The Oireachtas was not entitled to enact a law which tells political parties their general election candidates “must be gender balanced”, the Supreme Court has been told.
Fianna Fáil activist Brian Mohan, as a FF member, candidate and citizen, was and still is adversely affected by the 2012 law and should be permitted pursue his claim that it is unconstitutional, Michael McDowell SC argued.
Maurice Collins SC, for the State, argued Mr Mohan’s argument had changed in various courts in a manner “to make a seasoned politician blush”.
Mr Mohan clearly had no legal standing to challenge the law when his own party supported it and was “fundamentally at odds” with Fianna Fáil policy on this issue, he said.
A five-judge Supreme Court reserved judgment on Thursday on Mr Mohan’s appeal over his failed challenge to the Electoral (Political Funding) Act 2012, which links State funding of political parties to their meeting gender quota targets when selecting general election candidates.
The core issue concerns interpretation of a rule concerning the legal entitlement to bring a challenge to legislation.
Both the High Court and Court of Appeal had found Mr Mohan lacked the necessary legal standing to challenge the Act.
They held Mr Mohan 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 done so.
The Supreme Court agreed to hear a further appeal on grounds the interpretation of the law relating to standing to bring a challenge to legislation, particularly electoral law, raised a matter of “general public importance”.
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, Fianna Fáil’s national constituencies committee directed that only one candidate, who must be female, should be selected at the convention.
By summer 2015, there were 10 women among 47 FF candidates chosen in 31 constituencies.
Mary Fitzpatrick was ultimately selected for Dublin Central.
In submissions on Thursday, Mr McDowell argued Mr Mohan has the necessary legal standing both as a candidate and as a member of a party affected by the law.
Mr Mohan also has standing as a citizen because public monies were being allocated in a manner which discriminated between parties over policy decisions they were entitled to make, counsel argued.
The Oireachtas has no function in seeking to influence the outcome of a party’s deliberations on candidates, he said. Mr Mohan was affected because the party of which he is a member could, if it does not meet the quota targets, face having its €1.6 million annual funding cut in two.
Opposing the appeal, Mr Collins said Mr Mohan's position in the High Court was that he was adversely affected as a FF candidate, his position in the Court of Appeal was that he was affected as a FF member and now he had "put on the gilet jaune of citizenship".
None of those arguments gave him legal standing when his own party had not challenged the Act, he said.
The 2012 Act does not prescribe what steps a political party must take to comply with the legislation, counsel also argued.
In his reply, Mr McDowell said he was “amused” at suggestions Mr Mohan’s case had “mutated”.
The multi-faceted claims of legal standing based on candidacy, FF membership and citizenship were made from the start of the case and had not altered, he said.
