Mohan v Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 09 February 2018
• Neutral Citation: [2018] IECA 13
• Date: 09 February 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 13 [2016 No. 108]

[2018] IECA 13

THE COURT OF APPEAL

Ryan P.

The President

Finlay Geoghegan J.

Peart J.

Neutral Citation Number: [2018] IECA 13

[2016 No. 108]

BETWEEN

BRIAN MOHAN

PLAINTIFF

AND

IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Standing - Election - Constitutional invalidity - Plaintiff seeking to have s. 17 (4B) of the Electoral Act 1997 struck down on the ground of constitutional invalidity - Whether plaintiff had the necessary standing to bring the action

Facts: The plaintiff, Mr Mohan, was a member of the Fianna Fáil party and was chair of the Dublin Central Comhairle Dail Ceanntair (CDC). In early September 2015 in advance of the General Election, he was nominated for selection as a candidate at the constituency candidate selection convention scheduled for 7th October 2015. On 18th September 2015, he received a letter from the general secretary of the party in which the following was stated: "[h]aving considered the matter very carefully and consulted with the CDC Officer Board, the National Constituencies Committee has directed that one candidate only be selected at the convention and that the candidate selected must be a woman." There were three candidates nominated, two women and the plaintiff. The convention was held as scheduled and one woman was chosen as the party candidate. Mr Mohan did not challenge the validity of the decision made by the party management, choosing instead to apply to the High Court seeking to have s. 17 (4B) of the Electoral Act 1997 as inserted by s. 42 (c) of the Electoral (Amendment) (Political Funding) Act 2012 struck down on the ground of constitutional invalidity. In a judgment delivered on 2nd February 2016, Keane J dismissed the plaintiff's claim, holding that he did not have the necessary standing to bring the action applying the law as stated by the Supreme Court in the leading caseCahill v Sutton[1980] IR 269, and also holding that there were no countervailing considerations that would overcome the primary rule. The High Court was satisfied that the principles of exception in the case law that the plaintiff sought to rely on were not available to him in this case; those cases wereCrotty v An Taoiseach[1987] IR 713,McGimpsey v Ireland[1988] IR 56 andMcKenna v An Taoiseach (No. 2)[1995] 2 IR 10. The High Court did not proceed to decide the question of constitutionality but dismissed the claimin limine. The plaintiff appealed to the Court of Appeal against that decision, asserting that he had standing because: (i) he had sufficient interest in the subject matter of the proceedings; (ii) he had been personally aggrieved, injured or prejudiced; and (iii) he had raised important constitutional issues. He maintained that the High Court erroneously held that he lacked standing either under the primary rule or the recognised exceptions in the case law.

Held by Ryan P that membership of a political party was not of itself sufficient to give standing to a person to challenge the measure. Ryan P thought that the analysis of the rules as to standing that the High Court made was unimpeachable; Keane J looked at the locus classicus inCahill v Suttonto find the primary rule, he examined the rationale as explained in the judgments of Henchy J and O'Higgins CJ and applied it to the circumstances, he referred to the exceptions as recognised in that case, and he looked at subsequent judgments to see if there was anything there that would assist the plaintiff. Ryan P was unable to find fault with that approach, considering it a model of judicial analysis of case law.

Ryan P held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the President delivered on 9th February 2018

Introduction

1 In a judgment delivered on 2nd February 2016, Keane J. dismissed the plaintiff's claim that s. 17 (4B) of the Electoral Act 1997 as inserted by s. 42 (c) of the Electoral (Amendment) (Political Funding) Act 2012 was invalid having regard to the provisions of the Constitution. The court held that the plaintiff did not have the necessary standing to bring the action, applying the law as stated by the Supreme Court in the leading case Cahill v. Sutton [1980] IR 269, and also holding that there were no countervailing considerations that would overcome the primary rule. The High Court was satisfied that the principles of exception in the case law that the plaintiff sought to rely on were not available to him in this case. Those cases were Crotty v. An Taoiseach [1987] IR 713, McGimpsey v. Ireland [1988] IR 56 and McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10. In light of this finding, the High Court did not proceed to decide the question of constitutionality but dismissed the claim in limine. The issue in this appeal is whether the decision made by Keane J. that the plaintiff lacked standing is correct.

2 Part III of the Electoral Act 1997 provides for State funding to eligible political parties on certain conditions. Section 17 (4B) imposes a reduction unless at least 30% of the party's candidates at the previous general election were women and at least 30% were men to qualify for such funding. That is set out as follows.

3 Section 17 (4B) provides:

'(a) Payments calculated in accordance with this Part shall be reduced by 50 per cent, unless at least 30 per cent of the candidates whose candidatures were authenticated by the qualified party at the preceding general election were women and at least 30 per cent were men.

(b) Paragraph (a) -

(i) comes into operation on the polling day at the general election held next after section 42 of the Electoral (Amendment) (Political Funding) Act 2012 comes into operation and

(ii) ceases to have effect on the polling day at the general election held next after the expiration of 7 years from the polling day specified in subparagraph (i).

(c) Payments calculated in accordance with this Part shall be reduced by 50 per cent, unless at least 40 per cent of the candidates whose candidatures were authenticated by the qualified party at the preceding general election were women and at least 40 per cent were men.

(d) Paragraph (c) comes into operation on the day after the day on which paragraph (a) ceases to have effect.'

4 The plaintiff is a member of the Fianna Fáil party and at the relevant time he was chair of the Dublin Central Comhairle Dail Ceanntair (CDC). In early September 2015 in advance of the forthcoming General Election, Mr. Mohan was nominated for selection as a candidate at the constituency candidate selection convention scheduled for 7th October 2015. On18th September 2015, he received a letter from the general secretary of the party in which the following was stated:

'[h]aving considered the matter very carefully and consulted with the CDC Officer Board, the National Constituencies Committee ["NCC"] has directed that one candidate only be selected at the convention and that the candidate selected must be a woman.'

5 There were, in fact, three candidates nominated, two women and the plaintiff. The convention was held as scheduled and one woman was chosen as the party candidate.

6 Mr. Mohan did not challenge the validity of the decision made by the party management, but chose instead to seek to have the relevant legislation struck down on the ground of constitutional invalidity. That is the claim that he brought to the High Court. He pleaded that s. 17 (4B) offended Articles 6, 16 and 40 in various ways. In its defence, the State made the preliminary objection that the plaintiff lacked the necessary standing to enable him to bring the claim and that the action should therefore be dismissed in limine. The defence maintained that the plaintiff was not affected sufficiently or at all by the provision and that he was in effect seeking to make a third party case on behalf of Fianna Fail.

The High Court

7 The Court heard evidence from the plaintiff and from Dr. Fiona Buckley, a lecturer in the Department of Government at UCC, who was called by the State. She specialises in the study of gender politics, including women's political representation in Ireland.

8 Three propositions of fact formed an important part of the plaintiff's case, as the Court held. The first was the contention that the statutory provision in question was truly coercive in its effect because the Fianna Fáil party could not continue to function with a 50% reduction in its s. 17 funding. Keane J. concluded on this point that the plaintiff had failed to establish that such a reduction would make it impossible or even significantly difficult for the party to continue to function.

9 Mr. Mohan also failed to satisfy the Court that his exclusion from the selection process was a requirement imposed on the party by section 17 (4B) rather than a decision made entirely at the discretion of the party. In the course of her evidence, Dr. Buckley had been able to point to a report by an internal Fianna Fáil commission that outlined a range of different options available to the party to meet the candidate gender quota.

10 The third point was that the Fianna Fail party supported the gender quota in question. Not only had its parliamentary representatives not opposed the legislation, but they had actually suggested extending its reach to local government elections. The court held that Mr. Mohan's protestations that the party membership at its Ard Fheis in 2012 had voted against gender quotas did not trump the positions of the Parliamentary Party, the party leader or the National Constituency Council, in the absence of any evidence to that effect.

11 The plaintiff does not challenge these findings in his Notice of Appeal or submissions.

12 The submissions made to the High Court on standing are outlined in the written submissions on this appeal and they may be summarised as follows. He had standing because he had sufficient interest in the matter and had been...