Mohan v Ireland

JurisdictionIreland
JudgeO'Donnell J.
Judgment Date21 March 2019
Neutral Citation[2019] IESC 18
CourtSupreme Court
Docket NumberSupreme Court Record No. 53/2018,[S.C. No. 53 of 2018]
Date21 March 2019
Between/
BRIAN MOHAN
Plaintiff/Appellant
- and -
IRELAND

AND

THE ATTORNEY GENERAL
Defendants/Respondents

[2019] IESC 18

O'Donnell Donal J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley Iseult J.

Supreme Court Record No. 53/2018

THE SUPREME COURT

Locus standi – Constitutional challenge – Electoral Act 1997 s. 17(4B) – Appellant seeking to establish standing – Whether the appellant could satisfy the primary rule in Cahill v Sutton [1980] IR 269

Facts: The appellant, Mr Mohan, commenced proceedings: a constitutional challenge to the validity of s. 17(4B) of the Electoral Act 1997, as inserted by s. 42(c) of the Electoral (Amendment) (Political Funding) Act 2012. The High Court (Keane J) set out the evidence heard, made certain findings of fact, and concluded that the appellant did not have locus standi to challenge the section. He considered that the appellant was unable to satisfy the primary rule in Cahill v Sutton [1980] IR 269, that is, to demonstrate that his interests had been adversely affected by the operation of the section. The Court of Appeal (Ryan P, Finlay Geoghegan and Peart JJ concurring) dismissed the appellant’s appeal on the same basis. The appellant appealed to the Supreme Court, arguing that he was entitled to establish standing: first, in his capacity as a candidate who had sought nomination; second, as a member of a political party; and third, simply as a citizen. Moreover, he argued that, in those capacities, he could satisfy the primary rule in Cahill v Sutton. He also sought to contend that he could establish locus standi as a member of a group having a common interest with other members, or indeed as a citizen more generally.

Held by O’Donnell J that the appellant had standing under the primary rule in Cahill v Sutton.

O’Donnell J held that he would, accordingly, reverse the finding of the Court of Appeal, and find that the appellant had locus standi to challenge the provisions of s. 17(4B) of the 1997 Act. O’Donnell J held that he would remit the matter to the High Court for the determination of the substance of the appellant’s challenge to that provision.

Appeal allowed.

Judgment of O'Donnell J. delivered the 21st day of March 2019.
Introduction
1

These proceedings are a constitutional challenge to the validity of s. 17(4B) of the Electoral Act 1997 (‘the 1997 Act’), as inserted by s. 42(c) of the Electoral (Amendment) (Political Funding) Act 2012 (‘the 2012 Act’), but this judgment (in common with those of the High Court and Court of Appeal) does not address the substance of the appellant's claim. It is concerned only with the adjectival or preliminary issue of locus standi: that is, the standing which it is necessary for an appellant to establish before a court will entertain a challenge to the constitutional validity of any legislation. This aspect of the case raises a novel issue in an area that is of general importance.

2

Over the past 25 years, the electoral laws of the State have become increasingly subject to close regulation. The 1997 Act introduced the basic structure which remains in place today, although it has been the subject of repeated amendment in the intervening time. The consolidated version of the 1997 Act supplied to the court by the parties shows that it has been amended on 18 different occasions, sometimes substantially. The 1997 Act provided, initially, for the disclosure of donations to parties or candidates with a view to lessening the dependence of the political system on private donations from individuals or corporate entities. In lieu of private donations, it provided for state funding of political parties in accordance with a statutory formula, and the recoupment of limited expenses incurred by candidates at elections who received more than 25% of the quota. Finally, the 1997 Act placed significant limits on expenditure during election campaigns, and created a mechanism for the reporting of election expenditure to what was then the Public Offices Commission (now the Standards in Public Office Commission, ‘SIPO’). Subsequent amendments have tightened the legislation substantially by imposing strict limits on private donation, and increasing the disclosure requirements for private and corporate donations while, at the same time, increasing the amount of public funding available to political parties. The progressive changes to the regime have led to a significant change in the landscape of the funding of political activity in Ireland. It is recorded in Doyle, The Constitution of Ireland: A Contextual Analysis (1st edn., Hart, 2018), at p. 64, that the register of corporate donors maintained by SIPO shows no more than 15 donors registered in recent years, mainly trade unions. As observed by Noel Whelan in his essay “Changing the rules of the political game”, Law and Government: A Tribute to Rory Brady (1st edn., Round Hall, 2014), p. 48, in a passage quoted in the judgment of the High Court, ‘the restrictions imposed by these limits and the publication requirements have operated, along with the economic downturn it must be said, to dramatically reduce the level of donations to parties and candidates from business interests and wealthier people’. One consequence of these changes has been to increase the importance of public funding for political parties.

3

Section 17(4B) of the 1997 Act is contained in Part III of that Act. Part III provides for payment out of the Central Fund to political parties in proportion to the first preference votes obtained by the party at the preceding general election. Initially, the sum of £1,000,000 was available, with a provision for increase. As of the date of the hearing in the High Court, the total fund for distribution was €5,456,000, of which the Fianna Fáil party received €1,168,000. The funding is provided on the basis of strict neutrality as to the objectives, views, activities, or current popularity of the party. The single criterion is the percentage share of first preference votes at the previous general election, with a qualifying threshold of 2%. It is not in dispute that the funding thus provided is a significant part of the funding available to any political party. However, funding provided under Part III can only be applied to the general conduct and management of the party's affairs and the lawful pursuit by it of any of its objectives, and to the general administration of the party, research, education, and training, policy formation, and the coordination of the activities of branches and members. Therefore, it cannot be applied to defray electoral expenses, which is, moreover, expressly prohibited by s. 18(2) of the 1997 Act.

4

The new s. 17(4B) inserted by s. 42(c) of the 2012 Act is not directed towards regulating the funding of political parties. Rather, as the evidence given in the High Court showed, it seeks to utilise the existence of that funding and the possibility of its removal to achieve one of the objectives of the 2012 Act, that is, to secure a more gender-balanced field of candidates in elections, and consequently increase the chances of a more gender-balanced legislature. Section 17(4B)(a) provides that the payment due to a registered political party under Part III will be reduced by 50% if the candidates presented for election by the party at the next following general election were not at least 30% male and 30% female. In accordance with s. 17(4B)(b)(i) and (ii), s. 17(4B)(a) came into operation on 26 February 2016 (the polling day of the first general election held after s. 17(4B) came into operation on 27 September 2012), and will remain in effect until the polling day at the general election held next after the expiry of 7 years from that date. Thereafter, the 50% reduction in funding will apply if the candidates presented at all subsequent elections are not at least 40% male and 40% female. Extensive evidence was given in the High Court by Dr. Fiona Buckley of the Department of Government and Politics of University College Cork, explaining the policy background to the 2012 Act and citing literature and materials, both domestic and international, which establish that the objective of the 2012 Act was to address the historic underrepresentation of female candidates in the Dáil, and, consequently, increase the number of female elected representatives.

5

The appellant is a member of the Con Colbert Cumann of the Fianna Fáil party, was the chair of the Dublin Central Comhairle Dáil Ceantair (‘CDC’), and had hoped to obtain the Fianna Fáil nomination for the 2016 general election in the Dublin Central constituency. He was one of three prospective candidates put forward seeking the nomination of the constituency selection convention, and was the only male. The other two candidates were female. On 18 September 2015, however, he received a letter from the general secretary of the Fianna Fáil party containing a direction that ‘the candidate selected must be a woman’. In the event, and in accordance with the direction, the appellant was excluded from consideration, and a female candidate was nominated.

6

The appellant then commenced these proceedings. In a careful judgment of the High Court (see [2016] IEHC 35), Keane J. set out the evidence heard, made certain findings of fact, and concluded that the appellant did not have locus standi to challenge the section. He considered that the appellant was unable to satisfy the primary rule in Cahill v. Sutton [1980] I.R. 269, that is, to demonstrate that his interests had been adversely affected by the operation of the section. In that regard he said, at para. 85 of his judgment:-

‘The plaintiff in this case cannot assert, on the limited evidence presented, that his rights (whether to stand as a candidate, to equal treatment, or to freedom of expression, assembly or association) have been adversely affected by the operation of s. 17(4B) because he has failed...

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