Supreme Court clears way for challenge to gender quotas law

Fianna Fáil activist Brian Mohan challenging law linking quotas to funding

Fianna Fáil candidate Brian Mohan.  File photograph: Collins

Fianna Fáil candidate Brian Mohan. File photograph: Collins

 

The Supreme Court has cleared the way for Fianna Fáil activist Brian Mohan to pursue a challenge to the constitutionality of a law linking State funding of political parties to their meeting gender quota targets when selecting general election candidates.

The five-judge court’s unanimous decision today means Mr Mohan’s challenge will be heard later in the High Court. Mr Mohan claimed, as a Fianna Fáil member, candidate and citizen, he was and still is adversely affected by the Electoral (Political Funding) Act 2012.

The relevant provision is Section 17.4.b of the Electoral Act 1997, as inserted by Section 42.c of the 2012 Act. Giving the court’s judgment, Mr Justice Donal O’Donnell ruled Mr Mohan has shown “sufficient” effect upon him to be entitled to challenge the measure. That decision related only to the preliminary issue of legal standing and did not address the substantive issue, the constitutionality of the law, in any way, he stressed.

The provision is a sophisticated piece of legislation which pursues an “evidently important social goal” but sought to do so by a form of positive discrimination on gender grounds and through a mechanism of controlling funding for political parties, both areas of “constitutional sensitivity”, he noted.

Both the High Court and Court of Appeal had ruled Mr Mohan lacked legal standing to challenge the constitutionality of the provision. They held he was not directly affected by the legislation and not entitled to rely on the right of any political party to challenge it when his own party had not.

The Supreme Court later agreed to hear a further appeal. In its judgment, Mr Justice O’Donnell said the suggestion the indirect nature of the impact of the provision on Mr Mohan deprives him of standing represented a “serious error” by both the High Court and Court of Appeal.

The provision is not directed towards regulating the funding of political parties but seeks to utilise the existence of that funding, and the possibility of removing that, to achieve one of the objectives of the 2012 Act, a more gender-balanced field of election candidates, he said.

Mr Mohan’s interest, both in the broad sense of his being selected as a candidate and his interest in participating in the nomination process, and the more specific sense of the rights of equality and freedom of association, would appear, at least prima facie, to be affected, he said.

While Fianna Fáil could have challenged the law, that did not necessarily mean Mr Mohan lacks standing. There were “clear difficulties” in concluding a political party had standing to the exclusion of Mr Mohan or any other person, for reasons including a political party is not a separate legal entity from its members.

The party and Mr Mohan were also “in different positions“” and therefore have different, if overlapping, claims. Membership of an association does not preclude an individual asserting that legislation directed towards the internal working of that association is an “impermissible interference” with his freedom of association, the judge said. The indirect effect of the disputed provision is “fully intended” and, indeed, is the objective of the legislation, he said.

The true objective of the legislation is to “influence the candidate selection process”, the very process Mr Mohan was engaged in and the indirect nature of the impact on Mr Mohan is not a basis to deny him standing, he held.

The argument that, simply because the Act operates indirectly, no individual so affected can challenge it is “misconceived and contrary to both legal authority and principle”.

The 2012 Act provides that a party that fails to have at least 30 per cent male candidates and 30 per cent female candidates in the next general election after 2012 would have its funding halved.

From 2023 onwards, the funding cut would apply to parties that fail to have at least 40 per cent male and 40 per cent female candidates. Women comprise about 22 per cent of the current Dáil. The 2016 general election was the first election to which the 2012 Act was applicable. Mr Mohan was nominated for selection as a candidate at the October 2015 Dublin Central constituency candidate selection convention but, prior to that, FF’s National Constituencies Committee directed only one candidate, who must be female, should be selected at the convention. By summer 2015, there were ten women among 47 FF candidates chosen in 31 constituencies. Mary Fitzpatrick was ultimately selected for Dublin Central.