The Supreme Court has ruled that Brian Mohan has standing to challenge a law linking political party funding to the gender balance of its election candidates, and remitted his case to the High Court for a full hearing on its merits.
In a judgment delivered on 21 March 2019, O’Donnell J. said the appeal concerned only locus standi, or the right to bring the challenge. The court did not decide whether the provision is constitutional. O’Donnell J. stressed that the claim could still fail at a full hearing.
Mohan, a Fianna Fáil member and former chair of the Dublin Central Comhairle Dáil Ceantair, had sought the party’s nomination for the Dublin Central constituency at the 2016 general election. He was one of three prospective candidates, and the only man. On 18 September 2015, the party’s general secretary wrote that the selected candidate had to be a woman. Mohan was excluded from consideration, and a woman was nominated.
The challenged provision, section 17(4B) of the Electoral Act 1997, was introduced by the Electoral (Amendment) (Political Funding) Act 2012. It provides for a 50% reduction in a party’s public funding if its candidates do not meet specified minimum percentages for men and women. Mohan argued that the law contributed to his exclusion and affected his interests and constitutional rights.
The High Court and Court of Appeal had found that he did not have standing. The High Court concluded that he had not established a sufficient link between the law and the party’s direction, and that the party had discretion over how to meet the candidate quota. The Supreme Court held that those findings did not establish that the law had no effect on Mohan. It said the law’s intended indirect effect was to influence candidate selection, and that the effect on him was sufficient to let him bring the challenge.
The Supreme Court reversed the Court of Appeal’s decision on standing and sent the case to the High Court to determine the substance of the constitutional challenge. The order did not invalidate section 17(4B), and the constitutional issue remains unresolved.