Murphy v An Taoiseach & Ors [2025] IEHC 730 – Constitutional Validation of “Super Junior Ministers” and the Limits of Judicial Review of Cabinet Composition

Murphy v An Taoiseach & Ors [2025] IEHC 730 – Constitutional Validation of “Super Junior Ministers” and the Limits of Judicial Review of Cabinet Composition

1. Introduction

In Murphy v An Taoiseach & Ors [2025] IEHC 730, a three‑judge divisional High Court (Barniville P., Phelan J. and Bradley J.) dismissed a constitutional challenge brought by Deputy Paul Murphy TD to the long‑standing practice of allowing certain Ministers of State (“Super Junior Ministers”) to attend and participate regularly in meetings of the Government.

The judgment, delivered alongside the related decision in Daly v An Taoiseach [2025] IEHC 729, is a significant restatement of:

  • the constitutional status of Ministers of State vis‑à‑vis members of the Government,
  • the meaning of Article 28.1’s “rule of fifteen” (7–15 members of Government),
  • the doctrine of collective responsibility and Cabinet confidentiality under Article 28.4, and
  • the “clear disregard” standard for judicial intervention in the internal operations of the Executive.

Deputy Murphy argued that by permitting three Super Junior Ministers (alongside the Chief Whip) to attend and fully participate in Cabinet, the Government had effectively created de facto extra members of the Government, thereby breaching:

  • Article 28.1 (numerical limit of Government members),
  • Article 28.4.1°–4° (collective responsibility, Cabinet meetings and confidentiality; estimates process), and
  • Articles 5, 6 and 13.2 (democratic character of the State and the People’s right to designate the “rulers of the State”).

The State contended that:

  • the internal organisation and procedures of Government are, in principle, non‑justiciable save in cases of “clear disregard” of the Constitution,
  • Ministers of State are not members of Government in either constitutional or statutory terms, and their attendance (without voting rights or decision‑making power) does not offend Article 28, and
  • legislation (notably s. 3A of the 1998 Act on allowances) and long‑standing Irish and comparative practice support the attendance of non‑members at Cabinet without altering the constitutional composition of Government.

The Court rejected all of Deputy Murphy’s claims, holding that the attendance and participation of Super Junior Ministers at Cabinet does not unlawfully increase the number of members of Government, does not dilute collective responsibility or Dáil accountability, and does not breach Cabinet confidentiality. The challenge to s. 3A of the 1998 Act therefore also failed.

2. Factual and Procedural Background

2.1 The practice challenged

The proceedings focused on the practice, in three Governments, of appointing up to four Ministers of State who regularly attend Cabinet:

  • 30th Government (2016) – Taoiseach Enda Kenny,
  • 31st Government (2017) – Taoiseach Leo Varadkar, and
  • 35th Government (2025) – Taoiseach Micheál Martin.

In each case:

  • 15 members of Government (including the Taoiseach) were nominated by the Taoiseach, approved by Dáil Éireann, and appointed by the President in accordance with Articles 13.1.1°, 13.1.2° and 28.1;
  • the Attorney General was appointed by the President on the nomination of the Taoiseach (Article 30.2);
  • on the same day, at the first meeting of the new Government held in Áras an Uachtaráin, the Government, on the Taoiseach’s nomination, appointed a number of Ministers of State under s. 1 of the Ministers and Secretaries (Amendment) (No.2) Act 1977 (“the 1977 Act”), including “Super Juniors” designated to attend Cabinet.

Notably:

  • Ministers of Government received warrants of appointment and seals of office from the President;
    Ministers of State did not.
  • The Taoiseach’s speech to the Dáil on Government formation always clearly distinguished:
    • the 14 nominees for appointment as Government Ministers,
    • the proposed Attorney General, and
    • the intended Ministers of State (some of whom would attend Cabinet).

2.2 Parties and evidence

Deputy Murphy gave evidence that as a TD he could not clearly identify “who is actually in the Government” when Super Junior Ministers attended Cabinet and shaped outcomes, which he considered to undermine democratic accountability and Cabinet confidentiality.

He relied on:

  • Shane Ross – former Cabinet Minister (Transport, Tourism and Sport), who served from 2016–2020;
  • Finian McGrath – former Super Junior Minister (Disability), attending Cabinet from 2016–2020;
  • Professor Diarmaid Ferriter – historian, who traced the historical development of collective responsibility and Cabinet secrecy from the revolutionary period and Civil War through to the 1937 Constitution and the 17th Amendment.

The State called:

  • John Callinan – Secretary General to the Government (Cabinet Secretary), principal factual witness explaining Government formation, Memoranda for Government, eCabinet, Cabinet meetings, and Cabinet Committees;
  • Professor Eunan O’Halpin – historian of Irish government, attesting to long‑standing practice of non‑Cabinet participants at Cabinet (Parliamentary Secretaries, Chief Whip, Attorney General, extern ministers, special advisers);
  • Professor Eoin O’Malley – political scientist (written evidence, not cross‑examined), on comparative use of junior ministers and Cabinet practice in other democracies;
  • Professor Andrew Blick – UK constitutional historian, on the historic and contemporary practice of non‑Cabinet attendance at Cabinet in the UK.

2.3 Key factual findings about Cabinet practice

The Court made detailed findings, including:

  • The 15 members of Government have a constitutional right to attend Cabinet; they cannot be excluded by the Taoiseach.
  • Ministers of State – including Super Junior Ministers – attend by political arrangement and invitation from the Taoiseach; they have no legal right to attend.
  • Government decisions are overwhelmingly made by consensus; no evidence of voting at Cabinet for many years. If a vote were taken, only the 15 members of Government would vote.
  • eCabinet and Memoranda for Government:
    • Only members of Government can submit Memoranda for Government via eCabinet.
    • Only members of Government can submit written observations on draft Memoranda.
    • Ministers of State have no eCabinet access for that deliberative phase; they receive only finalised Memoranda, as a courtesy, before meetings.
  • Incorporeal meetings (decisions taken without an in‑person meeting – e.g. by phone):
    • Only the 15 Government members are contacted and asked to agree or disagree with the proposal.
    • Ministers of State, including Super Juniors, are not contacted.
  • Blue‑slip attendance records for Cabinet meetings clearly distinguish:
    • the 15 Government members (numbered 1–15),
    • Ministers of State (listed separately),
    • Attorney General, Cabinet Secretary and Assistant Secretary.
  • Cabinet Committees (preparatory, not decision‑making bodies) frequently include Ministers of State and other non‑Cabinet actors; they shape proposals but do not take Government decisions.

Crucially, the Court found that, despite their active participation in discussions, Super Junior Ministers:

  • could not submit Memoranda for Government in their own right;
  • could not formally make observations on Memoranda;
  • were not part of incorporeal meeting decisions; and
  • held only delegated statutory functions, not constitutional authority as members of Government.

3. Summary of the Judgment

The Court held that:

  1. The challenge is justiciable: the Courts can review whether Executive practice in relation to Cabinet composition and procedures contravenes the Constitution, but only in cases of “clear disregard” of an express or implied constitutional mandate.
  2. No breach of Article 28’s “rule of 15”:
    • Article 28.1 limits membership of Government to 7–15 members; it does not prohibit the attendance of non‑members at Cabinet.
    • Super Junior Ministers are not members of Government in law or fact; they do not count towards the 15, and their presence does not create “extra” Government members.
  3. No breach of collective responsibility or Dáil accountability (Article 28.4.1°–2°):
    • Government decisions are taken by the 15 members of Government, normally by consensus; decision‑making authority is not transferred to or shared with Ministers of State.
    • Ministers of Government remain in charge of Departments of State under the Constitution and the Ministers and Secretaries Acts.
    • Delegation of functions to Ministers of State under s. 2 of the 1977 Act does not displace the Government Minister’s responsibility to the Dáil.
    • The Government as a whole remains responsible to Dáil Éireann under Article 28.4.1°; the attendance of Super Junior Ministers does not dilute this accountability.
  4. No breach of Cabinet confidentiality (Article 28.4.3°):
    • The obligation of Cabinet confidentiality applies to “discussions at meetings of the Government” and binds all persons privy to those discussions, not only members of Government.
    • Having non‑members in the room does not undermine confidentiality, provided they respect it – as required by the Constitution.
  5. Political rights / O’Donovan argument rejected:
    • The “political rights” line of authority (e.g. O’Donovan, McKenna, King, Doherty, Heneghan) concerns equality in electoral and referendum participation, not the composition of Cabinet meetings.
    • The People’s right to “designate the rulers of the State” (Article 6) is respected by the electoral system (Article 16) and the requirement that Dáil Éireann nominate and approve members of Government; the presence of Super Junior Ministers at Cabinet does not affect this.
  6. No clear disregard of the Constitution:
    • Even applying the stringent “clear disregard” standard, the Court found no express or implied constitutional prohibition on the attendance of Super Junior Ministers at Cabinet.
    • Accordingly, there was no constitutional basis to invalidate the practice or to strike down s. 3A of the 1998 Act (which provides extra allowances for Ministers of State who regularly attend Cabinet).
  7. The action was dismissed in its entirety. No constitutional relief was granted.

4. Legal and Constitutional Framework

4.1 Constitutional provisions

Key provisions considered included:

  • Article 5 – Ireland is a sovereign, independent, democratic State.
  • Article 6 – all powers of government derive from the People; the People have the right to designate the “rulers of the State” and to decide questions of national policy.
  • Article 13.1.1°–2° – appointment of the Taoiseach and other members of the Government by the President, on the nomination of Dáil Éireann (Taoiseach) and on the Taoiseach’s nomination with Dáil approval (other Ministers).
  • Article 28.1 – the Government shall consist of not less than seven and not more than fifteen members, appointed by the President in accordance with the Constitution.
  • Article 28.2 – the executive power of the State 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 shall be collectively responsible for the Departments of State administered by the members of the Government.
  • Article 28.4.3° (inserted by the 17th Amendment) – Cabinet confidentiality: discussions at Government meetings shall be confidential, subject only to limited exceptions ordered by the High Court.
  • Article 28.4.4° – the Government shall prepare and present estimates of receipts and expenditure to Dáil Éireann annually.
  • Article 28.12 – organisation and distribution of business among Departments of State, and designation of members of the Government in charge, shall be regulated in accordance with law.
  • Article 30.2 – the Attorney General is appointed by the President on the nomination of the Taoiseach.

4.2 Statutory framework

  • Ministers and Secretaries Act 1924:
    • Established Departments of State.
    • Provided that Ministers in charge of Departments are corporations sole – they personify the Department and bear legal responsibility.
  • Ministers and Secretaries (Amendment) (No.2) Act 1977 (as amended):
    • Allows the Government, on the nomination of the Taoiseach, to appoint Ministers of State (junior ministers) – currently up to 23 (increased by the 2025 Act).
    • s. 2 permits concurrent delegation of statutory functions from a Government Minister to a Minister of State:
      • delegations are revocable,
      • they do not remove or derogate from the Government Minister’s responsibility to Dáil Éireann.
    • Importantly, after 1977 only a “Minister of the Government” can be in charge of a Department; “Minister of State” is a separate, purely statutory category.
  • Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998 (“1998 Act”), s. 3A:
    • Expressly recognises “Ministers of State who regularly attend meetings of the Government”.
    • Authorises special allowances for up to four such Ministers of State (originally three, increased to four by the 2025 Act) in addition to their ministerial salaries and other entitlements.
  • Other legislation and regulations (e.g. Public Service Management Act 1997, S.I. No. 182/1997 on traffic exemptions) reflect and accommodate the role of Ministers of State, including enhanced provisions for those who regularly attend Cabinet.

5. Precedents and Authorities Considered

5.1 O’Donovan v Attorney General [1961] I.R. 114 and political equality

In O’Donovan, the High Court (Budd J.) struck down the Electoral (Amendment) Act 1959 for breaching Article 16.2.3° of the Constitution, which requires that, “so far as practicable”, the ratio of population to TDs be the same across constituencies. The 1959 Act substantially over‑represented some rural areas over urban ones.

Budd J. linked:

  • Article 5 (democratic State),
  • Article 16.2.3° (equal representation), and
  • Article 40.1 (equality before the law),

to articulate a notion of political equality in electoral representation. His remark 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” has become well‑known in discussions of constitutional directives.

Subsequent case law (cited in Murphy) built on this political‑equality theme, particularly in the electoral and referendum context:

  • McKenna v An Taoiseach (No.2) [1995] 2 I.R. 10 – State funding cannot be used to support one side in a referendum campaign.
  • Kelly v Minister for the Environment [2002] 4 I.R. 191 – electoral laws must have regard to the concept of equality.
  • King v Minister for the Environment (No.2) [2007] 1 I.R. 296 – electoral interventions must serve a legitimate purpose and avoid invidious discrimination.
  • Doherty v Government of Ireland [2011] 2 I.R. 222 – undue delay in holding a by‑election infringed equality of political representation.
  • Heneghan v Minister for Housing [2023] 3 I.R. 419 – reaffirmed that these principles have a role specifically within the electoral and referendum process, grounded in equality.

In Murphy, Deputy Murphy sought to extend this O’Donovan‑based “political rights” reasoning from electoral equality to Cabinet composition, arguing that Article 28.1’s specification of how Government must be composed impliedly prohibited any other arrangement (i.e. any participation by non‑members in Cabinet decision‑making).

The Court rejected this extension, holding that:

  • the political‑equality principle identified in O’Donovan and its progeny applies to the electoral and referendum processes,
  • the People’s right to designate the rulers of the State is given effect primarily through elections (Article 16) and the Dáil’s role in nominating and approving the Government,
  • the presence of Super Junior Ministers at Cabinet, without decision‑making power, does not interfere with that process.

5.2 Boland, Crotty, Burke, Costello – justiciability and “clear disregard”

The Court drew on a line of Supreme Court authority holding that:

  • the Courts may review Government action alleged to breach the Constitution, but
  • where the Constitution entrusts an area to the Executive, the Courts will intervene only where there is a “clear disregard” of an express or implied constitutional mandate.

Key cases:

  • Boland v An Taoiseach [1974] I.R. 338 – Fitzgerald C.J. accepted that the Courts could not supervise ordinary policy choices but might intervene where there was a clear disregard of constitutional powers or duties.
  • Crotty v An Taoiseach [1987] I.R. 713 – the Supreme Court held that Title III of the Single European Act would improperly transfer or constrain the Government’s foreign affairs powers; Government could not “abdicate, alienate or subordinate” those powers without constitutional change.
  • Burke v Minister for Education [2023] 2 I.R. 1 – O’Donnell C.J. reaffirmed that while some Executive actions affecting constitutional rights are fully reviewable, claims that the Government exceeded its proper role under the Constitution fall under the “clear disregard” standard.
  • Costello v Government of Ireland [2022] IESC 44 – O’Donnell C.J. reviewed and explained the clear disregard doctrine in the context of the Government’s decision to ratify CETA.

In Murphy, the Court held:

  • The issue is justiciable: the Courts can adjudicate on alleged breaches of Articles 28, 5, 6 and 13 arising from Cabinet practice.
  • However, because this is a challenge to how the Government organises and exercises its executive powers (rather than a direct rights‑infringement case), the clear disregard standard applies.
  • On the facts, there was no such disregard; the practice of inviting Super Junior Ministers to attend Cabinet fell well within the Government’s constitutional discretion.

5.3 Hamilton (No.1) and the 17th Amendment – Cabinet confidentiality

In Attorney General v Hamilton (No.1) [1993] 2 I.R. 250, the Supreme Court held that Cabinet confidentiality was an implied constitutional requirement, absolute in nature, arising from collective responsibility under Article 28.4. The decision was politically controversial and prompted the 17th Amendment, which inserted Article 28.4.3°, allowing for limited judicially‑authorised disclosure of Cabinet discussions.

In Murphy the Court:

  • treated the core reasoning in Hamilton as still authoritative: Cabinet confidentiality is integral to collective responsibility and political stability;
  • stressed that Article 28.4.3° now codifies confidentiality and prescribes specific, narrow exceptions (by High Court order);
  • held that the obligation of confidentiality applies to all persons privy to Cabinet discussions, not only to Government members.

Accordingly, allowing Super Junior Ministers, the Attorney General, the Cabinet Secretary and others to be present at Cabinet meetings does not breach Article 28.4.3°, provided that they respect the same constitutional duty of confidentiality.

5.4 Pringle and JAC – Executive powers exercised “by or on the authority of the Government”

The Court also drew on:

  • Pringle v Government of Ireland [2013] 3 I.R. 1 – where O’Donnell J. explained that Article 29.4.1° (foreign relations) must be read with Article 28: external executive power is exercised by or on the authority of the Government, which remains accountable to the Dáil.
  • In re Article 26 and the Judicial Appointments Commission Bill 2022 [2023] IESC 34 (“JAC”) – the Supreme Court held that proposed statutory procedures for judicial appointments did not unconstitutionally intrude on the Executive’s appointment function, because the Government retained the final choice whether or not to nominate a person for appointment by the President.

These cases illustrate a key theme in Murphy:

  • what matters constitutionally is where ultimate decision‑making authority lies,
  • participation, advice, or constraints do not necessarily usurp executive power if the Executive retains the final decision.

By analogy, the presence and participation of Super Junior Ministers at Cabinet does not “alienate” or “transfer” executive power from the Government; decisions remain those of the 15 constitutionally appointed members, accountable to the Dáil.

5.5 F.L. v Minister for Justice and Shatter v Guerin – departmental responsibility

In F.L. v Minister for Justice and Equality [2012] IEHC 189, Hogan J. held that decisions made by civil servants under delegated authority are taken “on the authority of the Government” where duly authorised by the responsible Minister, who remains answerable to the Dáil under Article 28.4.1°.

In Shatter v Guerin [2019] IESC 9, McKechnie J. emphasised that individual ministerial powers and responsibilities are subject to Article 28.4.2°; the Government is “collectively responsible for the Departments of State”.

Murphy relies on the same architecture:

  • Ministers of Government, as corporations sole, are in charge of Departments (1924 Act) and bear ultimate responsibility.
  • Ministers of State may exercise concurrent delegated powers, but this does not remove or derogate from the Government Minister’s responsibility to Dáil Éireann (s. 2(2)(f) 1977 Act).
  • Accordingly, even where a Minister of State (such as a Super Junior) is politically influential and active in a policy area (e.g. disability), constitutional responsibility rests with the Government Minister and, collectively, the Government.

6. The Court’s Legal Reasoning

6.1 Justiciability and “clear disregard”

The Court held that:

  • Questions about whether Cabinet practice fails to comply with Articles 28, 5, 6 and 13 are not immune from judicial scrutiny; the Executive is a creature of the Constitution.
  • However, because the Constitution gives the Government broad discretion about how to organise its internal operations, the Courts must not supervise or micro‑manage such matters; they may intervene only where there is a clear disregard of an express or implied constitutional mandate.
  • This standard reflects the concern that even the process of judicial review can itself interfere with executive freedom of action in constitutionally consigned areas.

Framing Deputy Murphy’s case as one alleging that the Government had exceeded its proper constitutional role (rather than violated a specific right), the Court applied the clear disregard test and concluded that:

  • no provision in Articles 5, 6, 13 or 28 expressly prohibits the attendance of non‑members at Cabinet;
  • there is no necessary implication that only members of Government may be present when Government meets and acts as a collective authority;
  • given the evidence about how decisions are taken, there was certainly no “clear disregard” of any constitutional mandate.

6.2 Distinguishing Ministers of Government from Ministers of State

A central plank of the Court’s reasoning is the sharp legal distinction between:

  • Ministers of Government (constitutional office‑holders under Articles 13 and 28), and
  • Ministers of State (purely statutory office‑holders under the 1977 Act).

Key differences, as found by the Court, include:

Aspect Government Ministers Ministers of State (incl. Super Juniors)
Legal basis Constitution (Articles 13, 28) Statute (1977 Act, as amended)
Appointment By President, on Taoiseach’s nomination with Dáil approval By Government, on Taoiseach’s nomination; no Dáil vote; no presidential warrant
Seal of office Yes (from President) No
Departmental role Head of Department of State; corporation sole Supports Minister; may exercise delegated functions concurrently
Right to attend Cabinet Constitutional entitlement; cannot be excluded Attends only by invitation/political agreement; no legal right
Memoranda for Government Can submit and present via eCabinet; can make observations Cannot submit; no facility to make observations via eCabinet; receives finalised versions only
Decision‑making Participates in consensus; if voting occurs, full voting rights No vote; cannot participate in incorporeal decisions
Accountability to Dáil Constitutionally responsible; subject to confidence of Dáil No direct constitutional responsibility; political accountability only through the Government Minister
Allowances Standard ministerial salary/entitlements Special allowance under s. 3A 1998 Act for those who regularly attend Cabinet

On this basis, the Court held that the factual premise of Deputy Murphy’s case – that Super Junior Ministers are “in all respects” treated as members of Government – was untenable legally and factually. Political influence and visibility cannot be equated with constitutional status.

6.3 Decision‑making, collective responsibility and Article 28

Article 28.4.2° requires that the Government “meet and act as a collective authority” and be collectively responsible for the Departments of State administered by its members. Deputy Murphy argued that if non‑members participate meaningfully in Cabinet deliberations, the collective authority of the 15 is undermined and the “rule of 15” is evaded.

The Court rejected this, for several reasons:

  • Decision‑making remains with the 15:
    • Decisions at Cabinet are made by consensus among the 15 members of Government; there was no evidence of any decision being determined by non‑members.
    • If a vote were ever taken, only the 15 could vote.
    • In incorporeal meetings, only the 15 are consulted and decide.
  • Memoranda system focuses decision authority on Government Ministers:
    • Only Ministers of Government can submit Memoranda for Government and receive and respond to observations.
    • The iterative eCabinet process is specifically designed to give effect to collective responsibility amongst the 15, by ensuring that each proposal has been considered and commented on by the relevant Ministers before the meeting.
    • Ministers of State are structurally excluded from this decision‑formation process, reinforcing the distinct status of the 15.
  • Collective responsibility is about unanimity, not exclusivity of physical presence:
    • Drawing on constitutional text, historical practice and political science, the Court treated “collective authority” as synonymous with the unanimity principle: once a Government decision is made, all Ministers of Government must support it publicly or resign.
    • Article 28.4.2° does not stipulate that only the 15 may be present in the room; rather it prescribes how the Government, as a collegiate body, must act and present itself.
    • Non‑members (including the Attorney General, Chief Whip, Cabinet Secretary, other Ministers of State, officials, and experts) have long attended specific Cabinet discussions without undermining collective responsibility.
  • Accountability to the Dáil remains intact:
    • The Government is responsible to Dáil Éireann (Article 28.4.1°); if the Dáil withdraws confidence, the Taoiseach must resign and the Government falls.
    • Delegated ministerial functions do not remove responsibility from the Government Minister; the Minister and the Government as a whole remain accountable.
    • The political character of this accountability – shaped by proportional representation, party discipline, coalition arrangements – is constitutionally contemplated and not altered by Cabinet attendance practices.

6.4 Cabinet confidentiality (Article 28.4.3°)

Deputy Murphy contended that the presence of Super Junior Ministers at Cabinet meetings inherently weakens Cabinet confidentiality and thus collective responsibility, because discussions are no longer confined to the 15 constitutionally appointed members.

The Court disagreed:

  • Article 28.4.3° mandates that the confidentiality of “discussions at meetings of the Government” be respected “in all circumstances”, subject only to the explicit High Court‑ordered exceptions.
  • The duty of confidentiality attaches to the discussions and to all persons present and privy to them, not only to Government members.
  • Historical practice shows that non‑members (e.g. Attorney General, Parliamentary Secretaries, Chief Whip, senior officials) have long attended Cabinet without any suggestion that their presence per se breached confidentiality.
  • As Finlay C.J. warned in Hamilton (No.1), Cabinet confidentiality must not be interpreted so rigidly as to make Government practically unworkable; excluding all non‑members (including secretarial support) would be such an impractical construction.

Thus, the Court held that Cabinet confidentiality is preserved so long as all attendees, including Super Junior Ministers, respect the constitutional obligation of non‑disclosure.

6.5 Rejection of the “popular sovereignty” / O’Donovan theory

Deputy Murphy’s argument, drawing heavily on O’Donovan and commentary on “political rights”, ran essentially as follows:

  • As a democratic State (Article 5), with all governmental powers deriving from the People (Article 6), the Constitution embodies a principle that the People designate the “rulers of the State” via the electoral process and the Dáil’s approval of Government members.
  • Article 28.1, specifying that the Government shall consist of 7–15 members, must be read, in light of O’Donovan, as a directive: Government may only be composed in this way, and any departure (by including de facto additional members through Cabinet attendance) is prohibited.
  • Allowing Super Junior Ministers, not approved by Dáil Éireann as Government members, to participate in Cabinet decisions circumvents the People’s designation of rulers and breaches Articles 5, 6, 13 and 28.

The Court’s answer was twofold:

  1. Political equality doctrine is confined to elections and referenda:
    • O’Donovan and its successors enforce equal voting and representational rights – that each citizen’s vote count equally, and each citizen have fair representation.
    • They do not support a generalised requirement that only persons appointed in one prescribed way can have any influence or participation in executive deliberations.
  2. Popular sovereignty is honoured through the existing constitutional scheme:
    • The People elect the Dáil (Article 16),
    • Dáil Éireann nominates the Taoiseach and approves the other members of Government (Articles 13.1.1°–2°),
    • the Taoiseach and Government remain dependent on the confidence of the Dáil (Article 28.10–11), and
    • the Government is responsible to the Dáil (Article 28.4.1°).

Nothing in the attendance of Super Junior Ministers alters those fundamental dynamics; they do not become “rulers of the State” in constitutional terms. Their political influence may be considerable – particularly in fragile coalition arrangements – but that is a political, not a constitutional, fact.

6.6 Section 3A of the 1998 Act

Since the Court held that the underlying practice – Ministers of State regularly attending Cabinet – is constitutionally permissible, it followed that s. 3A of the 1998 Act, which grants them special allowances for such attendance, is not unconstitutional. The Court therefore did not have to engage in any separate, detailed analysis of s. 3A: the challenge failed on its premise.

7. Complex Concepts Explained in Plain Terms

7.1 Members of Government v Ministers of State

  • Member of Government (Minister):
    • Appointed by the President, after Dáil approval.
    • Constitutionally recognised (Article 28.1).
    • In charge of a Department; legal “face” of the Department.
    • Automatically entitled to sit at Cabinet and take part in decisions.
  • Minister of State (Junior Minister):
    • Appointed by the Government under statute (1977 Act).
    • Helps the Minister, often with a specific portfolio (e.g. Disability).
    • May be delegated some legal powers, but the Minister remains in charge.
    • Has no automatic right to attend Cabinet; may be invited, especially as a “Super Junior Minister”.

7.2 “Clear disregard”

“Clear disregard” means:

  • The Government has gone plainly outside what the Constitution allows or requires.
  • It is not enough that the Court would have made a different policy choice; there must be a clear clash with the Constitution’s rules or structure.
  • This high threshold protects the Government’s space to make policy and manage its internal affairs, while still allowing Courts to intervene where the Government truly steps beyond constitutional bounds.

7.3 Collective responsibility and unanimity

“Collective responsibility” means:

  • The Government stands or falls together as a team.
  • Even if Ministers disagree privately in Cabinet, once a decision is taken, they must support it publicly or resign.
  • The Government, not individual Ministers, is politically accountable to the Dáil for its overall performance.

The “unanimity principle” is simply the idea that Government presents a united front publicly. It does not mean no one else can be in the room; it means the 15 Ministers of Government must own the decisions.

7.4 Memoranda for Government and eCabinet

  • A Memorandum for Government is a formal written proposal from a Minister to the Cabinet seeking a decision (e.g. to approve draft legislation, a policy change, or a significant expenditure).
  • Drafts are circulated via eCabinet, a secure electronic system, to other Government Ministers, who can add written observations.
  • The sponsoring Minister must respond to observations, and the finalised Memorandum (including responses) is what comes to Cabinet for discussion and decision.
  • Ministers of State do not participate in this process on eCabinet; they see only the finalised document.

7.5 Incorporeal meetings

An “incorporeal meeting” is a Cabinet decision taken without a physical meeting – typically where time is short:

  • The Cabinet Secretary contacts each of the 15 Ministers of Government (by phone or otherwise).
  • Each Minister indicates agreement or disagreement with a proposal.
  • There is no discussion; it is essentially a remote vote among the 15.
  • Ministers of State are not contacted; they do not take part in incorporeal decision‑making.

7.6 Corporation sole

A “corporation sole” is a legal device by which a single office‑holder (like a Minister of Government) is treated as a continuing legal person distinct from the natural person currently in office. It ensures that:

  • the Department’s rights, obligations and property persist as Ministers change;
  • legal actions can be brought in the name of the Minister, even though the individual may change over time.

8. Assessment of Evidence and Use of History/Comparative Practice

The Court placed considerable reliance on factual and expert evidence about how Government actually works and how similar issues have been handled historically and in other jurisdictions.

  • Historians (Ferriter & O’Halpin):
    • Ferriter traced the origins of Cabinet secrecy and unity to the Civil War and early Free State period, where Government stability under threat led to a premium on collective responsibility and confidentiality.
    • O’Halpin showed that from 1919 onwards, various non‑Cabinet actors (extern ministers, Parliamentary Secretaries, Chief Whips, the Attorney General, senior officials, and special advisers) have attended Cabinet meetings.
    • Both accepted that Cabinet collective responsibility and secrecy co‑existed with non‑member attendance in practice.
  • Comparative evidence (O’Malley & Blick):
    • O’Malley documented the trend across democracies towards larger governments, more junior ministers, and Cabinet committees and sub‑Cabinets being primary loci of decision‑making.
    • Blick detailed UK Cabinet practice – also allowing non‑Cabinet attendees (junior ministers, law officers, civil servants, experts) both historically and today.
  • Cabinet Secretary (Callinan):
    • Gave unchallenged evidence on the mechanics of:
      • Government formation,
      • appointment of Ministers and Ministers of State,
      • the Memoranda/eCabinet system,
      • Cabinet Committees,
      • incorporeal meetings,
      • attendance records and seating plans.
    • His evidence was critical in demonstrating that decision‑making power remains with the 15 Ministers of Government.

The Court used this material not to dilute constitutional norms but to:

  • fill out how collective responsibility and Cabinet confidentiality are implemented in practice;
  • demonstrate that inviting non‑members to attend Cabinet has deep historical roots and is compatible with constitutional principles;
  • show that the People, when adopting Article 28.4.3° in 1997, did so in a context where non‑member attendance at Cabinet was already a known and accepted practice.

9. Impact and Significance

9.1 Constitutional doctrine

The judgment’s main doctrinal contributions are:

  • Clarification of Article 28.1: the provision caps the number of members of Government; it does not create an exclusive right of attendance at Cabinet meetings. Membership and attendance are distinct concepts.
  • Scope of Cabinet confidentiality: Article 28.4.3° binds all persons present at Cabinet, not only Ministers of Government. The Government can invite non‑members without breaching confidentiality.
  • Collective responsibility and unanimity: the Court reinforces that collective responsibility is fundamentally about the Government speaking and being accountable as a united entity; it does not require that only the 15 can be in the room or contribute to discussions.
  • Clear‑disregard standard reaffirmed in the context of internal Cabinet procedure: Courts will be very slow to intervene in the way the Government organises its deliberations, absent a clear constitutional prohibition.
  • Limits of the “political rights” doctrine: the “political equality” principles from O’Donovan, McKenna, King, Doherty, and Heneghan are explicitly confined to elections and referenda; they cannot readily be transposed to internal Executive arrangements.

9.2 Practical consequences for government practice

In practical terms:

  • The long‑standing practice of appointing “Super Junior Ministers” who attend Cabinet is now expressly endorsed as constitutionally valid.
  • The statutory scheme (1977 Act, 1998 Act, 2025 amendments) providing for Ministers of State who attend Cabinet and receive extra allowances sits comfortably with the Constitution.
  • Future challenges to Cabinet attendance or internal Government decision‑making structures will face a high threshold; they must demonstrate not just arguable unfairness or political concern, but a clear breach of a constitutional rule.
  • Political remedies – negotiation, coalition agreements, parliamentary scrutiny, and ultimately electoral accountability – are underscored as the appropriate mechanisms for contesting the political influence of non‑Cabinet actors.

9.3 Broader constitutional culture

The decision also reflects and reinforces a particular view of the Irish constitutional order:

  • Popular sovereignty is central, but is mediated through representative institutions and political processes, not through judicial micro‑management of executive structures.
  • The Executive is powerful but not unbounded; key constraints (Dáil confidence; collective responsibility; Cabinet confidentiality; judicial enforcement where there is clear constitutional breach) remain intact.
  • The Constitution is interpreted holistically: Articles 28, 5, 6 and 13 are read together with statutory developments and historical practice, rather than in isolation.

10. Conclusion

Murphy v An Taoiseach is an important modern authority on the structure and functioning of Government under the Irish Constitution. It confirms that:

  • the constitutional “rule of 15” concerns the number of members of Government, not the number of people physically present at Cabinet meetings;
  • Ministers of State – even when styled “Super Juniors” and regularly attending Cabinet – remain statutory office‑holders wielding delegated powers under the supervision of Ministers of Government;
  • collective responsibility, Cabinet confidentiality and Dáil accountability are not undermined by the presence and participation of such Ministers of State at Cabinet;
  • politically contentious features of coalition government formation (including the allocation of Cabinet access) are generally to be resolved through political mechanisms, not constitutional litigation, unless a clear constitutional prohibition is breached.

By marrying detailed factual findings with a careful, holistic reading of the Constitution and precedent, the Court has effectively constitutionalised the long‑standing practice of Super Junior Ministers while preserving the core concepts of collective responsibility, Cabinet confidentiality and popular sovereignty. The decision narrows the space for future structural challenges to the internal workings of Government and emphasises that, in this domain, constitutional law sets the outer boundaries within which politics must do most of the work.

Case Details

Year: 2025
Court: High Court of Ireland

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