacht chomhallach” in the Irish text suggests operative authority confirming the source and control of the exercise of power residing in the Executive.

259. The principle of collective responsibility is codified in Article 28.4 of the Constitution and is central to the functioning of the Irish Government. Article 28.4.1° establishes that the Government is accountable to Dáil Éireann, reinforcing the democratic principle that executive authority must answer to the legislature. Article 28.4.2° further defines the Government as a collective authority, stating that it must meet and act together, and that all members share joint responsibility for the Departments of State they administer. These provisions are intended to ensure that decisions are made collaboratively and that no single minister operates in isolation.

260. Article 28.4.3°, introduced following the decision of the Supreme Court in Attorney General v. Hamilton (No.1) [1993] 2 I.R. 250 (“Hamilton No. 1”) and the Seventeenth Amendment, addresses the confidentiality of Government discussions. It provides that such discussions must remain confidential in all circumstances, except where the High Court determines that disclosure is necessary:

(i) in the interests of the administration of justice by a Court, or

(ii) due to an overriding public interest, following an application by a tribunal of inquiry established by the Government or a Minister with the authority of the Oireachtas.

261. This framework ensures that while the Government operates as a unified body, it remains subject to democratic oversight and legal accountability, with safeguards in place to protect both transparency and the integrity of executive deliberations. Article 28.12 provides, however, that while authority remains with the Government, the organization and distribution of business amongst Departments of State and the designation of members of the Government to be members in charge of the said Departments shall be regulated in accordance with law.

262. The Taoiseach holds a central and constitutionally pre-eminent role in the formation and operation of the Government. Under Article 13.1.1°, the President is required to appoint the Taoiseach on the nomination of Dáil Éireann. This provision affirms the Taoiseach’s status as the head of Government, a designation further reinforced by both Article 13.1.1° and Article 28.5.1°, which expressly use the terms “the head of the Government, or the Prime Minister” in reference to the Taoiseach.

263. Once appointed, the Taoiseach exercises significant authority in shaping the Government. According to Article 13.1.2°, the Taoiseach nominates the other members of the Government, subject to the prior approval of Dáil Éireann, and these nominees are then formally appointed by the President. Thus, Government membership requires both parliamentary approval and presidential appointment.

264. Beyond formation of the Government, the Taoiseach also plays a key role in maintaining and managing the composition of the Government. Under Article 28.9.4°, the Taoiseach may request a Government member to resign. If the member refuses, the President is constitutionally obliged to terminate his or her appointment at the Taoiseach’s request. Article

28.10 mandates that the Taoiseach must resign if he or she loses the support of a majority in Dáil Éireann. Article 28.11 provides that the resignation of the Taoiseach automatically triggers the resignation of all other Government members.

265. These provisions collectively underscore the Taoiseach’s pivotal role—not only in initiating the Government’s formation but also in sustaining its legitimacy and coherence.

266. The President also has distinct responsibilities in relation to Government composition as Article 28.1 provides that the President appoints between seven and fifteen members to the Government, in accordance with the constitutional provisions. As noted already, the President has a separate role in respect of Ministerial resignations. In addition, the President has a constitutional role in the appointment of the Attorney General who is appointed by the President on the nomination of the Taoiseach, without requiring Dáil approval. By contrast, the Comptroller and Auditor General, like the members of Government, may only be appointed by the President if nominated by Dáil Éireann. The Comptroller and Auditor General may only be removed following resolutions passed by both Houses of the Oireachtas.

267. From the foregoing, while the President does not exercise executive power independently, the role of the President is essential in validating and formalising the decisions of the Taoiseach and the Oireachtas, thereby upholding the constitutional framework and democratic legitimacy of the Government.

268. There is also no doubt that under the constitutional framework, Dáil Éireann plays a central role in the formation of Government, the exercise of legislative authority and the control of public finances. As already noted, under Article 13.1.1°, the President must appoint the Taoiseach on the nomination of Dáil Éireann. This underscores the Dáil’s authority in selecting the head of Government and its central role in Government formation and oversight. Similarly, Article 13.1.2° requires that other members of the Government be nominated by the Taoiseach but only with the prior approval of Dáil Éireann. Thus, the Dáil acts as a gatekeeper in the composition of the Executive.

269. Articles 15 to 27 outline the legislative powers of the State, exercised through the Oireachtas, which comprises Dáil Éireann and Seanad Éireann. While both Houses share law-making functions, Dáil Éireann holds a dominant position, especially in financial matters again emphasizing its oversight role. Importantly, Article 16 governs the composition of Dáil Éireann and the electoral process. It mandates proportional representation through the single transferable vote, ensuring that each member represents a constituency with a roughly equal population. This system promotes electoral fairness and equal weight for all votes.

270. Dáil Éireann has exclusive constitutional responsibilities regarding public finances as made clear in several places in the Constitution as follows:

(i) Article 17.1.1° requires the Dáil to consider the Government’s Estimates of Receipts and Expenditure promptly.

(ii) Article 17.2 prohibits the Dáil from passing any financial legislation unless it is recommended by the Government via a message signed by the Taoiseach.

(iii) Article 21 deals with Money Bills.

(iv) Article 28.4.4° obliges the Government to prepare and present annual financial estimates to the Dáil.

(v) Article 29.5.2° mandates Dáil approval for any international agreement that imposes a financial charge on the State.

271. Together these, and other, provisions ensure that the Dáil maintains fiscal oversight and acts as a check on executive spending. In general, Dáil Éireann is constitutionally empowered to ensure the accountability of the Government, enact legislation and safeguard the financial integrity of the State.

272. The functions of Dáil Éireann reflect the foundational principle of democratic accountability and reinforce the separation of powers within the Irish constitutional framework. When these provisions applicable to Dáil Éireann are read in the light of Articles 5, 6 and 16, the role of the Dáil is intrinsically tied to the sovereignty of the People whose elected representatives make up its membership. These matters are addressed later in our discussion of O’Donovan v. Attorney General [1961] I.R. 114.

(C) Statutory Framework

273. While the position of Government ministers (or members of the Government) is rooted in the Constitution, a statutory framework has developed in respect of the administration of Government departments which in turn provides for the appointment of Ministers of State who are not Government ministers. This statutory framework is comprehensively set out in our judgment in the Daly proceedings and it is not necessary to repeat it here.

274. In brief, and as more fully set out in our judgment in Daly, the Ministers and Secretaries Act, 1924 (hereinafter “the 1924 Act”) initially established 11 Departments of State, each headed by a Minister who, by virtue of the provisions of the 1924 Act, are corporations sole. Under the provisions of the 1924 Act (s. 5), collective responsibility of the Executive Council was maintained despite individual ministerial appointments. the 1924 Act was most recently amended by the Ministers and Secretaries and Ministerial, Parliamentary, Judicial and Court Office (Amendment) Act, 2020.

275. The 1977 Act (as amended) changed the legal landscape significantly by allowing the appointment of up to 10 Ministers of State (Junior Ministers) (now increased to 23 under the 2025 Act) who were (and are) not Members of Government. Importantly, before 1977, the term “Minister of State” meant someone in charge of a department. After amendments to the Interpretation Act 1937 effected by s. 4 of the 1977 Act with the effect that the expression “Minister of State” was to be construed as meaning a member of the Government having charge of a Department of State, only “Ministers of the Government” are now considered to be in charge of departments. In this way, statute clearly differentiates between Ministers of Government and Ministers of State in a manner clearly intended to ensure observance of Article 28.4.2 insofar as the requirement that the Departments of State be administered by the members of Government is concerned.

276. The 1977 Act provides that Ministers of State resign automatically if the Taoiseach resigns but that they continue their duties until a successor is appointed. Their powers are delegated by Ministers of Government in charge of the department under s. 2 of the 1977 Act and can be revoked. While these powers are exercised in their own name, the legislation envisages that the Minister of State remains under supervision of a Government minister and accountability is not removed from the Government Minister. Significantly, no right is conferred by statute for Ministers of State to attend Government meetings.

277. Section 3A of the 1998 Act governs allowances and entitlements for certain office holders, including provisions (as amended) for Super Junior Ministers. The 1998 Act (as amended by the 2025 Act) allows up to four Ministers of State to receive an annual allowance for regular attendance at Government meetings. Under the 1998 Act, the Government sets the rate of the annual allowance and can apply it retrospectively. These Ministers of State also receive enhanced pension and severance benefits (under the Ministerial and Parliamentary Offices Act, 1938).

278. The 1997 Act provides for additional benefits and allows appointment of special advisers to Ministers of State equivalent to those for Senior Ministers. Similarly, S.I. No. 182/1997 Road Traffic (Traffic and Parking) Regulations 1997 provide that authorised vehicles for Ministers of State receive similar traffic exemptions as those for Senior Ministers. Four Ministers of State currently qualify under s.3A(1)(a) of the 1998 Act, each receiving a ministerial salary and a special allowance in respect of attendance at Government meetings in addition to their TD’s salary together with the other benefits just mentioned.

7. FINDINGS OF FACT

(A) General

279. The facts in this case consist of legal facts referrable to the terms of the Constitution itself and the relevant legislation, both summarised above, as well as the facts established on the evidence in relation to custom, practice and convention. Insofar as legal facts are concerned, we do not propose to repeat provisions already identified above. It is, however, appropriate to now record our findings on the evidence before us in relation to the formation of Government, the appointment of Ministers and the relevant Ministers of State, the differences between them and the practice as regards the attendance and participation at Government meetings by those Ministers of State and the Government decision-making process, as attested to by the witnesses. In this regard, it bears note that there was, in reality, very little factual dispute between the parties with differences turning largely on different understandings of the meaning or significance to be attributed to the same events.

280. In his evidence, Deputy Murphy accepted that he had no direct experience of Government or its formation. The Court had the benefit, however, of the evidence of Mr. Callinan, Mr. Ross and Mr. McGrath in respect of their regular attendance at meetings of Government as to the conduct of those meetings and the nature and extent of the participation by the relevant Ministers of State invited to attend those meetings arising from an agreement reached in Government formation negotiations.

(B) Government Formation

281. In terms of Government and its formation, the evidence of primary fact in this case was principally directed to the 30th, 31st and 35th Governments.

282. The 30th and 31st Governments were formed from the 32nd Dáil. Taoiseach Enda Kenny led the 30th Government from 6th May 2016 to 14th June 2017 and Taoiseach Leo Varadkar led the 31st Government from 14th June 2017 to 22nd June 2020.

283. The 35th Government, led by Taoiseach Micheál Martin, was formed earlier this year on 23rd January 2025 from the 34th Dáil.

(C) Speech in the Dáil

284. In relation to the 30th and 31st Governments, when Taoisigh Kenny and Varadkar made their respective speeches in Dáil Éireann on 6th May 2016 and 14th June 2017, after returning from Áras an Uachtaráin, having been appointed as Taoiseach by the President after their election by the Dáil earlier in the day on those dates, they drew a clear distinction when indicating the intended assignment of the departmental portfolios between the proposed 14 nominated members of the Government (who would lead the relevant 18 Government Departments (or departments of state)), the persons to be appointed as Attorney General (first Máire Whelan SC and then Séamus Woulfe SC), the proposed Minister of State at the Department of the Taoiseach who would be Chief Whip (first Deputy Regina Doherty and then Deputy Joe McHugh) and the proposed Ministers of State who would be attending meetings of the Government (the Super Junior Ministers) (on both occasions this included Deputy McGrath).

285. As set out in detail in our judgment in the Daly proceedings, a distinction was also made on the occasion of the announcement of the 35th Government in the Dáil, where the Taoiseach named the proposed members of Government first, followed by the Attorney General, who constitutionally is not a member of Government and does not require the approval of the Dáil, before continuing to identify those deputies to be nominated by him for approval by the Government as Super Junior Ministers (which included the Chief Whip).

286. To understand the announcement in its political context, it is significant that although, under the Constitution, the Attorney General is not a member of the Government and the appointment of the Attorney General does not require Dáil approval, nonetheless by political custom and practice, the Attorney General was referenced on each occasion addressed in evidence (23rd January 2025, 14th June 2017 and 6th May 2016) by the relevant Taoiseach in their respective speeches to the Dáil after each returned from Áras an Uachtaráin having been appointed as Taoiseach by the President consequent upon their election by the Dáil earlier that day.

287. On each occasion, 23rd January 2025, 14th June 2017 and 6th May 2016, after he returned from Áras an Uachtaráin, the Taoiseach, in his speech to the Dáil, when outlining the intended assignments of departmental portfolios, distinguished between the proposed nominated members of the Government (who would lead the departments of state), the person to be appointed as Attorney General, the proposed Minister of State at the Department of the Taoiseach who would be Chief Whip attending meetings of the Government and the other proposed Ministers of State who would be attending meetings of the Government (the Super Junior Ministers). This was not done to procure Dáil approval of the nomination of the Attorney General or the identified Ministers of State. Under the Constitution, Dáil approval was not required and nor was it sought or obtained.

288. Accordingly, the fact that on the occasion of the formation of the 35th Government the Taoiseach also referred to the Super Junior Ministers in his speech to the Dáil having first nominated his choice of Ministers of Government for Dáil approval is not of any legal consequence. Indeed, as the record demonstrates and, as noted above, the nomination of Attorney General by the Taoiseach for appointment by the President is invariably referred to in the Taoiseach’s speech to the Dáil. It has never been suggested that this has any legal effect or purpose. We are satisfied that the purpose in calling out the names, while serving to put the names on the record of the Dáil proceedings, is purely political.

(D) Dáil Approval and Appointment at Áras an Uachtaráin

289. The evidence confirms that in 2016, 2017 and 2025 the Taoiseach was appointed in accordance with the provisions of Article 13.1.1° of the Constitution and the members of the Government (including the Tánaiste pursuant to Article 28.6.1° and the Attorney General pursuant to Article 30.2 of the Constitution) were appointed in accordance with Article 13.1.2° and Article 28.1 of the Constitution. All the necessary Dáil resolutions, warrants of appointments, seals of office and related documentation for these appointments were proved in evidence.

290. We find on the evidence that in 2016, 2017 and 2025, that once Dáil approval was obtained for the Taoiseach’s nominees for Government, the nominated members of the Government travelled to Áras an Uachtaráin together with the Attorney General and those invited deputies who were proposed to hold Super Junior positions and attend Cabinet meetings. It is not disputed that, whilst the Attorney General and nominated members of Government were appointed by the President pursuant to the Constitution, the Super Junior ministers in attendance were not.

291. Instead, as established on the evidence, the Government convened its first meeting at Áras an Uachtaráin following the constitutional appointments. It was at that meeting, that those deputies who were invited by the Taoiseach to attend, were nominated by the Taoiseach and appointed by the Government as Ministers of State pursuant to the statutory powers vested under the 1977 Act (as amended).

292. The evidence of both Mr. Ross, a former Minister of Government, and Mr. McGrath, a Super Junior Minister, was entirely consistent with a recognition, in the different formalities pertaining to their individual appointments, of the fact that the respective positions of Minister of Government and relevant Minister of State are different and enjoy a different and distinct legal status.

293. Thus, Mr. Ross was appointed as a Minister in accordance with the Constitution by the President following approval of the Taoiseach’s nomination in Dáil Éireann his nomination having been approved by the Dáil. Mr. McGrath, on the other hand, although invited, as a deputy, to attend at Áras an Uachtaráin while members of Government (including Mr. Ross) were appointed and received their seals of office, was appointed pursuant to statute, not the Constitution, at the first meeting of the newly formed Government that same day and without any necessity for Dáil approval of his appointment.

294. This difference in role and formalities is evidenced in visual form by the official photograph taken at Áras an Uachtaráin, as adduced in evidence, on the occasion of Mr. Ross’ appointment as a full Minister of Government following the approval by the President of the Taoiseach’s nomination for Government and the presentation by the President to each full Member of Government of their seal of office. The photograph depicts the presence of the Attorney General with the President, the Taoiseach, the members of the Government, the deputy who was proposed as Minister of State at the Department of the Taoiseach and Government Chief Whip and the other deputies who were proposed as relevant Ministers of State (including Mr. McGrath).

295. In the photograph, standing together with the other relevant Ministers of State and the members of Government, it is noteworthy that in the official photograph taken at Áras an Uachtaráin on the occasion of Mr. Ross’ appointment to Government, Mr. McGrath and the other Ministers of State were not holding a seal of office, in contrast with Mr. Ross and the full members of Government whose seals were clearly visible.

296. The factual sequence as established in evidence and not disputed in relation to the current Government is similar. As part of a political arrangement in the formation of Government, Deputies Butler, Naughton, Grealish and Canney were invited by the Taoiseach to travel to Áras an Uachtaráin and to attend the first meeting of the Government held at Áras an Uachtaráin following the appointment of Government ministers by the President. Their attendance at Áras an Uachtaráin was not as Ministers of Government nominated by the Taoiseach with the approval of Dáil Éireann for the purpose of appointment by the President, but rather as elected deputies whom the Taoiseach had decided to nominate for appointment by the Government as relevant Ministers of State/Super Junior Ministers.

297. There is no dispute about the fact that the four Ministers of State were not appointed by the President and did not receive seals of office in distinction from the Government Ministers (members) whose appointment had been approved by Dáil Éireann. Indeed, there was no real dispute as between the parties in respect of the different appointment process respectively for a Minister of State and a Minister (member) of the Government.

298. In summary then, the evidence confirms that in 2016, 2017 and 2025 the Taoiseach was appointed in accordance with the provisions of Article 13.1.1° of the Constitution and the members of the Government (including the Tánaiste pursuant to Article 28.6.1° and the Attorney General pursuant to Article 30.2 of the Constitution) were appointed in accordance with Article 13.1.2° and Article 28.1 of the Constitution. On each occasion (2025, 2017 and 2016), following his return from Áras an Uachtaráin having been appointed as Taoiseach by the President consequent upon his election by the Dáil earlier that day, the Taoiseach gave a speech in the Dáil in which he nominated the members of his Government followed by the intended assignment of departmental portfolios.

299. The invariable practice on each of the three occasions was then for the said deputies to travel to Áras an Uachtaráin with the proposed members of Government and the Attorney General. Thereafter, the members of the Government were appointed by the President and received their seals of office (they having already been approved by the Dáil). At that point, those deputies nominated by the Taoiseach attended the first meeting of the newly formed Government held in Áras an Uachtaráin, as deputies invited to attend. At that first meeting they were appointed by the Government, at the nomination of the Taoiseach. They were also invited to be included in the customary photograph taken with the President and the Attorney General.

300. We are satisfied on the evidence that the attendance at Áras an Uachtaráin by Mr. McGrath and those other deputies for appointment as Super Junior Ministers by the Government at its first meeting, occurred at the invitation of the Taoiseach and was part of a political agreement in the formation of a Government. It has been established that all Ministers of State are appointed by the Government on the nomination of the Taoiseach in accordance with s. 1 of the 1977 Act. This is quite distinct from the practice regarding the appointment of members of the Government, who, pursuant to Article 28.1 and Article 13.1.2° of the Constitution, are appointed by the President on the nomination of the Taoiseach with the prior approval of Dáil Éireann.

301. Based on the facts established and as a matter of law about which there can be no controversy, there is no doubt that the authority and responsibility of the Minister for State, deriving from statute and not the Constitution, differs both as to its source and its extent from that of a full Minister of Government.

302. Although Dáil approval is not required for their appointment, the facts demonstrate that, by changing the law to provide progressively for an increase in the numbers of Ministers of State and to increase the number of Super Junior Ministers who may receive extra allowances in recognition for their work in attending meetings of Government, coinciding in time with changes as they occurred in practice, these practices have been endorsed by the Dáil as they evolved. Therefore, while the attendance of and participation by non-Government ministers at meetings of the Government is long established and provision made by law for the appointment of Ministers of State is uncontroversial, the practice of appointing Super Junior Ministers, disputed in these proceedings, is also provided for in law to the extent of provision for extra allowances in s. 3A of the 1998 Act, and further amended in 2025 to enable payments to four Super Junior Ministers. The said amendment to statutory provision for these payments occurred contemporaneously with the increase from three to four Super Junior Ministers in January 2025.

303. In another example of the law keeping pace with factual developments and evidencing Dáil sanction of expenditure associated with the practice of appointing additional ministers, on 25th February 2025, the 2025 Act amended s. 1 of the 1977 Act to increase the maximum number of Ministers of State to 23.

(E) Attendance at and Participation in Government Meetings

304. In view of the core contention that Ministers of State in attendance and participating at meetings were de facto supernumerary members of Government in a manner which offended the constitutional order, the evidence in relation to the extent and nature of participation by Super Junior Ministers was key in these proceedings.

305. While undoubtedly Mr. Ross and Mr. McGrath attributed a heightened importance to the role of the Minister of State attending meetings of Government in their evidence, ultimately, there was little real disagreement or dispute on the evidence adduced as to what transpires at Government meetings.

306. As regards attendance at Government meetings, it is common case that there are 15 members of the Government, including the Taoiseach, who are appointed by the President each of whom are lawfully entitled to attend a meeting of the Government. Each of the witnesses agreed that the Taoiseach could not exclude a member of the Government from attending a meeting of the Government but he could request the Secretary General to leave if, for example, political matters were being discussed, or the Attorney General, if legal advice was not required.

307. In contrast to the 15 members of the Government, appointed by the President, who have a constitutional entitlement to attend meetings of the Government, the Super Junior Ministers have no enforceable legal entitlement to attend and participate in meetings of the Government and their presence at meetings of the Government arises at the invitation of the Taoiseach in the context of a political agreement or arrangement which is in contrast to the position of members of the Government. The Government decision, on the nomination of the Taoiseach, to appoint the deputies to the positions of Ministers of State says nothing about their regular attendance at meetings of the Government. Whilst the extra work involved in attending meetings of the Government is recognised in law by the payment of an extra allowance, there is no enforceable legal entitlement to attend Government meetings, albeit their exclusion from a meeting might, depending on the circumstances, trigger political instability. This difference between members of the Government and the Super Junior Ministers is also evidenced by the attendance records of the meetings contained in the blue slips in the manner outlined above.

308. Furthermore, although a Super Junior Minister is paid an additional allowance and is, therefore, paid more than a Minister of State who does not attend meetings of the Government on a regular basis, nonetheless they are paid less than a member of the Government (a full Government Minister).

309. Relevant to decision-making at meetings of Government and the role and responsibility of full Ministers of Government, the evidence regarding the presentation of Memoranda carries great weight in establishing real differences in participation before and during the meetings as between full Ministers of Government and Ministers of State.

310. From the evidence it is clear, and we so find, that at its meetings, the Government considers an agenda of items that is prepared based on Memoranda submitted by the members of the Government covering the range of policy and administrative matters for which the Government is responsible. At the Government meeting, the sponsoring member of the Government (the Senior Minister) speaks to the agenda item when called by the Taoiseach by reference to the Memorandum submitted. Memoranda can be submitted only by members of Government and cannot be submitted by Super Junior Ministers or any Ministers of State.

311. Memoranda may bring matters to the attention of the Government for its information or for a

decision.

312. Where a member of the Government wishes to bring matters that do not require any policy

decision and are “solely for information”, the member of the Government can submit a “Memorandum for Information”. A Memorandum for Information is required to be submitted to the Government Secretariat in advance of the meeting of the Government and is ordinarily noted by the Government, as by definition it does not involve substantive decisions approving policy proposals.

313. A draft “Memorandum for Decision” which may address a substantive policy matter or item of legislation goes through an iterative process which involves the receipt of observations only from the members/Ministers of the Government and the Taoiseach (and where necessary, the advice of the Attorney General), and does not involve the relevant Ministers of State, before the Memorandum is finalised and placed on the agenda for the Cabinet meeting. At that point, the finalised version of the Memorandum for Decision is furnished to the members of Government and the relevant Ministers of State in advance of the meeting.

314. In all cases, Memoranda must be brought to the attention of the Taoiseach in advance of submission to the Government.

315. The meetings of the Government are regulated by the Government Secretariat in the Department of the Taoiseach and the actual meetings of the Government are organised by the Secretariat through the eCabinet system, the IT system which is used prior to the actual physical and in-person meeting of the Government. The Government Secretariat manages this IT system, eCabinet, for Departments to draft Memoranda, to circulate them for observations to other Members of the Government and the Attorney General, and to record the observations provided and the responses to them. The eCabinet system is the means by which Memoranda are then submitted to the Government Secretariat for inclusion on the Government Agenda.

316. We are satisfied on the evidence that there are different levels of access to eCabinet, which determine whether an eCabinet user can, for example, create, edit, review or delete draft Memoranda created by that user, or by another user. In every Department, a number of civil servants will have varying levels of access to draft and finalise Memoranda in advance of meetings of Government.

317. It was not ultimately disputed in the evidence on behalf of Deputy Murphy that Ministers of State do not have access to eCabinet during the preparatory and observation stage in advance of meetings of Government. They are furnished with the finalised Memorandum before the Government meeting as a courtesy. This is a fundamental difference in the treatment of Ministers of State and full Government ministers, the latter enjoying access during the preparatory and observation phases.

318. It was put to Mr. Callinan by Mr Rogers SC on behalf of Deputy Murphy that “the whole issue about memoranda and who can bring memoranda is a sort of a phony point because that’s not what we are talking about? Do you agree with me about that? We are talking about the participation of non-members of the Government in deliberations of the Government?” (Transcript Day 2, p. 161, para. 702). Mr. Callinan strenuously disagreed with this characterisation. He stated that the process and the systems around the preparation and submission (the word “submission” being preferred to the word “bring”) of Memoranda to Government was a longstanding and carefully designed and developed system to reflect quite carefully the legal and constitutional responsibilities around it adding that:

“So there can be discussion at Government and that can include and does include the Ministers of State who regularly attend. But it could also include the Attorney General, it could also include me, it could also include other people that the Taoiseach might chose to invite and we have seen lots of examples of that over the years. So I would differentiate between the discussion that takes place and decision that is made.” (Transcript Day 2, p. 161, para. 702)

319. Indeed, Mr. McGrath confirmed in his evidence in chief, in response to a question from Mr. Rogers SC, that there was “no occasion” where he submitted observations on a Memorandum submitted by a member of the Government in the context of a meeting of the Government in advance of the meeting. When asked about this in cross-examination he initially stated that he and his staff “had” made observations on Memoranda for discussion at meetings of the Government and then clarified that this had not been done (through the eCabinet system) (Transcript Day 2, p. 87, para. 308). Under cross-examination, Mr. McGrath accepted that in his capacity as a Minister of State, he could not submit any written observations on such Memoranda but, rather, the person who could submit observations was the member of the Government i.e. the Senior Minister/member of the Government who in charge of the Department of State.

320. The above position is also borne out by the documents adduced in evidence. The Cabinet Handbook is an internal Government (Cabinet) guide which is given to all members of the Government and those deputies who are proposed to be relevant Ministers of State. Its stated purpose is to assist Ministers and officials in the preparation of matters to be dealt with at Government meetings, in accordance with principles of collective responsibility. It also offers guidance on a range of ancillary matters. The guidelines in the Cabinet Handbook may be changed, or disapplied, at the discretion of the Government.

321. The procedure confirmed in the Cabinet Handbook is that, prior to the physical meeting, the sponsoring member of the Government (i.e. Senior Minister) circulates a Memorandum via the eCabinet system where other members of the Government (i.e. Senior Ministers) can make observations on that Memorandum, entirely consistent with the weight of the evidence as to what occurred in practice and not disturbed by the evidence of Deputies Ross and McGrath as to their experience in contributing to meetings of Government through the eCabinet system.

322. In accordance with the Handbook and the evidence adduced, a Memorandum for a proposal requiring a decision of the Government is referred to as “Memorandum for the Government” and is brought to the meeting of the Government by the member of Government who in charge of the Department of State responsible for the proposal through the eCabinet process. It is not envisaged in the Handbook, consistent with the evidence heard, that a Memorandum would be brought by a relevant Minister for State.

323. Mr. McGrath, as a Minister of State across several Departments of State, had powers concurrently delegated to him, in the area of disabilities, by the Ministers/members of the Government who headed up each of the three Departments of State of which Mr. McGrath was a Minister of State. During his four years as a Minister of State at the Department of Health, for example, the head of the Department of Health (and the relevant Minister) of the Government was Minister Simon Harris who delegated the area of disabilities to Mr. McGrath (in accordance with s. 2 of the 1977 Act (as amended)). As a Minister of State with delegated powers, we are satisfied that Mr. McGrath was not entitled to bring a Memorandum to Government in his own right, but the Government Minister charged with responsibility for his Department could do so either instead of Mr. McGrath or by adding his name to the Memorandum.

324. On the question of bringing Memoranda to a meeting of the Government, Mr. McGrath in the earlier part of his evidence (before lunch on 10th July 2025), without the benefit of having copies of the actual Memoranda before him (or the Court) at that point, gave examples of four Memoranda (referred to earlier in this judgment) as occasions when he (alone) brought and presented Memoranda to the meetings of the Government. When copies of the Memoranda in question were produced and put to Mr. McGrath after lunch, it became apparent that he was mistaken as to his recollection.

325. Contrary to Mr. McGrath’s memory of events, the official records in each case confirmed that the very Memoranda which Mr. McGrath had himself identified in evidence, as occasions when he brought Memoranda to Government, had each emanated from the Office of the Minister for Health, i.e. the member of Government (Senior Minister). Accordingly, Mr. McGrath was unable to instance a single occasion in which he presented a Memorandum to Government in his own right and without the sponsorship of his Senior Minister/member of Government.

326. We are satisfied, by reference to these examples which Mr. McGrath relied upon as occasions when he had brought Memoranda to Government meetings, that his specific recollection regarding the extent of his involvement in Government meetings was mistaken. It is true that the relevant Memoranda presented by the Minister for Health referred, in various terms of involvement, to the Minister of State for Disabilities but they were clearly not introduced by Mr. McGrath because he was not a member of Government entitled to bring Memoranda to Government. We consider that it is much more likely, and not inconsistent with the formal record, that Mr. McGrath may have contributed to the presentation of these Memoranda to the relevant meeting of the Government (as he stated in his evidence) but only after they were briefly introduced by the member of the Government in charge of the Department of State which was referenced in the Memoranda, in the typical manner described in the evidence of Mr. Callinan, and then handed over to Mr. McGrath for his presentation.

327. The evidence of Mr. Callinan, which we accept, and which was not contradicted, once the examples cited were examined in evidence, is that Memoranda brought to a meeting of the Government begin with the name of the member/Minister of the Government. No Memorandum can be brought before, or introduced to, a meeting of the Government by a Minister of State, including a relevant Minister of State. On occasion, however, the Senior Minister/member of the Government, after introducing the Memorandum, may hand the matter over to the Minister of State, who will then, at that point, speak to, or make a presentation in relation to the Memorandum. In addition, some Memoranda do refer to the Minister of State. Mr. McGrath in his evidence described this process as “co-sponsoring”.

328. We are satisfied that under the eCabinet process, therefore, Memoranda, whether a “Memorandum for the Government” (i.e. for decision by the Government) or a “Memorandum for the Information” of the Government, are required to be brought to the meeting of the Government by a member of the Government (one of the 15). Such Memoranda cannot be brought to Government meeting by a Minister of State alone.

329. Notwithstanding his conviction that he was the moving party in bringing Memoranda to Government, we are satisfied that it is established on the evidence that Mr. McGrath would have been unable to do so without the sponsorship of a Minister for Government. This

conclusion is clearly borne out by the evidence.

330. At meetings of the Government, we are satisfied that the typical sequence is that the Taoiseach invites the relevant (Senior) member of the Government to introduce an item (as per the Cabinet agenda) and depending on the level of discussion, the Tánaiste, then speaks and after him, other Ministers may contribute, if they wish, and are facilitated by the Taoiseach who chairs the meeting. The Ministers of State attending the meeting of the Government (the Super Junior Ministers) can participate in a discussion taking place on an agenda item, if a discussion is warranted. On occasion, if relevant, the member of Government can, after introducing an item, hand an issue over to the relevant Minister of State to present.

331. The practice at meetings of the Government, as established in evidence, demonstrates that, in the conduct of the business of Government, the full Minister remains answerable at Government meetings for the relevant Super Junior Minister in the department, discharging functions under delegation from the full Minister. We consider the rules followed in relation to the presentation of Memoranda for Government meetings to be a manifestation of this.

(F) Cabinet Committees

332. The evidence in relation to meetings of Cabinet Committees was not controversial but was instructive in terms of Government decision-making processes. On the evidence, Cabinet Committees can include attendance by the Taoiseach, the Tánaiste, member/Minister of Government in charge of the Department of State, the Minister of State in that department, officials, including Secretaries General and Assistant Secretaries General, and special advisors. Where it is clear from discussions at the relevant Cabinet Committee meeting that the support is not present for a proposal, such proposals are no longer pursued as agenda items at the Government meeting. The relevant Ministers of State, together with others, can participate in the discussions at those meetings.

333. The Cabinet Committee process detailed in evidence shows two things: the way matters brought to Government meetings are informed and also how integral consent is to the process of Government decision-making.

334. In our view, the way decisions of Government are shaped by meetings elsewhere highlights the artificiality of the objection in these proceedings to participation of non-Government ministers in decision-making. It is self-evident that Government decisionmaking is informed by a wide range of inputs. This does not detract from the fact that it is the actual members of Government who make the ultimate decision.

335. As for the role of consensus in Government decision-making (addressed in the following section), this is clearly significant because it ensures that the presence of third parties at Government meetings does not result in a decision of Government being taken by those third parties in whatever capacity they attend, thereby undermining the constitutional responsibility of members of Government as a collective.

(G) Consensus Integral to Government Decision-Making

336. On the evidence we are quite satisfied that the governmental process – including everything from early-stage discussion, discussion at Cabinet Committees, the formal preparation of a Memorandum for Government and the circulation of the Memorandum for observations – is geared towards achieving maximum consensus before the actual meeting of the Government takes place. The iterative process involved in the preparation and finalisation of Memoranda for proposals requiring Government decisions and the use of the e-Cabinet computerised system, facilitates the consensus decision-making of the 15 members of Government who will make the decision on the proposals contained in the Memoranda at the Cabinet meeting. That process of the preparation and finalisation of such Memoranda and their introduction at meetings of the Government is controlled by each of the 15 members of Government as the head and person in charge of the relevant Department of State.

337. A central difficulty confronting Deputy Murphy’s claims in these proceedings is that at meetings of the Government decisions are invariably made by consensus (with no votes). Mr. McGrath, for example, agreed that in his experience attending Government meetings, any

decision made by the Government necessarily involved the consensus of the 15 Government members/Ministers of the Government who attended the meeting. In our view, there is simply no basis in fact for suggesting that the presence, and participation, of the relevant Ministers of State at the meeting in anyway undermines the participation of the 15 members of the Government in the decision-making process or in the ultimate decision of the Government. It has been established that all decisions depend on the consensus of the 15 members.

338. The evidence clearly demonstrates that discussions held at meetings of the Government are part of a lengthy and complicated participatory process which includes, for example, policy discussions at Cabinet Committees, the preparation of Memoranda (proposed for example by a member of the Government), the provision of observations and responses by the other 14 members of the Government (including the Taoiseach), and, when required, advices from the Attorney General, which are recorded iteratively in the finalised version of the Memoranda, and their discussion at a meeting of the Government which culminates in the action of the making of a decision by the Government, by consensus of the 15 members of the Government. While this could also be achieved by a vote of the 15 members of the Government, it appears votes are not taken in practice. The evidence that there has not been a vote at a meeting of Government in years is testament to the fact that generally a consensual approach is adopted to the discussions and the decision-making process at meetings of the Government. Were a vote required, however, such a roll call vote would only involve the 15 members of Government and not the Super Junior Ministers.

339. The evidence in Deputy Murphy’s case (and in Deputy Daly’s proceedings) confirmed that no issue is taken with the regular attendance of the Chief Whip, the Secretary General to the Government (the Cabinet Secretary) or the Attorney General, or indeed, with the attendance and participation on a discrete basis dealing, for example, with one-off issues, of other Ministers of State, third parties, officials or experts, at Cabinet meetings. The Chief Whip, the Cabinet Secretary or the Attorney General are not members of the Government, as constitutionally defined. As set out earlier in this judgment, Deputy Murphy sought to distinguish the role and manner of the participation of these persons (with whom objection is not taken) with the attendance and participation at meetings of the Government by the Super Junior Ministers (with whom objection is taken in these proceedings).

340. We consider that neither the presence and participation of those to whom objection is taken (i.e. the Super Junior Ministers) nor of those to whom no objection is taken (i.e. the Chief Whip, the Cabinet Secretary, the Attorney General, or other Ministers of State and third parties on a one-off basis) infringes implicitly (or expressly) any decision taken by the 15 members of the Government, whether such decision is taken consensually or by roll call vote.

341. We are satisfied that the attendance and participation of persons, other than the 15 members of the Government (including the Taoiseach), at the meeting of the Government does not undermine or lessen the decision taken by the members of the Government. Any such decision is still taken by, or on the authority of, the members of the Government in the exercise of the executive power of the State subject to the provisions of the Constitution.

(H) Budgetary Process

342. Mr. McGrath’s evidence in relation to the Estimates process and securing budgetary allocation for disability services was also instructive on the question of where the responsibility to account lies. While he was undoubtedly active in making the case for increased budgetary allocations in meetings with officials and with the Minister for Public Expenditure and Reform and the Minister for Finance, he accepted that it was not uncommon for Ministers of State, whether or not they regularly attend meetings of the Government, to seek budgetary meetings about the areas covering their delegated responsibility.

343. Mr. McGrath further accepted that, from the Government’s perspective, there was only one budget and that administratively, each Government Department had its own budget so that, for example, the area of disability would have elements across the budgets of a number of Departments of State, including the Department of Social Protection, the Department of Justice and the various services provided for by the Health Service Executive in the context of the Department of Health.

344. It is clear on the evidence that the settlement of the Estimates by the Minister for Public Expenditure and Reform occurred in respect of each Department of State with the actual member of the Government (i.e. the Senior Minister) who is in overall charge of that particular Department of State rather than the Minister for State with delegated responsibilities, whether he or she be a relevant Minister of State or not. This was not disputed by Mr. McGrath.

345. Although Mr. McGrath gave evidence that he was able to negotiate directly with the (then) Minister for Public Expenditure and Reform and procure, from outside of the Estimates process, an extra €5.8 million in order to employ approximately one hundred speech and language therapists to help address the assessment need waiting list, he accepted with reference to a table in a copy of the Revised Estimates for Public Services for 2018, entitled “Summary of Gross Expenditure (Capital and Current) (a) by Ministerial Vote Group”, that “disability” was not identified. This was because it was not a standalone Government Department (i.e. it was not a Department of State). This underscores the fact that as a relevant Minister for State, Mr. McGrath, nonetheless acted under delegation from a Senior Minister/member of Government and it was that full member who, as member of Government, was accountable to the Dáil.

346. While we accept that from a political perspective Mr. McGrath might have had more ready access to the Minister for Public Expenditure and Reform than other Ministers of State due to political considerations, we are nonetheless satisfied that he did not carry the budgetary responsibility of a Government Department. While he enjoyed a platform from which to make representations and was undoubtedly in a position of political influence, overall responsibility for departmental spending in relation to disabilities lay with the full Government Minister. Mr. McGrath did not carry responsibility for a standalone Government Department.

(I) Representative of the Government

347. As for the importance attached by Mr. McGrath to being nominated by the Taoiseach to address the United Nations in New York, we fully recognise that such a request is a huge honour, and of considerable political and personal significance for Mr. McGrath, in representing Ireland at an international forum. While politically and personally significant, however, it does not amount to meaning that his legal status as a Super Junior Minister was in some way enhanced. Nor was it evidence that his position as a Super Junior Minister was to be equated with the position of one of the 15 (including the Taoiseach) members of the Government, who are in charge of their respective Departments of State. There is no suggestion that his attendance at the UN was based on any legal or statutory power which might be significant in terms of his role in Government meetings.

(J) Differences between Ministers of Government and Ministers of State

348. There are a range of other factual differences between the role and status of Ministers of Government and Ministers of State that we would like to record, at the risk of repetition. There are differences, for example, as regards rights of attendance and audience in the Houses of the Oireachtas, deriving in the case of full Ministers from the Constitution but in the case of Ministers of State dependent on Standing Orders adopted by the Houses of the Oireachtas.

349. Just as the position in respect of appointment differs in the manner set out above, so too is the termination of appointment. Article 13.1.3° of the Constitution applies in respect of full members of Government whereas s. 1(1) of the 1977 Act applies in respect of Ministers of State.

350. A further difference between Government Ministers and Super Junior Ministers established on the evidence and not disputed is that in an incorporeal meeting, which may occur from time to time and as required to deal particularly with urgent matters requiring a decision before the next scheduled meeting, each of the members of Government are telephoned and asked whether they agree with a particular proposal. There is no discussion, only a decision. Mr. Callinan’s evidence, which we accept and was not seriously disputed, is that Ministers of State are never telephoned and asked their view on a proposal at an incorporeal meeting because they are not members of the Government and have no decision-making role.

351. The legal and factual differences between Ministers of State and Ministers/members of Government as established in evidence before us, which we accept, can be summarised in the following table:

Aspect Government Ministers Ministers of State

Legal Basis Constitutional (Article 28) Statutory (1977 Act and

amendments)

Appointment Appointed by the President Appointed by the Government on Authority on Taoiseach’s nomination Taoiseach’s nomination with Dáil approval Dáil Approval Yes No Required Seal of Office Yes (received from the No President) Departmental Role Heads a Department of Assigned to support a Minister; may State receive delegated functions Right of Audience Guaranteed by Constitution Provided by Standing Orders in the in Oireachtas Dáil (can be changed)

Attendance at Entitled to attend Attends by invitation only

Government

Meetings

Submission of Can submit and present Cannot submit or formally comment Memorandums

Decision-Making Consensus or Full voting No voting rights

Power rights

Participation in Included Not included

Incorporeal

Meetings

Special Advisers Up to 2 per Minister Up to 2 only for those who regularly Allowed attend Government meetings Allowances Standard Ministerial Additional allowance for those who allowances regularly attend Government meetings (Section 3A of the 1998 Act)

352. These differences, clearly established on the evidence and in law and set out above, demonstrate the fragility of a core (albeit not exclusive) factual premise upon which these proceedings have been taken, namely, that the Minister of State attending at meetings of Government is in the same position as a member of Government. In our view, this is an untenable proposition and is unsupported by the facts and the evidence. It is manifestly the case that there are, in fact and in law, only 15 members of Government within the meaning of Article 28.1 of the Constitution. We are quite satisfied on the evidence that functionally and legally, the role of a member of the Government is distinct from, and more powerful than that of a Super Junior Minister.

353. It is clear on the evidence that, outside of the (constitutional) entitlement of the 15 members of the Government (including the Taoiseach) attending meetings of the Government, the Taoiseach ultimately has the final say on who may or may not attend meetings of the Government. In relation to the relevant Ministers of State, the Taoiseach’s oral invitation to them arose in the context of a broader political agreement concerning the formation of a government by the parties to that Government. The decision to have one or more Ministers of State attending regularly at meetings of the Government Cabinet is a political decision, ultimately resting with the Taoiseach, as part of the Government formation process.

354. We are satisfied that as the two Governments formed between 2016 and 2020 comprised minority coalition governments consisting of the Fine Gael party and a number of independents which were reliant on a confidence and supply arrangement with Fianna Fáil, as the largest party in opposition, Mr. Ross and Mr. Grath were undoubtedly able to exercise political influence and leverage. This leverage resulted from the fact that, if an issue arose which they disagreed with, a residual threat by them to leave the Government could have the consequence of the withdrawal of the confidence and supply arrangement, the collapse of the Government and the holding of a general election.

355. It seems to us, however, that the consequence of the electoral system based on proportional representation predicated on a strong party whip system in a constitutional context, where the Government is responsible to Dáil Éireann, is that the results of a general election can present a range of variations both in Government composition and in the effectiveness of the Dáil in holding the Government subsequently formed to account. The position between 2016 and 2020 presented one such scenario. Whereas the constitutional architecture remained the same and was a constant, it was the political element which resulted in variations. The said variations, therefore, result directly from the very structure of our constitutional democracy and the political consequences which flow therefore require to be accommodated within that structure albeit in a manner which respects constitutional restraints.

356. Whilst functionally, and legally, the position of a person attending and participating in of the Government, as a Minister of State is very different from a member/Minister of the Government, the applicable political context can result in the arrogation of political power, which Mr. Ross and Mr. McGrath undoubtedly had and which they exercised. However, we are satisfied that factually this should not be conflated with what the constitutional and legal position is in terms of a member of the Government, on the one hand, and a relevant Minister of State, regularly attending meetings of the Government, on the other hand.

357. The source of the Minister of State’s legal power is entirely statute based whereas that of the full Minister derives from the Constitution, albeit supported by legislative scaffolding. The Minister of State only enjoys such powers as are vested in them by legislation upon delegation from the responsible full Minister. Their attendance at Áras an Uachtaráin at the invitation of the Taoiseach having regard to the political arrangements entered into and their attendance thereafter is part of the political arrangement which the Taoiseach agrees to as part of the formation of Government.

358. In closing submissions, it was submitted on behalf of Deputy Murphy that the case made by him had not been challenged by the Defendants i.e. that the Defendants had not sought to challenge the evidence adduced on behalf of Deputy Murphy relating to the manner and level of participation of Ministers of State attending Government meetings in the period between 2016 to 2020, as described by Mr. Ross and Mr. McGrath, and whether this reflects the position and practice of meetings of the Government in 2025. It was submitted that the onus of doing so was on the Defendants and that they had failed to discharge that onus. On behalf of Deputy Murphy, therefore, it was submitted that the influence of the Ministers of State attending Government meetings is unconstitutional because of the extent of their participation in the deliberations at those meetings.

359. We do not accept that this closing submission is a proper reflection of the evidence and the presentation of the legal position on behalf of the Defendants. In our view, the submission rests on the mistaken premise that presence in the room and participation in the discussions equates to membership of Government whereas the evidence adduced on behalf of the Defendants engaged squarely with this proposition and demonstrated that, for reasons of fact and law, this premise is unsustainable. We consider it to be unsustainable due to the undisputed and established differences in the status and role of the Government Minister when compared with the relevant Minister of State/Super Junior Minister and having regard to the manner of the decision-making of the members of the Government, the application of collective responsibility (including the Government’s accountability to the Dáil) and the application of cabinet confidentiality, all of which are discussed in the next section of this judgment.

8. ANALYSIS AND DECISION

(A) General Observations

360. In framing his case, Deputy Murphy contends that the attendance and participation by the relevant Ministers of State, on an ongoing basis, in meetings of the Government, on the basis of being effectively treated as members of the Government, is an erosion of the principles of collective accountability and responsibility, as provided for in Article 28 of the Constitution, when read together with Articles 5, 6 and 13. The position of the Defendants was described on behalf of Deputy Murphy as an asserted entitlement of the Taoiseach to invite whom he wishes to attend and participate in Government meetings on an ongoing basis.

361. The submissions on behalf of Deputy Murphy were anchored in the decision of the High Court (Budd J.) in O’Donovan v. Attorney General [1961] I.R. 114 (“O’Donovan”) with reference also being made to Doherty v. Government of Ireland [2011] 2 I.R. 222 (“Doherty”) and King v. Attorney General [2007]1 I.R. 296 (“King”), in emphasising the notion of “political rights” where he contended that the action of Dáil Éireann in approving the appointment of 14 Ministers of Government on the nomination of the Taoiseach, was “the designation of the rulers of the State by the People” (as provided for in Article 6 of the Constitution) i.e. the political right. This was fundamental to his core argument in challenging the invitation by the Taoiseach to the relevant Ministers of State to attend at and participate, on a continuous basis, in meetings of the Government.

(B) Justiciability and Clear Disregard

362. We are satisfied for the reasons set out in our judgment in Daly that the Court must have jurisdiction to determine if the Executive branch has failed to comply with the provisions of the Constitution through the regular attendance at and participation in Government meetings by relevant Ministers of State. In our view, this is the only conclusion consistent with a proper functioning of the separation of powers and the well-established position that the Government is a creature of the Constitution and is not competent to act free from the restraints and constraints of the Constitution (see, in particular, the judgment of Walsh J. in Crotty v. An Taoiseach [1987] I.R. 713 (“Crotty”) at p. 778)

363. Our finding that the issues are justiciable is also supported by the decision of O’Donnell C.J. in Burke v. Minister for Education and Skills [2023] 2 I.R. 1 (“Burke”) where he identified at paragraphs 39-41 of his judgment that the Constitution prescribes certain aspects of the Executive (referring specifically to provisions controlling the constitution of the Executive (Article 28.1 and 28.7), the manner of its appointment (Article 28.1), the requirement to observe confidentiality (Article 28.4.3°), and the requirement to prepare annual estimates (Article 28.4.4°)) and confirmed that, if any of those specific provisions were contravened, the Courts would be required to exercise a jurisdiction to so declare.

364. Although the questions raised by Deputy Murphy are justiciable, the established approach of the Courts is that he can only succeed in these proceedings if he establishes a “clear disregard” of the Constitution. The clear disregard standard was initially established in Boland v. An Taoiseach [1974] I.R. 338 (“Boland”) and this decision and subsequent cases were extensively reviewed by O’Donnell C.J. in Burke and referred to also by the Chief Justice in his judgment in Costello v. The Government of Ireland [2022] IESC 44 (“Costello”).

365. The judgment of Fitzgerald C.J. in Boland was described by O’Donnell C.J., at paragraph 58 of his judgment in Costello, as having “stopped short” of accepting the Government’s argument of an absolute rule of non-justiciability and was rather explained in qualified or conditional terms that the Courts had no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances were such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.

366. The judgment in Crotty, referred to above, as supportive of a finding that the claims in these proceedings are justiciable, is also an example of where there was judicial enforcement of a constitutional constraint and stands in marked contrast to Deputy Murphy’s case. There the Supreme Court held that only the Government could exercise the executive power of the State in external relations in circumstances where Title III of the Single European Act (the “SEA”) purported to create a separate treaty in which countries agreed to adapt their foreign policy within a structured framework known as “European Political Cooperation”. Subsequently, the Supreme Court explained the difference between the majority and minority judgments in Crotty as differing on the question as to whether Title III of the SEA amounted to the “…abdicating, alienating or subordinating or transferring the Government’s power (and in this respect duty) to conduct foreign affairs”: see, for example, the restatement of Crotty in these terms in Costello per O’Donnell C.J., at paragraph 65 of his judgment.

367. In Burke the Supreme Court restated the principle first established in Boland that a court would “only” intervene in circumstances where it could be said that the Executive was acting in clear disregard of the express or implied provisions of the Constitution.

368. The Court explained that the standard was described in this manner (i.e. by the use of the adjectives “only” and “clear”) because, in the context of Article 28, the Constitution, in conferring executive power, did not expressly constrain it which resulted in the establishment by the Supreme Court of a rule that the courts should only intervene if there was clear disregard of the provisions of the Constitution and of the governance structures which it contemplated. Thus, O’Donnell C.J. observed in Burke that “…if the Constitution presumptively consigns an area to another branch then even the process of review involved in any court proceedings is capable of being an interference with the freedom of action contemplated by the Constitution and it was therefore logical that the Court should find that the power of the Court to intervene in circumstances where it could be said that the executive was acting in clear disregard of an express or implied constitutional mandate…” (at p. 36, para. 56).

369. In his review of the clear disregard jurisprudence in Burke, O’Donnell C.J. observed that “…[t]hese 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 p. 38, para. 60).

370. In Burke, at paragraphs 57 to 61 of his judgment, O’Donnell C.J. also 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 was exceeding its proper role under the Constitution.

371. Deputy Murphy’s case involves the interpretation of several of the provisions of the Constitution, specifically Articles 5, 6, 13 and 28 and he places considerable reliance on the judgment of the High Court in O’Donovan (and related case law).

372. In terms of the framing of the issues in Deputy Murphy’s proceedings, however, we are satisfied that his challenge should be viewed through the lens of the second of the two scenarios described by the Chief Justice in Burke, i.e. where the claim is that the Government is exceeding its proper role under the Constitution. Accordingly, a higher threshold applies than would be the case if the exercise of the executive power, whether external or internal, infringed the constitutional rights of a citizen.

373. In assessing the challenge brought by Deputy Murphy in these proceedings, we would observe that as a corollary of the Court’s role in enforcing the boundaries of, and limitations on, the exercise of governmental power, which are either expressed in, or are to be implied from, the provisions of the Constitution, the Court should be equally mindful not to impose constraints on governmental conduct which are not required, expressly or implicitly, by the Constitution.

(C) The Approach to Interpretation

374. The constitutional assessment in this case does not stop at Article 28.1. As in the Daly proceedings, the claims in Deputy Murphy’s challenge fall to be assessed in a broader constitutional context. In examining the constitutional provisions identified on behalf of Deputy Murphy, the central issue which falls to be considered is how the presence of the Super Junior Ministers at Cabinet meetings has impacted on the manner of the decisionmaking by members of the Government, their exercise of collective responsibility (including the accountability of the Government to the Dáil) and the application of cabinet confidentiality.

375. Conscious of our separate decision in the Daly proceedings, also delivered today, we do not propose to traverse or repeat the reasoning in that case regarding the correct approach to constitutional interpretation. The judgments of the Supreme Court in The People v. O’Shea [1982] I.R. 384 (“O’Shea”) and Heneghan v. Minister for Housing [2023] 3 I.R. 419 (“Heneghan”), are authoritative on the approach to constitutional interpretation in this case. We adopt the analysis of O’Shea and Heneghan set out in our judgment in the Daly proceedings. These cases establish that individual constitutional provisions cannot be interpreted in isolation without regard to the Constitution as a whole and that, therefore, a harmonious and holistic interpretation is required.

376. This holistic approach to interpreting these constitutional provisions is particularly appropriate when seeking to ascertain, by reference to the clear disregard standard, whether an express or implied constitutional mandate (whether framed negatively (i.e. a constitutional restraint) or positively (i.e. a constitutional obligation)) applies in relation to the attendance by Super Junior Ministers at meetings of the Government as part of a political agreement or arrangement in the formation of the Government.

377. For reasons which we now elaborate, on our interpretation of the applicable constitutional provisions invoked in Deputy Murphy’s case including Articles 5, 6, 13 and 28, and relevant case law, we do not consider that the Defendants have breached any express, or implied, constitutional constraint (or obligation) by inviting the relevant Ministers of State to meetings of the Government.

(D) O’Donovan and equality of participation in elections (and referenda)

378. A good deal of the submissions made on behalf of Deputy Murphy centred around the judgment of the High Court in O’Donovan, where Budd J. held that the Electoral (Amendment) Act 1959 (the “1959 Act”) did not comply with the requirements of Article 16.2.3º of the Constitution in that the ratio between the number of elected members per constituency and the population of each constituency was not “so far as it is practicable…the same throughout the country….” Although the 1959 Act had been enacted consequent upon the 1956 census, the evidence before Budd J. disclosed disparities between different constituencies. The constituency of Dublin South, for example, had a ratio of 23,128 persons per deputy, whereas the constituency of Galway South had 16,575 persons per deputy.

379. In O’Donovan at p. 137, Budd J. observed that a “democratic state” denoted one in which all citizens have equal political rights and, on the facts of that case, he found that the application of the 1959 Act favoured certain rural areas in the west of Ireland at the expense of certain urban parts of the State and, therefore, infringed the requirement prescribed in Article 16.2.3º of the Constitution which required that the ratio between the number of elected members per constituency and the population of each constituency was not “so far as practicable the same throughout the country” (at p. 137).

380. It was submitted on behalf of Deputy Murphy that a harmonious interpretation of Articles 5, 6, 13 and 28 of the Constitution means the approval of the Dáil of the 15 members of the Government pursuant to Article 28 is consistent with Ireland being a democratic State as provided in Article 5 and with the right of the People to designate the rulers of the State in accordance with Article 6. It was contended, therefore, that an invitation to the Super Junior Ministers to attend and participate in the meetings and deliberations of the Government breaches Article 13.1.2 of the Constitution as they are participating without any approval of the Dáil and the meeting is in excess of the maximum of 15 persons prescribed by Article 28 of the Constitution because those Ministers of State are supernumeraries and breach “the rule of 15”, not having been appointed pursuant to Article 13.1.2 of the Constitution.

381. Relying on the observations of Budd J. in O’Donovan, including where he said that “…to say that a thing should be done in a certain fashion, is tantamount to prohibiting it from being done in any other fashion” (at p. 125) and where he referred to the “the notion of equality in political matters” (at p. 137), it was submitted that a similar “directive” was also found in Article 28.1 of the Constitution as to how the Government is to be composed. It was, therefore, argued on behalf of Deputy Murphy that, in order to give effect to the dominant constitutional principle encapsulated in the right of the People to designate their rulers as required under Article 6 of the Constitution, in the absence of something expressly stated elsewhere in the Constitution, “only the 15” appointed pursuant to Article 13.1.2 of the Constitution are entitled to meet and act in the manner prescribed by Article 28.1 of the Constitution. Accordingly, it is contended that the attendance of the Super Junior Ministers at the meetings of the Government did not have the prior approval of Dáil Éireann whereas Article 28.4.1 of the Constitution provides that “The Government shall be responsible to Dáil Éireann.”

382. Further reference, on behalf of Deputy Murphy, was made to Article 28.2 of the Constitution which requires that the executive power of the State be exercised by or on the authority of the Government. Deputy Murphy submits that the Taoiseach cannot “hollow out” from the provisions of Article 28, in the absence of a constitutional (or any legislative) provision, a process whereby he can invite Ministers of State to attend, and fully participate in, meetings of the Government.

383. We have considered whether O’Donovan properly read supports the contention urged on behalf of Deputy Murphy that it is impermissible under the Constitution to invite the relevant Ministers of State to attend and participate in meetings of Government. Having regard to the opening of Deputy Murphys’s case, and to the emphasis placed by Mr. Rogers SC on the notion of “political rights” in Professor Kelly’s second edition of Fundamental Rights in the Irish Law and Constitution (published in 1967) with reference to O’Donovan, we note that under the sub-heading of “Personal and political rights”, Professor Kelly observes (at pp. 53- 54), after earlier quoting an extract from Sullivan C.J. in In re Art.26 and the Offences against the State (Amendment) Bill, 1940 [1940] I.R. 470, 478, that:

“…[i]t is probably permissible to regard the provisions of Article 16 [of the Constitution] as expressing the citizens’ right to an equal application of the democratic principle, even though such a right is not formally declared in these words anywhere in the Constitution; and it may be noted that in the case of O’Donovan v A.G. [1961] I.R. 114 the High Court in fact impliedly enforced this political right by declaring invalid an Electoral Act which clearly infringed the provisions of this Article.”

384. Later, Professor Kelly further treats of this issue at pp. 187-192 in Chapter VIII headed “Political Rights” by reference inter alia to Articles 2, 12, 16, 18.2 and 47.3 of the Constitution, the Electoral Acts 1923 and 1963, the 1959 Act, and the cases of O’Donovan and In re Art.26 and the Electoral (Amendment) Bill, 1961 [1961] I.R. 169). From the foregoing, it is clear that the concept of equality, in the sense of a right to an equal application of the democratic principle, was core to the concept of political rights advanced by Professor Kelly in reliance on O’Donovan.

385. Much of the caselaw which followed, over the next 56 years or so, after Professor Kelly’s analysis of O’Donovan, also addressed the concept of equality and that every citizen should have the right to participate in elections on terms that are similar to those who are like positioned and every citizen should have the right to participate in referenda on the same basis. In our view, this is what was meant by “the notion of equality in political matters” in O’Donovan rather than there being any “similar directive” in Article 28.1 as to how the Government is to be composed, as contended for on behalf of Deputy Murphy. After all, in his reasoning in O’Donovan, Budd J. expressly referred to the “democratic state” and the “spirit” of provisions of Articles 5 and 40.1 of the Constitution as demanding “…equality in voting power and representation.”

386. Subsequent decisions have, in a similar way to O’Donovan, emphasised the constitutional requirement of equality in the electoral and referendum processes. Notably, in Kelly v. Minister for the Environment [2002] 4 I.R. 191 at page 218, Keane C.J. observed, for example, that “the State must in its electoral laws have regard to the concept of equality”. Likewise, in King v. Minister for the Environment (No.2) [2006] IESC 61, [2007] 1 I.R. 296 (at page 316), Murray C.J. stated that “any intervention by the State by way of legislation in the electoral process must serve a legitimate purpose, be proportionate to that purpose and avoid invidious discrimination”. Subsequently, in Doherty v. Government of Ireland [2011] 2 I.R. 222, Kearns

P. observed at p. 241 of his judgment that the “…applicant’s case relates to the effects of delay on his right to be represented by the number of members laid down by law, and the right to equality of political representation”.

387. Then, again, in McKenna v. An Taoiseach (No.2) [1995] 2 I.R. 10, the Supreme Court held that public funding could not be used to support only one side in a referendum campaign. Denham J. observed at p. 53 that “[t]here is a right to equal treatment in the political process.”

388. Finally, in Heneghan, Murray J. inter alia explained (at paragraph 117) of his judgment, that the:

“…decisions in McKenna v An Taoiseach (No.2), and indeed O’Donovan v Attorney General, show how these principles* may have a role within the democratic process, and indeed the fact of those principles is not contested by the respondent. This is because those aspects of that process have at their root a concept of equality: every citizen should have the right to participate in elections on terms that are similar to those who are like positioned and every citizen should have the right to participate in referenda on the same basis…” (*Murray J. had referred to the general constitutional principles of fairness, respect for fundamental rights, or equality).

389. Transcending the doctrine of the separation of powers is “the foundational concept” (per O’Donnell C.J.) or “grundnorm” (per Hogan J.) of “popular sovereignty”. In Re Referendum Act & re Jordan and Jordan v. Minister for Children and Youth Affairs & Ors [2015] 4 I.R.

232 (“Jordan”), O’Donnell J. observed at page 259, para. 106 that “popular sovereignty” finds expression in the People designating the rulers of the State by participation in the electoral process, as prescribed in Article 16 of the Constitution, and in deciding questions of national policy by proposing amendments to the Constitution in disparate referenda, as prescribed in Articles 46 and 47 of the Constitution.

390. Accordingly, in O’Donovan, and in subsequent case law, the Courts have identified the principle of equality as being of paramount importance, particularly in the election and referendum processes. This line of authority has, in our view, no application to the arguments made on behalf of Deputy Murphy in relation to the invitation to the Super Junior Ministers to attend and participate in the meetings of the Government. We do not see how such attendance or participation by Super Junior Ministers in meetings of Government offends against the equality rights of the electorate in circumstances where the Government remains accountable to Dáil Éireann. Such attendance or participation cannot, in our view, be said to trench on “popular sovereignty”. The participation at Government meetings of the Super Junior Ministers has no impact on the fact that the Government, composed of its 15 members, remains answerable to the Dáil.

391. In interpreting Article 28, with due regard to its distinct sub-paragraphs, holistically and harmoniously with Articles 5, 6 and 13 of the Constitution and for reasons also addressed in our judgment in Daly, we see no unlawful interference with the decision-making process of Government, the constitutional prescription that Dáil Éireann hold the Government to account or the requirement of cabinet confidentiality. While participation of the relevant Ministers of State is necessary for Government formation, we are satisfied for reasons further addressed in this judgment that Government decision-making remains the exclusive function of the 15 constitutionally appointed Ministers of Government (including the Taoiseach), that the Dáil retains its ability to hold the Government to account and that the confidentiality of the Government’s discussions is unaffected by the regular attendance and participation of Ministers of State at Government meetings.

(E) No Infringement of Article 28

392. As the evidence in this action confirms, the entire decision-making process is calibrated towards consensus decision-making by the 15 members of the Government (including the Taoiseach) who were appointed in accordance with Articles 28 and 13 of the Constitution.

393. We are satisfied that the the invitation by the Taoiseach to the relevant Ministers of State does not infringe any constitutional provision, express or implied, in relation to the taking of decisions by the members of the Government (i.e. the 15), whether those decisions are taken consensually or by roll call vote and that there is no transgression of the requirements of Article 28.

394. The 15 members of the Government (including the Taoiseach) are constitutionally entitled to be at the meeting of the Government. The evidence adduced confirms, and we have found, that these decisions are generally taken on a consensus basis by the members of the Government but, at all times, if required, a vote of the 15 members of the Government can be called. It is common case that such a vote would only involve the 15 members of the Government, albeit no instance of such a vote occurring was referred to in evidence.

395. We have also found that the attendance and participation of persons, other than the 15 members of the Government (including the Taoiseach), at the meeting of the Government does not undermine, lessen or diminish the decision taken by the constitutionally appointed members of the Government. Any such decision is still taken by the members of the Government.

396. In our view, there is simply no basis, and no evidence, for suggesting that the presence, and participation of the relevant Ministers of State at a Government meeting constitutionally detracts from the decision-making of those members of the Government.

397. As explored in further detail in our judgment in the Daly proceedings, the Constitution does not restrict, expressly or impliedly, the regular attendance (whether by custom or practice or at the invitation of the Taoiseach) and participation, where necessary, at a meeting of the Government, of the Secretary General to the Government (effectively in his role as Cabinet Secretary), the Attorney General (who is not a member of the Government as provided for in Article 30 of the Constitution) or the Chief Whip (who customarily holds the position of Minister of State at the Department of the Taoiseach and is often a Junior Minister in another Department of State). Nor does the Constitution restrict (whether regularly or on a once-off basis) the attendance and participation, at the invitation of the Taoiseach, at meetings of the Government, of individuals, other Ministers of State, officials, experts, and other persons, dealing with discrete issues of public importance which may arise from time to time. Deputy Murphy does not take issue with the attendance of these categories of persons.

398. Apart from the incongruous consequence in seeking to divine a constitutional principle which, on the one hand, restrains the identified Ministers of State (objected to by Deputy Murphy) from regularly attending and participating in Cabinet meetings but which, on the other hand, also allows another Minister of State (the Chief Whip – who will often also wear a second departmental hat), the Cabinet Secretary, the Attorney General and, on a discrete basis, other third parties, officials and others, to attend and participate in meetings of the Government, it remains the case that the attendance (whether regularly or on a once-off basis) and the participation in the discussions at Cabinet of each of these categories of persons (i.e. those objected to and those with whom no issue is taken) does not render constitutionally infirm, expressly or implicitly, any decision taken by the 15 members of the Government, whether such decision is taken consensually or by roll call vote.

399. Further, the evidence before us confirms, as we have found above, that the iterative process involved in the preparation and finalisation of “Memoranda for proposals requiring Government Decisions” and the use of the e-Cabinet computerised system, facilitates the consensus decision-making of the 15 members of Government who will make the decision on the proposals contained in the Memoranda at the Cabinet meeting. That process of preparation and finalisation of such Memoranda and their introduction at meetings of the Government is controlled by each of the 15 members of Government as the head and person in charge of the relevant Department of State.

400. The sequence followed at meetings under the chair of the Taoiseach has been the subject of findings of fact above and the relevant Ministers of State attending the meetings of the Government can participate in discussions taking place on an agenda item, if a discussion is warranted. Their role is, however, more limited by the restriction on their ability to bring Memoranda and contribute during the pre-meeting deliberative stage on eCabinet. Their absence from incorporeal meetings highlights the reality that they are peripheral to the actual

decision made because they are not members of the Government and have no decision-making authority.

401. 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.

402. In providing that the Government is responsible to Dáil Éireann (Article 28.4.1°) and not to 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.

403. 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”. As we note in Daly, 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”). The decision of O’Donnell J. in Pringle v. Government of Ireland [2013] 3 I.R. 1 (at p. 104), confirms, with regard to Article 29.4, that while it is the Government which shall conduct external relations, its reference to Article 28 emphasises that, in that respect, the Government is responsible to the Dáil. O’Donnell J. emphasises that the method the Constitution envisages for review and control of the exercise of the executive power in the conduct of foreign relations is accountability to the Dáil.

404. A related point was made by the Supreme Court in In the Matter of Article 26 of the Constitution and in the Matter of the Judicial Appointments Commission Bill 2022 [2023] IESC 34, [2024] 2 ILRM 1 (“JAC”) (at p. 66, paras. 116-117) in considering whether it was permissible for the Legislature to intervene in the executive function in the appointments of judges to the extent provided for in the Bill. The Supreme Court found no constitutional infirmity in the measures contained in the proposed Bill as there was nothing express or implicit in the Bill which required the Government to nominate a person recommended by the Commission for appointment by the President as a judge.

405. The essence of the Supreme Court’s decision in JAC was that the executive function remained intact and was not unconstitutionally compromised because the Executive retained a choice as to whether to recommend a person for appointment or not. In its reasoning as to why the measure did not constitute an impermissible invasion of a constitutionally protected zone reserved by the Constitution to the Executive, the Supreme Court attached significance to the fact that in this State the Executive is drawn from the ranks of the Legislature and is answerable to it. Further, the Supreme Court observed that as a matter of history, the Executive in this State usually has a degree of dominance over the Legislature. Accordingly, the Supreme Court concluded that the division of function imposed under the Constitution between the Executive and the Legislative is not a sharp one as the former is functionally dependant on, and constitutionally responsible to, the latter.

406. In our view, the same may be said in the context of exercise of Government power under Article 28.2 and the attendance at Government meetings of the relevant Ministers of State. First, participation at meetings of Government by the relevant Ministers of State does not detract from the decision-making power of the 15 members of Government. The decision taken at the meeting of Government remains that of the Government composed of 15 members. Second, the Executive is, in any event, functionally dependent on and accountable to the Dáil. The two spheres are fundamentally interconnected at the point of Government formation and dissolution. The participation of relevant Ministers of State in Government meetings, subject to the requirements of cabinet confidentiality, does not result in an improper interference with the division of function between the Executive and the Legislative.

407. The practical working out of the 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 F. L. v. The Minister for Justice and Equality [2012] IEHC 189 where, at paragraphs (13) and (14) of his judgment, Hogan J. emphasised that 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 Éireann. The decision in question by an official was considered to have been taken “on the authority of the Government” because it was duly authorised by the Minister and the Minister further remained answerable and politically accountable to Dáil Éireann in respect of such decision in the manner required by Article 28.4.1.

408. 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. We return to this theme in our consideration of collective responsibility in the next section of this judgment.

(F) Accountability to Dáil Éireann and Collective Responsibility

409. There is, in our view, no basis for contending that the participation of relevant Ministers of State in Government meetings diminishes the accountability of the Government to Dáil Éireann (required under Article 28.4.1º). At no point is the Government’s ultimate responsibility to account to the Dáil undermined by the participation of non-Government members in meetings of the Government and this is borne out when consideration is given to the following aspects of the doctrine: the political accountability of the Government, the collective nature of accountability and the unanimity principle, and its operation at a functional level.

(i) The political accountability of the Government

410. The 1922 Constitution and the 1937 Constitution codified the convention of collective responsibility. The provisions of Article 28.4.1º (“The Government shall be responsible to Dáil Éireann”) and Article 28.4.2º (“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”) put on a constitutional plain the political accountability of the Government.

411. The Constitution, therefore, provides that the Government is, at a general and political level, responsible and accountable to Dáil Éireann. The giving effect to this responsibility, and a recognition of popular sovereignty, means that it is the Dáil which scrutinises and debates and provides both the place and the focus for the exercise of accountability. The notion of political accountability is consistent with the manner in which the Constitution provides, in the aftermath of a General Election, that the Dáil nominates the Taoiseach who is then appointed by the President, and the President, on the nomination of the Taoiseach, and with the previous approval of Dáil Éireann, appoints the other members of the Government (subject to the constitutional provision which allows a Taoiseach who has lost a vote of confidence in Dáil Éireann to advise the President to dissolve the Dáil and hold a general election).

412. The reference in Article 28.4.2º to the requirement that the Government “shall meet and act as a collective authority” does not, therefore, mean that at a meeting of the Government only the 15 can attend and participate. Rather, the Constitution, in providing that the Government act collectively, and is responsible to the Dáil, has incorporated the political process as the main vehicle for accountability. As we set out in our judgment in the Daly proceedings, in so doing, the process of accountability (and, ultimately, its effectiveness) is necessarily subject to the vagaries of the political system which is in turn informed by a number of factors including the electoral process based on proportional representation.

413. For its part, the political system is comprised of disciplined political parties (disciplined in the sense of the application of a party whip system) and a variety of independents which, depending on the outcome of a general election, can result in a series of outcomes including (in theory) majority single party government, majority coalition government, minority single party Government, minority coalition government party, minority single party government relying on the offer of a confidence and supply arrangement from the party or parties which form the opposition and minority coalition government relying on confidence and supply arrangement from the party or parties which form the opposition.

414. From a constitutional perspective, the description of the machinery of Government is largely at a structural level (albeit with a varying level of prescription), addressing the following matters: the dissolution of the Dáil, the holding of a General Election, what occurs when the Dáil meets, the election of a Taoiseach by the Dáil and his or her appointment by the President, the appointment of the Government by the President on the nomination of the Taoiseach with the approval of the Dáil, the office of Taoiseach, Tánaiste, Minister of Finance, the appointment of members and the composition of the Government, the provision of Departments of State and their regulation (organisation and distribution of business) in accordance with law (as it happens, the 1924 Act (as amended), the conventions of collective responsibility and confidentiality, the provisions in relation to the estimates, and declaring war.

415. In contrast, and what is subject to change, is the outcome, at any one time, of the political process and the actual numerical composition of the Dáil, following a general election. This in turn informs the (i) the process of forming a Government, and (ii) the manner of its accountability to Dáil Éireann. In that regard, we adopt the following extract from Hogan, Morgan and Daly, Administrative Law in Ireland, (5th ed, p. 109) as a summary of the accountability process:

“…all of the Dáil’s powers over the Government are conditioned by the basic fact of political life which is that a Government can almost always command the support of a majority of deputies, because deputies are elected principally on the basis of which party they have pledged themselves to support in the Dáil. Normally, such is the strength of the whip system that the legislature cannot be regarded as speaking with a voice independent of the executive, and so it is realistic to characterise the central element in the Irish governmental system as a fused elective–legislature…”

416. It was more succinctly summarized by Hogan J. in Delaney v. The Personal Injuries Board & Ors [2024] IESC 10 (at paragraph 15 of his judgment) where he said that whereas “[t]he Government is accountable to Dáil Éireann (Article 28.4)”, the Oireachtas itself is subject 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”.

417. It is the very judgment of the electorate which resulted in the election of the deputies who in turn approved the nomination of the Taoiseach for appointment by the President and in turn also approved the Taoiseach’s nominees for appointment by the President as Members of Government. The same deputies have the untrammelled power to cease supporting the Taoiseach who, in negotiating the formation of Government, invited the relevant Ministers of State (that is the Super Junior Ministers) to attend and participate in Government meetings, thereby requiring the resignation of the Taoiseach and the dissolution of Dáil Éireann. Accordingly, just as the Constitution ordains, the People have the final say through the discharge by their elected representatives of their political mandate.

(ii) Collective: speaking with one voice and the principle of unanimity

418. Together Articles 28.4.1º and 28.4.2º recognise that the principal form of responsibility and accountability is ‘collective’. The reference in Article 28.4.2º to the provision that the Government “shall meet and act as a collective authority” does not mean that at a meeting of the Government only the 15 can attend and participate. Rather, it means that, as a collective authority when it meets and acts, the Government speaks with one voice. This is a recognition of the principle of unanimity.

419. In recognising unanimity as being inherent in the concept of collective, in Constitutional Law of Ireland (Second Edition, 1990), Professor Gwynn Morgan traces the basis of the convention of collective responsibility back to the First Dáil, as follows (at p. 72):

“Responsibility is collective: So far we have been considering the Government’s responsibility to the Dáil. The other aspect of the doctrine is that the responsibility is collective, in other words the Government stands or falls as a united entity. 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 . The 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 to have resigned. This rule is complemented by Article 28.4.2º 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”…Its more normal application is to underpin the rule that all ministers and all departments should speak with the same voice in public, in regard to the Government’s policy and performance…”

420. The notion that unanimity is in fact synonymous with the description of responsibility being collective reflected in the above extract is widely recognised in both the legal and political literature and evidenced in practice by the terms of the Cabinet Handbook.

421. By way of example, Hogan, Morgan and Daly, Administrative Law in Ireland, (5th ed, have observed (at p. 109, para. 3-04) that:

“The principal form of responsibility is collective. The epithet collective means, first, that the Government, as a collective authority, speaks with one voice and, secondly, that if the Taoiseach resigns from office (or is removed), the other members of the Government also leave office [f.n. Article 28.4.2º and Article 28.11.1º]. In other words, the Government stands or falls as a single, united entity. This collective system and the strict party system in the Dáil complement each other.”

422. From a political perspective, in Politics in the Republic of Ireland (Seventh. Ed, 2024, Coakley, Gallagher, O’Malley and Reidy (eds.)), Dr. Eoin O’Malley (together with Shane Martin) offers a similar analysis (Chapter 10, “The government and the Taoiseach”) as follows (at pages 291-300):

“…The unanimity principle is the idea that regardless of what positions ministers take in Cabinet discussions, once a government decision is made, all ministers are required to publicly support it and accept collective responsibility for it – or else resign from the government. This is important because it ensures that governments divided on an issue will not reveal that division and will not be weakened publicly. This is not merely a convention, but has constitutional force through Article 28.4, which stipulates that the government meets and acts as a collective authority…”

423. Referring to the occasion when there was a free vote in the Dáil with Taoiseach Liam Cosgrave and Minister Dick Burke voting against their own Government’s bill allowing for the limited sale of contraceptives in 1974, straining the unanimity principle, the authors elaborate on the importance of the unanimity principle in underpinning collective responsibility stating:

“…[t]he unanimity principle means that the Cabinet as a whole is politically responsible for the activities of the government. This has an important impact on how government operates, forcing ministers to bring politically contentious issues to Cabinet even where there is no legal requirement to do so. This limits the autonomy that ministers have to dictate policy in their own portfolios.”

424. The same point in relation to unanimity being a core element of the convention of collective responsibility, albeit challenged (if not diluted) by aspects of modern political practice, was made by Sir David Butler, in the context of the unwritten constitutional framework in the United Kingdom, as follows: “…The old doctrine survives that ‘any minister who disagrees with government policy must resign–or at least keep silent,’ for the old reason ‘we must all hang together lest we hang separately.’ But leaks about ministers’ disagreements and reservations have vastly increased, and the fact that so much less is not debated in full Cabinet means that the doctrine has been seriously eroded, even though recent decades have still seen principled resignations over collective responsibility (e.g. Heseltine 1986, Lawson 1989, Howe 1990, Cook 2003)…” (Butler, “The Changing Constitution in Context” in M. Qvortrup (ed.) (Hart Publishing, 2013), The British Constitution, Continuity and Change, A Festschrift for Vernon Bogdanor, at p. 10).

425. Evidencing practice and convention, the Cabinet Handbook for its part refers (at paragraphs

1.1 to 1.4) to “Collective Responsibility” in the context of “Submissions of matters to Government”. The political and practical context of the convention is described as follows:

“(1.1) Collective Responsibility: Submission of matters to Government The Constitution (Article 28.2) provides that the executive power of the State shall be exercised by or on the authority of the Government. Article 28.4.2º provides that: “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” (1.2) Collective responsibility requires that Ministers should inform their colleagues in Government of proposals they, or Ministers of State at their Departments, intend to announce and, if necessary, seek their agreement. This applies, in particular, to proposals for legislation that can be initiated only after formal approval by Government. Ministers must at all times support Government decisions in public debate as a responsibility of office. (1.3) Ministers and Ministers of State should be aware that Government approval is required for significant new or revised policies or strategies and in particular that approval should be sought sufficiently in advance of publication of such initiatives to allow proper consultation and consideration. This requirement arises from the nature of collective responsibility. The fact that a specific decision or function may be expressly vested in a Minister or Minister of State does not serve to set aside this requirement. (1.4) In order not to prejudice Government discussions, Ministers and Ministers of State should avoid making public statements or commenting on specific policy proposals which are to be brought to Government or which are under consideration by Government. For example, only in exceptional circumstances would it be appropriate to disclose the fact that a particular matter is due for consideration at a specific Government meeting. Nor should the details of what is being recommended to Government be divulged. In both instances, prior disclosure may limit options available to the Government to have consideration of a matter postponed or withdrawn or to amend the proposal.”

426. While the corollary of the Constitution codifying the convention of collective responsibility in Article 28.4.2º has meant that its ultimate effectiveness is subject to the outworkings of the political process, the terms of its constitutional prescription, including meeting and acting as a collective authority and its operation at a functional level does not mean that at a meeting of the Government only the 15 can attend and participate. It is that latter matter – the operation of collective responsibility at a functional level – to which we now turn.

(iii) Collective responsibility at a functional level

427. Taken together, the provisions of Articles 28.4.1º and 28.4.2º, 28.12 of the Constitution and the 1924 Act (as amended) also emphasise the requirement of collective responsibility at a functional level. In respect of the Departments of State (which are referred to in Articles 28.4.2º and 28.12 of the Constitution) each of the members of Government (which phrase is referenced in Articles 28.1, Articles 28.4.2º, 28.7.2º, 28.11.1º. 28.11.2º and 28.12) are in charge of, or head up, the Departments of State in accordance with the requirement in Article

28.12 that this is to be “in accordance with law”. This, in turn, is legislatively provided for by, inter alia, s. 2 of 1924 Act (as amended), which provides that the members of the Government are corporations sole whereas, in contrast, Ministers of State are not. The distinction reflects the difference between the constitutional status which requires ultimate accountability to Dáil Éireann from members of the Government, compared with the position of Ministers of State, whose status derives only from legislation where no such accountability exists.

428. Similarly, s. 2 of the 1977 Act creates a permissive, revocable and concurrent (shared) power for members of the Government to delegate powers to Ministers of State. Legally and practically, therefore, Ministers of State are not responsible for Departments of State. Rather, (again in accordance with the prescription that these matters are addressed “in accordance with law”), they exercise, concurrently, delegated functions pursuant to s. 2(2)(f) of the 1977 Act, which expressly provides that 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.

429. In terms of accountability, therefore, notwithstanding the shared nature of any delegated power under the 1977 Act, the member of Government (the Senior Minister) remains responsible at Government level and the Government remains accountable to the Dáil for the exercise of departmental powers.

430. The intersecting nature of these provisions with the requirements of the Constitution was recognised by the Oireachtas in providing at s. 2(2)(b) of the 1977 Act for the termination of a delegation to a Member of State if the responsible Minister of Government in charge of the Department ceases to hold that position. In our view, the clear legislative intention is to ensure that the statutory creation of Minister of State functions in a manner compatible with Article

28 and provides for the organisation and distribution of business amongst Departments of State in the manner envisaged by Article 28.12. This is achieved by framing the role of the Minister of State as one dependent on delegated functions whereby the Department remains in the charge of a duly designated, constitutionally appointed, Minister of Government.

431. When attending meetings of the Government, by virtue of constitutional and statutory provisions, members of the Government remain individually in charge of and, therefore, accountable for their respective Departments of State. In its turn, the Government collectively is accountable to the Dáil.

432. As already noted, the 1924 Act 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 a corporation sole, bears responsibility in law for its actions whether performed by the Minister or a civil servant. In Shatter v. Guerin [2019] IESC 9, McKechnie J. observed (at paragraph 22):

“…[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””.

433. In providing for the role of Minister of State, Dáil Éireann through its enactments, has ensured that it is the responsible Minister of Government who remains answerable for a Government department, even where some of his or her departmental functions have been delegated to a Minister of State, albeit one who received an allowance, provided for in law in the exercise of the Dáil’s legislative function, in respect of attendance at Government meetings.

(G) Cabinet Confidentiality

434. The arguments in relation to the cabinet confidentiality issue were not pursued in oral submissions beyond the case advanced in the Daly proceedings and, accordingly, we rely on our discussion of this issue and the reasoning for our conclusions in our judgment in the Daly proceedings.

435. As we concluded in our judgment in the Daly proceedings, the obligation to respect cabinet confidentiality under Article 28.4.3 is framed in general terms and is an obligation of general application and not one restricted to members of the Government alone.

436. 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), the Supreme Court found in Hamilton (No. 1), that confidentiality of discussions of the Government was a necessary corollary of the collective responsibility provisions of Article 28.4 of the Constitution. The Supreme Court went so far as to find that the requirements of collective responsibility implied absolute or complete confidentiality of discussions at Government meetings.

437. This absolutist interpretation of the requirements of cabinet confidentiality was ultimately found by the People to be too restrictive, leading to the amendment in the Seventeenth Amendment of the Constitution Act. On foot of this amendment what is now Article 28.4.3 of the Constitution provides specified carve outs from an absolute prohibition on disclosure of discussions at Cabinet. The exclusions enacted following the referendum fall to be strictly construed. In consequence, the dicta in Hamilton (No. 1) confirming the force, breadth of application and the purpose of the constitutional requirement of cabinet confidentiality remain authoritative.

438. The concept of cabinet confidentiality, as is clear from the judgment O’Flaherty J. in Hamilton (No.1), was part of the requirement under the Constitution of collective cabinet action and responsibility. It was this requirement of “collectivity” which led to a need for cabinet confidentiality because of a recognition that the collective should speak with one voice, excluding from wider dissemination the nature of any dissent or disagreement within Cabinet. As established by the Supreme Court in Hamilton (No.1), the concept of cabinet confidentiality was one which protected against compulsory disclosure of the contents of discussions which take place at Government meetings (see the judgment of Hederman J. at p. 275).

439. The identified purpose of cabinet confidentiality, as found in Hamilton (No.1), was to prevent the Government’s role from being undermined or destabilised and to support the separation of powers under the Constitution. In our view, it is clear that this purpose is not subverted or undermined by the attendance of and participation in Government meetings of non- Government ministers provided all in attendance are equally bound by cabinet confidentiality.

440. 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 p. 299) when referring to the possibility of the Attorney General, the Chief Whip and the Secretary to the Government being asked to give their versions of events. This can only mean that he considered that there was no conflict between confidentiality and their attendance.

441. Taken to its logical conclusion, the interpretation urged on behalf of Deputy Murphy (and by Deputy Daly in his case), would prevent the members of the Government from even having secretarial assistance present as necessary to the proper functioning of Government. As Finlay C.J. observed in Hamilton (No.1) (at p.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”.

442. The reality that Government meetings have long been supported by a secretariat cannot be ignored. To be an effective instrument of Government in the manner understood by the Supreme Court in Hamilton (No.1), the principle of cabinet confidentiality must be construed as having a broader application than to those discussions limited to the 15 members of Government alone. Any other interpretation would render the practical business of Government completely unworkable.

443. We have concluded that the requirement for confidentiality in Article 28.4.3 is not confined to the fifteen 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”. 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. The concept applies to the discussions at the meetings of the Government and confidentiality must be respected by all persons privy to the details of those discussions.

444. We conclude that is no express or implied disregard, still less a clear disregard, of cabinet confidentiality by the regular attendance and participation at Government meetings of Super Junior Ministers.

(H) Challenge to s. 3A of 1998 Act

445. As we did not find any constitutional infirmity in the attendance of Ministers of State at Government meetings, the challenge to the constitutionality of s. 3A of the 1998 Act falls away and does not require to be addressed further.

9. SUMMARY OF CONCLUSIONS

446. In this action, on the Plaintiff’s side, we heard evidence from the Plaintiff himself, Deputy Murphy, and from Shane Ross (a former member of the Dáil (and of the Seanad) and a former Minister), Finian McGrath (a former member of the Dáil and a former Super Junior Minister) as well as expert evidence from Professor Diarmaid Ferriter (Professor of Modern Irish History at University College Dublin).

447. For the Defendants, we heard evidence from the Secretary General to the Government, John Callinan, and expert evidence from Professor Eunan O’Halpin (Emeritus Professor of Contemporary Irish History at Trinity College Dublin) and Professor Andrew Blick (Professor of Politics and Contemporary History at King’s College London). In addition, Dr. Eoin O’Malley (Associate Professor in Political Science at Dublin City University) provided a witness statement on behalf of the Defendants which was accepted without the need for him to be called to give oral evidence.

448. Apart from Dr. O’Malley, all the other witnesses gave oral evidence and were subjected to cross-examination.

449. In brief summary, Deputy Murphy argued that because Super Junior Ministers are supernumeraries, their continuous attendance and participation in Cabinet meetings breaches the “rule of 15”, as they have not been appointed pursuant to the provisions of the Constitution, which is inconsistent with the political right expressed by Ireland being a democratic State and the right of the People to designate the rulers of the State in accordance with the Constitution. Therefore, it was suggested that these Super Junior Ministers are not subject to Dáil scrutiny in the same way that Members of the Government are.

450. We have determined that this challenge is justiciable. In considering Deputy Murphy’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 to Articles 5, 6, 13 and

28 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.

451. The evidence in these proceedings confirms that in 2016, 2017 and 2025, the Taoiseach was appointed in accordance with the provisions of Article 13.1.1° of the Constitution and the members of the Government were appointed in accordance with Article 13.1.2° and Article

28.1 of the Constitution and all of the necessary Dáil resolutions, warrants of appointments, seals of office and related documentation for these appointments were proved in evidence.

452. Further, each of the Ministers of State appointed in 2016, 2017 and 2025, including the Super Junior Ministers (who are the focus of these proceedings), were appointed by the Government on the nomination of the Taoiseach in accordance with s. 1 of the 1977 Act (as amended) and without the requirement for approval by Dáil Éireann.

453. Insofar as Deputy Murphy’s central argument and reliance on the 1961 decision of the High Court in O’Donovan is concerned, we consider that the designation of the rulers of the State by the People is, in the first instance, referable to the electoral process found in Article 16 of the Constitution and in the Electoral Acts and the articulation of the principle of equality. Indeed, we note that in many judgments delivered subsequent to the O’Donovan judgment in 1961, where similar arguments were employed, those decisions almost universally emphasised the concept of equality and that every citizen should have the right to participate in elections on terms that are similar to those who are like positioned and every citizen should have the right to participate in referenda on the same basis.

454. Turning to the question of decision-making, the 15 members of the Government (including the Taoiseach) are constitutionally entitled to be at meetings of the Government. The evidence in the case confirms that decisions taken by the members of Government are generally taken on a consensus basis by them but at all times, if required, a roll call vote of the 15 members of the Government can be called. It is accepted by Deputy Murphy that such a vote would only involve the 15 members of the Government. The attendance and participation by the Super Junior Ministers at meetings of the Government, therefore, does not undermine the decisions taken by the members of the Government, constitutionally appointed.

455. That this is so, is also borne out by the following findings we have made:

(i) The evidence before us confirmed that the iterative process involved in the preparation and finalisation of “Memoranda for proposals requiring Government Decisions” and the use of the e-Cabinet computerised system was geared towards the consensus

decision-making of the 15 members of Government who decide these matters as they arise on the agenda at Cabinet meetings;

(ii) The evidence describing the process of the preparation and finalisation of such Memoranda and their introduction at meetings of the Government confirms that it is controlled solely by each of the 15 members of Government as the head and person in charge of the relevant Department of State;

(iii) The regular attendance at meetings of the Government, and, where necessary, their participation in discussions, of the Chief Whip (who is a Minister of State, often assigned to two Departments), the Secretary General to the Government (who fulfils the role of the Cabinet Secretary), and the Attorney General (who is not a member of the Government) or the attendance and participation on a discrete basis of other third parties and officials, does not render constitutionally infirm, either expressly or impliedly, any decision taken by the 15 members of the Government, whether such

decision is taken consensually or by roll call vote. It is noted that neither Deputy Murphy nor Deputy Daly (in his proceedings) takes issue with the attendance of the Chief Whip, the Cabinet Secretary or the Attorney General at Cabinet meetings;

(iv) At incorporeal meetings, only the 15 members of Government are telephoned, there is no discussion and they are asked whether they agree with a particular proposed

decision. Ministers of State (including Super Junior Ministers) are never telephoned and asked their views at an incorporeal meeting because they are not members of the Government and have no decision-making role.

456. Further, we do not consider that the presence of the relevant Ministers of State, at the invitation of the Taoiseach, breaches the doctrine of collective responsibility or the accountability of the Government to the Dáil (Articles 28.4.1 and Articles 28.4.2). The giving effect to this responsibility, and a recognition of popular sovereignty, means that it is the Dáil, through the political system and process, which scrutinises and debates and provides both the place and the focus for the exercise of accountability. This remains the case whether or not the Super Junior Ministers attend and participate at Cabinet meetings.

457. Similarly, as we have explained in our judgment in this case and in the related case brought by Deputy Daly, the obligation to respect cabinet confidentiality under Article 28.4.3 is framed in general terms and is an obligation of general application and not one restricted to members of the Government alone but applies to the Super Junior Ministers’ attendance and participation in the discussions at Cabinet meetings and to everyone else attending those meetings.

458. Accordingly, we do not consider that the Defendants have breached any express, or implied, constitutional constraint, limitation or prohibition by inviting the relevant Ministers of State (that is, the Super Junior Ministers) to attend and participate in meetings of the Government. The clear disregard standard in this instance is, therefore, not dispositive of the question raised by Deputy Murphy, as we do not consider that the invitation to those Ministers of State, by the Taoiseach, to attend and participate at Cabinet meetings, as part of an agreement in the formation of the Government, disregards any provision of the Constitution, either clearly or implicitly.

459. In those circumstances, we reject all the claims made by Deputy Murphy in the proceedings and we must dismiss his action in its entirety.

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

APPEARANCES

John Rogers SC, Paul Gunning BL and Molly Higgins BL appeared for the Plaintiff instructed by KM Solicitors.

Rossa Fanning SC (Attorney General), Catherine Donnelly SC, David Fennelly SC, Francis Kieran BL and Emma Synnott BL appeared for the Defendants instructed by the Chief State Solicitor.