In two recent judgments of the High Court, Daly v. An Taoiseach & Ors [2025] IEHC 729 and Murphy v. An Taoiseach & Ors [2025] IEHC 730 the court considered constitutional challenges to the practice of allowing certain Ministers of State (commonly referred to as "Super Junior Ministers") to regularly attend and participate in meetings of the Irish Government (Cabinet). In these judgments, the High Court confirmed the need for clear statutory authority, proportionality of regulatory measures, and respect for procedural fairness in appointing such ministers. Both cases were heard sequentially by the same High Court panel and raise fundamentally the same issues, though with some differences in evidence, procedure, and emphasis.
The applicants in both cases are sitting members of the Dáil They contended that the regular attendance and participation of Super Junior Ministers at Cabinet meetings breaches Article 28 of the Constitution, particularly the "rule of 15" (Article 28.1), which limits the Government to no more than 15 members appointed by the President. The applicants argued that this practice undermines collective responsibility, cabinet confidentiality, and Dáil accountability, and that it amounts to an unconstitutional circumvention of the constitutional limit on the size of Government. The applicants also challenged the constitutionality of s. 3A of the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998 (as amended), which provides for additional allowances for Ministers of State who regularly attend Cabinet.
The Government argued that the Constitution does not regulate attendance at Cabinet meetings, only membership of Government; that Ministers of State are not members of Government; and that their attendance is a matter of political discretion for the Taoiseach, supported by longstanding practice and statute.
While the High Court handed down two separate judgments, there were a number of common features, as between the judgments including:
1. The actions were justiciable: the courts have jurisdiction to determine if Government practices breach constitutional provisions, applying the "clear disregard" standard (from Boland .v. An Taoiseach [1974] I.R. 338 and subsequent cases).
2. Only the 15 constitutionally appointed Ministers (including the Taoiseach) are members of Government; Super Junior Ministers are not members of Government and are not appointed by the President. The Court noted that there was no evidence that more than 15 members had been appointed as Ministers.
3. The Constitution does not expressly or impliedly restrict attendance at Cabinet meetings to the 15 members of Government. Attendance by others (including the Attorney General, Chief Whip, Secretary to the Government, and Super Junior Ministers) is not constitutionally precluded, provided they are not members of Government and do not have decision-making powers.
4. There are clear legal and functional differences between Ministers of Government and Ministers of State. Ministers of State cannot submit memoranda to Cabinet, do not have voting rights, are not part of incorporeal meetings, and act under delegated authority from a full Minister, who remains responsible to the Dáil.
5. The presence and participation of Super Junior Ministers does not undermine the collective authority or responsibility of the Government, nor does it affect the Government's accountability to the Dáil. Decisions remain those of the 15 members of Government, and the Dáil retains ultimate control.
6. Cabinet confidentiality applies to all persons attending Government meetings, not just members of Government. The Constitution does not require that only the 15 members be present for confidentiality to apply.
7. The payment of additional allowances to Super Junior Ministers is not unconstitutional, as it is expressly provided for in legislation approved by the Oireachtas.
8. Both judgments note the longstanding practice, both in Ireland and in comparable jurisdictions, of non-members attending Cabinet meetings.
Both judgments adopted a holistic, harmonious interpretation of the Constitution, considering the overall constitutional architecture, historical and political context, and the need for practical governance. The Court emphasised the requirement for clear statutory authority for the appointment of Super Junior Ministers. While not specifically referenced by the Court, it appears that they were mindful of the immense workload of the Cabinet and the requirement for senior ministers to delegate certain delineated and authorised tasks to Super Junior Ministers. The Court reaffirm the distinction between the constitutional membership of Government and attendance at Cabinet meetings, upholding the Taoiseach's discretion (subject to constitutional limits) to invite non-members to attend, and confirmed that the constitutional requirements of collective responsibility, Dáil accountability, and cabinet confidentiality are not infringed by the regular attendance and participation of Super Junior ministers.
