A CASE TAKEN by Sinn Féin TD Pa Daly challenging the constitutionality of the presence of so-called “super junior ministers” in government meetings has been brought “with a curious mixture of indolence and haste”, according to Attorney General Rossa Fanning, who is defending the government.

Daly is asking the High Court to declare the attendance of four Ministers of State, or “super junior ministers”, at government meetings unconstitutional as there is a the constitution limits the number of cabinet members to 15.

During his opening argument in the case yesterday, Feichín McDonagh, SC, for Daly, outlined that the main element of the case is that there is no legal definition that outlines the role of ‘super junior ministers’, under the constitution or otherwise.

Today, Fanning said Daly first brought up the issue of attendance by super junior meetings at government meetings in 2020, but did “nothing” about this until after the formation of the government in January 2025 when Daly “pursued the matter with enormous haste”.

He said there is no way to characterise the legal challenge as anything other than a politically motivated move by the opposition against the government in its early stages.

He re-emphasised that it would be an “unprecedented intrusion” by the judiciary to regulate who attends government meetings, arguing the executive should have a “significant discretion”.

Fanning said precedent suggests cases of this nature should not be decided based on “hypotheticals”. 

He argued the Taoiseach does not have unlimited freedom to invite people to government meetings due to political constraints as he is held accountable to Dáil Éireann. He also highlighted that non-government members have attended government meetings since 1937. 

“Subject to any demonstrable, clear disregard of the constitution these things are better left to the Taoiseach’s discretion”, he said, advising the court not to “concern itself with hypotheticals”.

Fanning said there is “no constitution or statutory position of chief whip”, emphasising that the chief whip has no constitutional basis to attend government meetings, as is the case with ministers of state. 

He argued McDonagh has “splinters from sitting on the fence” on the issue of the attendance of the chief whip at government meetings, adding that if McDonagh concedes the chief whip can attend, he has no argument against super junior ministers attending.

Fanning told Judge Siobhan Phelan that there is no functional difference in participation between the chief whip and ministers who attend regularly at cabinet meetings. 

Judge Phelan highlighted that academic research suggests the chief whip does not speak at cabinet. However, Fanning said in modern times this is not practised as the chief whip attends in their capacity of minister of state too. 

Referring to Indian jurisprudence, Judge Phelan questioned whether the reason of placing a maximum number on the members of government is to prevent a conflict of interest between members of cabinet receiving financial benefit and then acting as part of the legislature and how that impacts the separation of power between the legislature and executive. 

Fanning’s team said there is ”no evidence to support that” in the Irish context.

Speaking for TD Daly, Eileen Barrington SC said the “only one real issue in the case is what does article 28 mean?”, arguing that if Daly’s interpretation of Article 28 is correct, “there can be no real doubt but that we succeed in these proceedings”.

Article 28.1 of the constitutions says the government “shall consist of not less than seven and not more than fifteen members who shall be appointed by the President”.

With reporting from David Mac Redmond