High Court rules Fianna Fáil activist cannot challenge gender quota laws

By Ann O'Loughlin

Fianna Fáil activist Brian Mohan is not legally entitled to challenge the constitutionality of a law linking State funding of political parties to their meeting gender quota targets when selecting general election candidates, the Court of Appeal has ruled.

Giving the judgment, Court of Appeal President, Mr Justice Sean Ryan, sitting with Ms Justice Mary Finlay Geoghegan and Mr Justice Michael Peart, upheld a High Court finding that Mr Mohan lacked legal standing, saying it was based on an "unimpeachable" reading of the relevant law.

Mr Mohan's constitutional challenge is a "derivative claim" that only exists by and through the party of which he is a member, the judge said. That party gets State funding and is directly affected by the relevant law but it had not alone not challenged the law, it supported it. "That is the party's decision."

Membership of a political party is not sufficient to give standing to a person to challenge this law, he ruled.

The case arose from the Electoral (Political Funding) Act 2012 which halves State funding to parties who fail to ensure at least 30% of their general election candidates are women and 30% are men. That percentage is intended to rise to 40% after seven years. Women comprise about 22% of the current Dáil.

Mr Mohan took the proceedings after Fianna Fáil headquarters issued a direction in September 2015 to a Dublin Central general election selection convention the sole candidate selected must be female.

The direction was issued in a context where, by summer 2015, there were 10 women among 47 FF candidates chosen in 31 constituencies. Mary Fitzpatrick was selected for Dublin Central.

Mr Mohan claimed it would be impossible for Fianna Fáil to function if its State funding of some €1.16m was halved and the 2012 law directly affected him at the convention and still does.

In February 2016, the High Court ruled Mr Mohan did not have legal standing to bring a constitutional challenge to the law. He appealed and the appeal court today dismissed his appeal.

Mr Justice Ryan said Mr Mohan's submissions and oral argument "owe more to logic than to law".

There is no doubt the sanction in the 2012 law is "significant" and is clearly intended to have an effect on candidate selection, he said. However, the claim being advanced by Mr Mohan was in essence one based on the rights of Fianna Fáil rather than any individual rights of Mr Mohan's.

Mr Mohan had not established the legislation was responsible for the Fianna Fáil direction to the September 2015 Convention. The 2012 Act did not prevent Mr Mohan standing or going for selection, it was for parties to decide how to address that law.

Fianna Fáil had decided it would implement the Act as it had and any complaint is with the party and not with the legislation, he said. Mr Mohan had not challenged the direction and the High Court had held, on the evidence before it, Mr Mohan's failure to be selected could not be ascribed to the law.

Apart from the absence of proof for Mr Mohan's claim, his party could not survive if it were deprived of 50% of State funding if it did not meet gender quotas, it is obvious that claim was an example of one advanced on behalf of a third party, the judge said.

The fact Fianna Fáil had not challenged the 2012 law and supported it also undermined any claim sought to be advanced by Mr Mohan on behalf of its members. While members could change their minds and seek to repeal the law, that had little to do with whether Mr Mohan could speak on behalf of Fianna Fáil to challenge a law the party supports.

Mr Mohan, the judge said, is in a sense correct to say the law affects him and other party members when it comes to candidate selection. That was no more than saying he is subject to the law of the land, as with every Act of the Oireachtas, and every member of a political party is in the same position.

While there is debate about the value of quotas and the political wisdom of imposing them and that was a legitimate political issue, it did not grant standing, he added.

KEYWORDS: court, gender quota

 

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