The Irish Supreme Court has upheld an appeal by a member of Fianna Fáil who brought proceedings challenging the constitutionality of laws linking state funding of political parties to gender quota targets.
Brian Mohan sought to secure a Fianna Fáil nomination for the 2016 general election in the Dublin Central constituency. However, he was informed by letter that the candidate selected must be a woman. As a result, he was excluded from consideration and a female candidate was nominated.
Mr Mohan brought proceedings to challenge the constitutionality of Section 17(4B) of the Electoral Act 1997, as inserted by Section 42(c) of the Electoral (Amendment) (Political Funding) Act 2012.
The section was introduced in order to increase the number of female elected representatives in Ireland given a historic under-representation of women candidates. Section 17(4B)(a) does so by providing that State funding to a registered political party will be reduced by 50% if the candidates presented are not at least 30% male and 30% female. This first came into operation for the 2016 election. Within 7 years, there will be a requirement of 40% males and 40% female.
The High Court and Court of Appeal ruled that Mr Mohan lacked legal standing (locus standi) to challenge the constitutionality of the provision as the section operated directly on the political party as opposed to the individual.
Before the Supreme Court, Mr Mohan argued that he had standing as a candidate that sought election, as a member of a political party and as a citizen. He argued that he fell within the primary rule of standing set out in Cahill v Sutton as his interests “have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of statute”.
Justice Donal O’Donnell considered the case within the context of both equality rights and freedom of association under the Constitution. Justice O’Donnell found that Mr Mohan’s interests, “both in the broad sense of his personal interest in being selected as a candidate and his interest in participating in the nomination process as a member of the party, and the more specific sense of the rights (of equality) and freedoms (of association) he asserts under the Constitution would appear, at least prima facie, to be affected by s. 17(4B)”.
Justice O’ Donnell acknowledged that this was a sophisticated piece of legislation pursuing an important social goal, doing so through positive discrimination on gender grounds and controlling public funding for political parties – both of which are areas of constitutional sensitivity. Justice O’Donnell’s preference was therefore that the case be addressed on its merits rather than decided on the basis of standing.
In stating that the deprivation of standing was a “serious error” by the High Court and Court of Appeal, the Court granted the appeal and remitted the case to the High Court for a full hearing of the validity of Section 17 (4B) of the Electoral Act 1997.
Click here for the decision in Mohan v Ireland and the Attorney General.