Fine Gael general secretary John Carroll issued an instruction blocking the nomination of Independent presidential candidates by the party’s councillors because it wanted to be seen as “rallying around” its own candidate, the Supreme Court has heard.
It would not be “a good look” for Fine Gael councillors to be facilitating another candidate when the party had selected someone to run on its behalf, senior counsel Seamus Clarke said.
His argument was that the courts cannot intervene in this “fully political” matter, but if the court considered otherwise, it should find the directive was not constitutionally impermissible.
Clarke was making submissions on behalf of Fine Gael leader Simon Harris, the Tánaiste, opposing businessman Niall Byrne’s appeal over the High Court’s rejection of his challenge to the direction.
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The appeal by Co Kildare-based Byrne, representing himself, was also taken against the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General.
When dismissing Byrne’s case, High Court judge Brian Cregan noted the Oireachtas All-Party Committee on the Constitution previously recommended reform of the nomination process. Whether or not there should be reform was a political matter to be decided by the Irish public and their representatives, he said.
After Byrne’s appeal concluded on Thursday, Judge Donal O’Donnell said the five-judge court would give judgment at a later date.
The judgment has potential implications for future presidential elections but cannot impact on the validity of the October presidential election in which Independent TD Catherine Connolly comprehensively defeated Fine Gael’s Heather Humphreys.
The court must first decide whether the direction is a matter justiciable by the courts. If yes, the court must decide if there was an impermissible interference with the nomination process in Article 12.4 of the Constitution.
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The article provides that, to be nominated to run for president, a candidate must secure the support of at least 20 members of the Oireachtas or four county councils.
Byrne, who failed to be nominated, said he was a “politically neutral” participant who became concerned that the constitutional pathway to nomination, particularly the role entrusted to local authorities, was not operating in a constitutional manner.
He said his participation was “not done out of personal ambition” but arose from “a sense of civic duty to offer my services where I believed I could contribute”.
The direction is a justiciable matter and involved an impermissible interference with his constitutional rights, he submitted.
Opposing the appeal for the State and Attorney General, senior counsel Bairbre O’Neill said what was before the court was a matter that was “purely politics”.
If the court disagreed the matter was not justiciable, the instruction issued was constitutionally permissible, she argued.
Political parties, she said, have the right to control their internal systems and to make choices to organise their members behind particular issues or candidates.
If Byrne was correct about the use of the whip system, there would be difficulties with other normal political processes being whipped, O’Neill said.
In his submissions, Clarke said, while the direction made it “less likely” Fine Gael councillors would nominate anyone other than the party candidate, it still left them with “personal responsibility”. It seemed one person did not abide by the direction, counsel added.
Fine Gael is entitled to use the party whip, including as a possible “buffer” in circumstances where populist candidates were seeking support from councillors, he said.
This was an “entirely political” matter in which the court could not intervene but, if the court considered the matter was justiciable, there was no impermissible interference with the nomination process under Article 12.4, he said.
