Membership vs Attendance: Daly v An Taoiseach and the Constitutional Validity of “Super Junior” Ministers at Cabinet

Membership vs Attendance: Daly v An Taoiseach and the Constitutional Validity of “Super Junior” Ministers at Cabinet

1. Introduction

Daly v An Taoiseach & Ors [2025] IEHC 729 is a three-judge High Court decision (Barniville P., Phelan J., Bradley J.) which confronts, for the first time in a focused way, the constitutional status of “Super Junior” Ministers of State who regularly attend and participate in meetings of the Government (“Cabinet”).

The applicant, Deputy Patrick Daly TD, challenged the long‑standing practice whereby a small number of Ministers of State (currently up to four) are:

  • appointed under the Ministers and Secretaries (Amendment) (No. 2) Act 1977,
  • invited by the Taoiseach to attend meetings of the Government on a regular basis,
  • given access to Cabinet papers and allowed to contribute to discussions (though not to vote), and
  • paid a special additional allowance under s. 3A of the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998.

Deputy Daly contended that this practice:

  • circumvents the “rule of 15” in Article 28.1 of the Constitution (which provides that the Government shall consist of not fewer than seven and not more than fifteen members appointed by the President),
  • undermines the constitutional principles of collective responsibility (Article 28.4.2°) and Government accountability to Dáil Éireann (Article 28.4.1°), and
  • breaches Cabinet confidentiality (Article 28.4.3°).

He also mounted a contingent challenge to the constitutionality of s. 3A of the 1998 Act (as amended in 2025), which authorises additional allowances for up to four Ministers of State “who regularly attend meetings of the Government”.

Parallel plenary proceedings brought by Deputy Paul Murphy TD, attacking the same practice from somewhat different angles, were heard immediately after Daly and decided in a separate judgment, Murphy v An Taoiseach [2025] IEHC 730. The Court stresses that both judgments should be read together; Daly, however, stands as a self‑contained and authoritative articulation of the constitutional status of Ministers of State attending Cabinet.

2. Summary of the Judgment

2.1 Justiciability

The State argued that the internal workings of Government meetings fall within the non‑justiciable “political” realm. The Court rejected this:

  • The Government is a creature of the Constitution and must act within constitutional limits (Crotty v An Taoiseach; Boland v An Taoiseach; McKenna (No. 2); Burke).
  • Where the Constitution prescribes aspects of the Executive (including composition and conduct of Government under Article 28), compliance is ultimately reviewable by the courts.
  • Accordingly, whether the practice of Super Junior attendance breaches Article 28 is a justiciable question (paras. 160–167).

2.2 Applicable Standard: “Clear Disregard”

Following Boland, McKenna (No. 2) and especially Burke v Minister for Education, the Court held:

  • This is a “structural” challenge (alleged breach of express or implied constitutional mandates concerning the Executive), not an interference with an individual right.
  • In such cases, executive action remains primarily accountable to the Dáil, and the courts may intervene only where there is a clear disregard of an express or implied constitutional mandate (paras. 193–199).
  • Before asking whether there has been clear disregard, the Court must first identify, by interpretation, whether the Constitution in fact imposes any express or implied prohibition on the practice (paras. 199–201).

2.3 No Breach of Article 28.1: Membership vs Attendance

On the central “rule of 15” issue, the Court found:

  • Article 28.1 regulates the composition of the Government (who are members of Government), not who may attend Government meetings (paras. 168–171, 238–239).
  • In the 35th Government, only 15 persons (including the Taoiseach) were appointed as members of the Government by the President pursuant to Article 13.1.2° in conformity with Article 28.1 (paras. 181–183, 348–351).
  • Ministers of State are a statutory creation under the 1977 Act, appointed by the Government, not the President; they:
    • do not require Dáil approval,
    • receive no presidential warrant or seal of office,
    • cannot have charge of a Department of State,
    • exercise only delegated powers concurrently and under the “general superintendence and control” of a Government Minister (s.2, 1977 Act), and
    • have no vote at Cabinet and cannot bring Memoranda to Government in their own name (paras. 31, 184–187, 247–250, 288–293).
  • Therefore, no breach of Article 28.1 arises merely because Ministers of State attend and participate at meetings. They are not “members of the Government” for constitutional purposes (paras. 191, 351–353).

2.4 Collective Responsibility and Accountability to the Dáil

On Articles 28.4.1°–2°:

  • The Government remains collectively responsible to Dáil Éireann and collectively responsible for Departments of State administered by members of the Government (paras. 254–260, 284–290).
  • Decisions at Government meetings are taken by consensus (or, if necessary, by vote of the 15 Government members); Ministers of State do not vote and cannot participate in incorporeal (written) Government decisions (paras. 183–190, 245, 291).
  • Departmental accountability remains anchored in the Minister of Government who, as corporation sole under the 1924 Act and Article 28.12, personifies the Department and is answerable to the Dáil despite any delegation to Ministers of State (paras. 248–250, 284–293).
  • Attendance and participation by Ministers of State in Cabinet discussions do not erode:
    • the Government’s collective authority, or
    • the Dáil’s political power to remove the Government under Article 28.10 (paras. 241–252, 276–283, 326–329).
  • Thus there is no express or implied breach of collective responsibility or Dáil accountability, nor any clear disregard of Article 28.4.1°–2°.

2.5 Cabinet Confidentiality

On Article 28.4.3° (as inserted by the 17th Amendment, following Hamilton (No. 1)):

  • Confidentiality attaches to “discussions at meetings of the Government” and must be “respected in all circumstances” save for the limited High Court exceptions (paras. 85, 90, 331).
  • This confidentiality:
    • is not limited to the 15 Government members, but binds all persons present (including the Attorney General, the Secretary to the Government, the Chief Whip and Ministers of State) who are privy to Cabinet discussions (paras. 334, 338–341);
    • is designed to protect full, free and frank discussion and preserve the stability and functioning of Government (Hamilton (No. 1), cited at paras. 255, 331–335).
  • A narrow reading – that confidentiality only protects discussions amongst the 15 and that any non‑member presence invalidates a “meeting of the Government” – would be incompatible with:
    • the long‑standing and necessary presence of secretariat staff, the Attorney General and the Chief Whip; and
    • the practical needs of government (paras. 335–337, 339–341).
  • Accordingly, the presence of Ministers of State at Cabinet does not violate cabinet confidentiality; they are simply additional persons bound by the same constitutional obligation.

2.6 Validity of the Statutory Allowances

Because the underlying practice of attendance and participation by Ministers of State is constitutional:

  • The Court held that s. 3A of the 1998 Act (as amended) authorising additional allowances for up to four Ministers of State “who regularly attend meetings of the Government” is likewise constitutional (paras. 101–104, 157, 256, 305–318, 356).
  • The requirement that the Oireachtas legislate, and specifically that the Dáil approve additional expenditure, supplies a further constitutional check via Articles 11 and 17 (Collins v Ireland, applied at paras. 320–324).

2.7 Result

The application for judicial review was dismissed in full:

  • No breach (and certainly no clear disregard) of any express or implied constitutional provision was established.
  • All declaratory and related reliefs sought by Deputy Daly were refused (paras. 343–357).

3. Analysis

3.1 Precedents and Authorities Shaping the Decision

3.1.1 Boland, Crotty and the Limits of Judicial Review of the Executive

The Court’s starting point is the classic line of authority on when courts may review executive action:

  • Boland v An Taoiseach [1974] IR 338 confirmed that:
    • the Executive enjoys a wide political discretion in areas such as foreign policy and internal governance;
    • however, where the Constitution lays down express or implied limits, the courts can intervene if those limits are clearly disregarded.
  • Crotty v An Taoiseach [1987] IR 713 reaffirmed that neither Government nor Oireachtas can free themselves from constitutional constraints; they are “creatures of the Constitution” (para. 161).

These cases underpin the High Court’s insistence that while the political merits of inviting Super Junior Ministers to Cabinet are for the Dáil and electorate, the constitutionality of the practice is for the courts – but subject to the “clear disregard” threshold (paras. 160–167, 193–199).

3.1.2 McKenna (No. 2), McCrystal and Democratic Fairness

In McKenna v An Taoiseach (No. 2) [1995] 2 IR 10 and McCrystal v Minister for Children [2012] 2 IR 726, the Supreme Court prohibited the Government from using public funds to campaign on one side of a referendum:

  • The People’s sovereignty (Preamble; Article 6) and the democratic nature of the State (Article 5) require that the State apparatus not skew the electoral playing field.
  • Those cases dealt with direct interference with the popular decision‑making process.

Daly invoked these authorities to argue that public funds should not support a practice he characterised as “anti‑democratic”. The High Court distinguished them sharply:

  • Funding Super Junior Ministers, pursuant to statute and Dáil approval, does not distort any constitutional referendum process.
  • It falls squarely within the legislative control of public spending that McKenna and Collins emphasise – not outside it (paras. 309–318).

3.1.3 Burke and Costello: The “Clear Disregard” Standard Re‑affirmed

Burke v Minister for Education [2023] 2 IR 1 provides the modern synthesis of the clear‑disregard doctrine:

  • Where the Constitution specifies institutional arrangements for the Executive (e.g. appointments, treaty‑making, war powers), the courts may review Executive conduct, but:
    • if the complaint is that the Executive exceeded its structural role, the court intervenes only on proof of a clear disregard of an express or implied mandate;
    • if the complaint concerns infringement of personal constitutional rights, the usual proportionality and rights‑analysis applies (paras. 196–197).

In Costello v Government of Ireland [2022] IESC 44, O’Donnell CJ (in dissent as to result) reiterated that the clear‑disregard standard is not a universal shield for Government action; it applies only in structural separation‑of‑powers disputes.

Daly’s claim was quintessentially structural: that the Government’s internal meeting practices infringed the constitutionally prescribed structure of Article 28. The Court therefore applied the clear‑disregard standard, requiring a very high threshold for judicial intervention (paras. 193–200, 198–199).

3.1.4 Heneghan, O’Shea and Curtin: Holistic Constitutional Interpretation

The Court’s interpretive approach is heavily influenced by Heneghan v Minister for Housing [2023] IESC 7, which stresses:

  • Constitutional provisions must be read as a whole and in their broader context.
  • Interpretation involves more than literal reading of isolated words; it requires:
    • harmonising connected provisions,
    • examining both Irish and English texts, and
    • focusing on underlying purpose (paras. 105–108, 200–204).

Cases like People v O’Shea [1982] IR 384 and Curtin v Dáil Éireann [2006] 2 IR 556, cited by Daly for a literal reading of the “rule of 15”, are recalibrated in light of Heneghan: literal clarity does not mean that a provision can be read in isolation from context and purpose.

Applying this holistic method, the Court insists on examining Article 28.1 alongside:

  • Articles 28.2 (executive power),
  • 28.4.1°–3° (responsibility and confidentiality),
  • 28.7 (membership of Government drawn from Oireachtas),
  • 28.10 – 28.12 (resignation, continuity, and regulation by law), and
  • broader provisions on democracy and Dáil financial control (Articles 5, 6, 16, 17, 29.5).

3.1.5 Hamilton (No. 1) and the 17th Amendment: Cabinet Confidentiality

Attorney General v Hamilton (No. 1) [1993] 2 IR 250 recognised an implied constitutional doctrine of Cabinet confidentiality as a corollary of collective responsibility. The 17th Amendment (inserting Article 28.4.3°) partially codified and limited this doctrine, allowing:

  • High Court‑ordered disclosure in the interests of the administration of justice; and
  • disclosure on application by a duly‑authorised public inquiry where an overriding public interest justifies it (para. 331).

Hamilton remains the touchstone for the purpose of Cabinet confidentiality:

  • to secure full, free and frank discussion;
  • to ensure Government speaks with one voice; and
  • to protect the separation of powers (paras. 255, 331–335).

The Daly Court uses this backdrop to reject the idea that confidentiality is a device to exclude non‑members from the Cabinet room. On the contrary, the confidentiality obligation:

  • protects the deliberations themselves, and
  • binds all who are present, not only the 15 Ministers.

3.1.6 Collins and Fiscal Control by the Dáil

In Collins v Ireland [2013] 4 IR 522, the Supreme Court examined emergency legislation enabling enormous financial guarantees during the banking crisis. It distilled core constitutional principles:

  • Budgetary autonomy and responsibility lie with the Dáil (Articles 5, 11, 17, 28) (paras. 95–96 quoted at para. 324 of Daly).
  • This responsibility cannot be abdicated, but:
  • the Constitution does not micromanage the budget process; rather it sets key control points (Article 11, 17) and lets the Oireachtas work out the detail (paras. 320–325).

Daly uses Collins to highlight:

  • Any additional expenditure for Super Junior Ministers requires legislation (s. 3A, 1998 Act),
  • which must be initiated and approved under the ordinary constitutional budgetary framework.

Thus, far from being a covert circumvention of constitutional limits, the allowances are expressly authorised by an Act of the Oireachtas, itself subject to Dáil scrutiny and electoral accountability.

3.1.7 Indian Case Law: Rodrigues v State of Goa Distinguished

Deputy Daly urged reliance on Adv. Aires Rodrigues v State of Goa (Bombay High Court, 2009), where appointments of “Parliamentary Secretaries with Cabinet rank” were struck down as evading Article 164(1A) of the Constitution of India, which caps the size of the Council of Ministers (including ministers of state) at 15% of the State Assembly.

The Irish High Court carefully distinguishes Rodrigues (paras. 297–308):

  • In India, the constitutional cap applies to the aggregate “Council of Ministers” (inner Cabinet and other ministers), and the impugned “Parliamentary Secretaries”:
    • had Cabinet rank in all but name; and
    • lacked a clear statutory basis.
  • In Ireland:
    • Article 28.1 caps only the membership of the Government (i.e. the Cabinet), not the broader set of office‑holders who may attend meetings;
    • Ministers of State are firmly grounded in statute (1977 Act et seq.), which:
      • limits their powers to delegated functions, and
      • preserves the senior Minister’s responsibility to the Dáil (s.2(2)(f));
    • They do not have equivalent rank or full ministerial status; their “status” is not indistinguishable from that of Cabinet Ministers.

Hence, the Indian example could not be straightforwardly transplanted to Irish constitutional law.

3.2 The Court’s Legal Reasoning in Detail

3.2.1 The Constitutional Schema for Government (Article 28)

The Court reconstructs the architecture of Article 28:

  • Article 28.1: Numerical cap – the Government shall consist of not less than seven and not more than fifteen members appointed by the President.
  • Article 28.2: Executive power shall, subject to the Constitution, be exercised by or on the authority of the Government.
  • Article 28.4.1°: The Government shall be responsible to Dáil Éireann.
  • Article 28.4.2°: The Government shall meet and act as a collective authority and be collectively responsible for Departments of State administered by members of the Government.
  • Article 28.4.3°: Cabinet confidentiality.
  • Article 28.7: Membership of Government drawn from the Oireachtas.
  • Article 28.10–11: Government’s dependence on Dáil confidence; automatic resignation of other Ministers when the Taoiseach resigns.
  • Article 28.12: Organisation and distribution of departmental business, designation of Ministers in charge of Departments, and remuneration of Government members are to be regulated by law.

The Court’s key move is to distinguish:

  • the constitutional concept of Government membership (a body of up to 15), from
  • the practical business of Government meetings, which has always involved a wider circle: civil servants, the Attorney General, the Chief Whip, occasional expert attendees, and now Super Junior Ministers (paras. 168–179, 238–243, 319).

3.2.2 The “Rule of 15” Properly Understood

Daly argued that Article 28.1’s cap must be read as a hard ceiling on the number of persons who may “participate” in Government deliberations, not just those formally appointed as members. The Court rejects this on several grounds:

  1. Textual and structural reading:
    • Article 28.1 speaks expressly of the composition of the Government and the President’s appointments.
    • It says nothing about attendance at meetings or the presence of officials or advisers.
    • Articles 28.4.1°–2° refer to the Government as a body of responsibility, but do not purport to regulate which other persons may be present when it “meets and acts”.
  2. Historical practice:
    • From 1919, non‑Cabinet figures such as Parliamentary Secretaries, the Attorney General and other advisers have attended Cabinet meetings, sometimes regularly (paras. 168–174, 208–215).
    • At the time of the 17th Amendment, the People approved constitutional text on Cabinet confidentiality against a background of known practice of non‑members attending Cabinet. They did not restrict or forbid this (para. 34).
  3. Practical consequences:
    • A literal reading confining attendance purely to the 15 would make Government almost unworkable, precluding even a secretariat or the Attorney General from being present to advise or minute discussions (paras. 335–337).

Thus, the “rule of 15” is strictly about who can be made a member of Government by the President, not about who may be present or participate in discussions at Government meetings.

3.2.3 The Distinct Legal Status of Ministers of State

The Court methodically sets out the differences between Government Ministers and Ministers of State (paras. 31, 184–187, 288–295):

  • Source of office:
    • Government Ministers derive directly from the Constitution (Article 28) and are appointed by the President following Dáil approval.
    • Ministers of State are statutory creations under the 1977 Act, appointed by the Government on nomination by the Taoiseach; they are not appointed by the President and need no Dáil vote.
  • Departmental position:
    • Only Government Ministers may be “in charge of” a Department of State and act as corporation sole.
    • Ministers of State exercise only delegated powers concurrently with the senior Minister, under his or her general superintendence and control (s.2(2)(d), 1977 Act).
  • Parliamentary and Cabinet rights:
    • Government Ministers have a constitutional right of audience in the Houses (Article 28.8) and cannot be excluded from Cabinet meetings.
    • Ministers of State:
      • have a right of audience only under Standing Orders (revocable by simple majority),
      • may attend Cabinet meetings only by invitation and can be excluded,
      • cannot vote at Cabinet and do not participate in incorporeal Government decisions.
  • Decision‑making role:
    • Only Government Ministers:
      • may submit Memoranda for Government,
      • receive draft Memoranda and make formal pre‑meeting observations via the eCabinet system.
    • Super Junior Ministers:
      • receive only finalised Memoranda (for information, not for formal written input),
      • may present items and contribute in discussion, but only where sponsored by a senior Minister who owns the Memorandum.

These distinctions are decisive in the Court’s rejection of the contention that Super Juniors are “in all but name” members of Government. They are not; their status remains that of subordinate, statutory office‑holders assisting Ministers, despite strong political influence.

3.2.4 Collective Responsibility, Popular Sovereignty and Dáil Control

The Court places collective responsibility within the broader framework of popular sovereignty and democratic accountability (paras. 222–237, 254–283):

  • Popular sovereignty: All powers derive from the People (Article 6) and must be exercised only through the organs of State created by the Constitution (Buckley v Attorney General; McCrystal).
  • Dáil as primary check:
    • The Government is responsible to Dáil Éireann (Article 28.4.1°) and must retain its confidence (Article 28.10).
    • The Dáil controls budgetary allocation and appropriation (Articles 11, 16, 17, 20–21, 29.5).
    • This makes the Dáil the primary protector of democratic control over the Executive.
  • Collective responsibility:
    • The Government must “meet and act as a collective authority” and is “collectively responsible” for Departments of State administered by its members (Article 28.4.2°).
    • As Hamilton (No. 1) emphasised, this implies:
      • a single Government voice to the outside world,
      • an internal obligation to accept Cabinet decisions as collectively taken, and
      • non‑disclosure of dissenting views.

The Court then reasons:

  • The presence of Ministers of State at Cabinet does not alter the identity of those who are collectively responsible (the 15 Ministers) or those whom the Dáil can dismiss by withdrawal of confidence.
  • Ministers of State, as TDs, exercise their own democratic mandate in supporting or opposing Government measures in the Dáil – a matter for political, not judicial, accountability (paras. 276–283, 318).

On this analysis, inviting Ministers of State into the Cabinet room does not “dilute” collective responsibility or shift accountability away from the People or their representatives.

3.2.5 Cabinet Confidentiality and the Scope of Article 28.4.3°

The Court re‑frames Daly’s confidentiality argument. Daly reasoned:

  1. Only meetings attended solely by the 15 constitutionally‑appointed Government members can be “meetings of the Government” within Article 28.4.2°.
  2. Article 28.4.3° protects confidentiality only at such valid meetings.
  3. Therefore, the regular presence of Ministers of State undermines the constitutional regime of Cabinet confidentiality.

The Court rejects this as misconceived (paras. 331–341):

  • The Constitution’s concern is with protecting the confidentiality of discussions held at Government meetings, not with restricting who may be present.
  • The obligation to respect confidentiality is framed in broad terms (“in all circumstances”) and would be pointless if it did not apply to all persons privy to those discussions.
  • Historical and contemporary practice presupposes the presence of:
    • the Attorney General,
    • the Secretary to the Government,
    • the Chief Whip,
    • and occasionally other officials and experts,
      • all of whom must plainly be bound by confidentiality.
  • The Judiciary in Hamilton (No. 1) itself assumed the legitimacy of such attendance (para. 337).

Consequently, the Court sees no constitutional reason why Ministers of State, once invited, should not simply join the same circle of confidentiality.

3.2.6 Statutory Allowances and Legislative Endorsement

Finally, on the challenge to s. 3A of the 1998 Act, the Court emphasises (paras. 101–104, 305–318, 320–327):

  • The Oireachtas has plenary authority, subject to the Constitution, to regulate:
    • the number of Ministers of State (s.1, 1977 Act), and
    • their remuneration and allowances (s.3A, 1998 Act and related provisions).
  • The legislative requirement for an order to increase the number of Super Juniors entitled to allowances:
    • ensures that the political system – not the courts – is the primary arena for contesting whether there are “too many ministers” or “too many allowances”, and
    • reflects the Dáil’s ongoing control over public finances.
  • Given that the underlying practice of attendance is constitutional, there is no separate constitutional infirmity in remunerating Ministers of State for that work.

3.3 Impact and Broader Significance

3.3.1 Consolidation of the Super Junior Practice

Daly (read with Murphy) effectively constitutionalises – or at least validates – a practice that has been politically contested but legally untested:

  • Executive practice confirmed: The Government may invite up to four (or more, if legislation changes) Ministers of State to attend Cabinet regularly and to participate fully in discussions, provided that:
    • they are not presented or treated as “members of Government”, and
    • formal decision‑making remains with the 15.
  • Legislative freedom preserved: The Oireachtas remains free to:
    • alter the maximum number of Ministers of State,
    • adjust who may receive Super Junior allowances, and
    • modify or even abolish the practice by statute or political choice.

3.3.2 Clarifying the Boundary Between Law and Politics

The judgment carefully demarcates:

  • Non‑negotiable constitutional constraints:
    • the President may appoint no more than 15 members of Government (Article 28.1);
    • Government remains collectively responsible to the Dáil; and
    • Government must retain Dáil confidence.
  • Political questions:
    • how many Ministers of State there should be;
    • whether they should attend Cabinet and what influence they should have; and
    • what allowances are politically justifiable.

Under Daly, courts will not police the fine‑grained political design of government formation negotiations (e.g. the decision to “reward” certain TDs with enhanced roles), so long as the outcomes respect the core constitutional architecture.

3.3.3 The Rule of 15 Re‑interpreted

The case has a lasting interpretive legacy:

  • The “rule of 15” is now clearly a rule about presidential appointments, not a ceiling on how many persons may shape Cabinet deliberations.
  • Any future argument that more than 15 people “effectively” constitute Government will face a high evidential and legal bar, given Daly’s emphasis on:
    • formal appointments,
    • voting rights,
    • control of Memoranda, and
    • departmental responsibility.

3.3.4 Strengthening Holistic Constitutional Methodology

Daly is also notable for method:

  • It deepens the Supreme Court’s recent turn, in Heneghan, Burke and Collins, towards:
    • purposive, contextual interpretation,
    • heavy reliance on the Irish text, and
    • a strong focus on democratic structure and fiscal accountability.
  • It confirms that structural challenges to the Executive must clear the “clear disregard” bar and will be assessed in light of:
    • the People’s sovereign role via elections and referendums; and
    • the Dáil’s primary function as the check on the Government.

3.3.5 Cabinet Confidentiality Extended and Stabilised

The decision solidifies the understanding that:

  • Cabinet confidentiality binds all attendees, not just Ministers.
  • This reinforces the ability of Government to receive advice from officials and experts without jeopardising the confidentiality regime, while also ensuring those advisors are constitutionally bound not to disclose discussions.

4. Complex Concepts Simplified

4.1 “Clear Disregard” of the Constitution

“Clear disregard” is a judicial standard used when reviewing how the Executive exercises powers that the Constitution largely leaves to its discretion:

  • If the Constitution gives the Government very broad room to act (for example, in foreign affairs or internal organisation), the courts do not substitute their own opinion on what is “best”.
  • They will only intervene if the Government has blatantly crossed a clear constitutional red line – for example, ignoring an explicit requirement that a treaty be approved by the Dáil, or that no more than 15 members be appointed to Government.

In Daly’s case, the key question is not whether the Court might have organised Cabinet differently, but whether the Government’s practice plainly contradicts any express or implied constitutional rule. The Court concludes that it does not.

4.2 Collective Responsibility

Collective responsibility means:

  • The Government acts and speaks as one unit (even if Ministers privately disagreed at Cabinet).
  • The Government as a whole is answerable to the Dáil for the actions of individual Ministers and Departments.
  • If the Taoiseach loses the confidence of the Dáil, the whole Government falls (Article 28.10–11).

It is a political and constitutional glue that binds the Cabinet together and connects it to parliamentary control.

4.3 Cabinet Confidentiality

Cabinet confidentiality:

  • Protects what is said at Cabinet meetings, so that Ministers (and others present) can argue, disagree and explore options freely, without fear of public exposure of their contributions.
  • Ensures that, once decisions are made, the Government speaks with one voice, not as a collection of individual dissenters.

Under Article 28.4.3°, Cabinet discussions are confidential “in all circumstances” except:

  • where the High Court orders disclosure in the interests of justice in a court case; or
  • where an authorised public inquiry successfully applies to the High Court for disclosure in the overriding public interest.

Everyone in the room at Cabinet – including Ministers of State, the Attorney General and officials – is bound by this constitutional duty of silence about what was said.

4.4 Ministers of State and Delegated Functions

Ministers of State (“junior ministers”) are:

  • TDs or Senators appointed to assist a Government Minister in specified areas;
  • given certain powers and duties under statute, but always on the basis of delegation from a senior Minister (s.2, 1977 Act);
  • subject to the senior Minister’s control, and unable to displace his or her final legal and political responsibility.

In law, even when a Minister of State makes a decision (e.g. signing an order under a delegated power), the senior Minister remains responsible to the Dáil for that decision. This is how the system preserves both efficiency (through delegation) and accountability (through the senior Minister).

4.5 Incorporeal Government Meetings

“Incorporeal” meetings are decisions taken by the Government without physically meeting in the Cabinet room – typically by written circulation or electronic means. They:

  • still count as Government decisions;
  • involve only the 15 Government members; and
  • reinforce the distinction drawn by the Court: Ministers of State have no role in formal decision‑making even if they attend regular in‑person Cabinet meetings.

5. Conclusion

Daly v An Taoiseach is a pivotal judgment in the constitutional law of Government in Ireland. It holds that:

  • The Constitution’s “rule of 15” in Article 28.1 limits the number of members of Government whom the President may appoint; it does not regulate who may attend or contribute to Government meetings.
  • Ministers of State – including Super Juniors – are constitutionally distinct from Government Ministers:
    • they are statutory office‑holders,
    • exercise only delegated powers,
    • cannot vote at Cabinet, and
    • do not undermine the collective authority of the 15.
  • Government accountability to the Dáil and the principle of collective responsibility are preserved:
    • the Government remains answerable to the Dáil as a body; and
    • responsibility for Departments of State remains with Ministers of Government.
  • Cabinet confidentiality binds all attendees at Government meetings, not merely Ministers. Its purpose is to protect the deliberations, not to limit attendance strictly to the 15.
  • Legislative provisions authorising additional allowances for Super Junior Ministers are constitutional, as they operate within the Dáil‑controlled framework of public expenditure.

In doctrinal terms, the case deepens the “clear disregard” doctrine in structural challenges, embeds a holistic and purposive constitutional interpretive method, and clarifies the democratic logic of Article 28: the People govern through a Government accountable to their elected Dáil, while the detailed design of Cabinet practice is largely a matter for politics and legislation, not judicial micro‑management.

The practical upshot is that the long‑criticised but politically convenient institution of Super Junior Ministers attending Cabinet is confirmed as constitutionally permissible, so long as the formal boundaries between membership, responsibility and decision‑making remain respected. Any further reform of the size, shape or composition of the Government is left, in the first instance, to the political process and, at its outer limits, to the People through constitutional amendment.

Case Details

Year: 2025
Court: High Court of Ireland

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