Supreme Court to hear Fianna Fáil activist's appeal over gender quota law

By Ann O'Loughlin

The Supreme Court has agreed to hear an appeal by Fianna Fáil activist Brian Mohan over his failed challenge to a law linking State funding of political parties to their meeting gender quota targets when selecting general election candidates.

The core issue in the appeal concerns the interpretation of a rule concerning the legal entitlement to bring a challenge to legislation.

The issue arises because both the High Court and Court of Appeal agreed Mr Mohan lacked the necessary legal standing to challenge the Electoral (Political Funding) Act 2012.

They held Mr Mohan was not directly affected by the legislation and was seeking to rely on the right of any political party to challenge the legislation in circumstances where his own party had not challenged it.

In a published determination this week, a three-judge Supreme Court, comprising Mr Justice Donal O'Donnell, Ms Justice Elizabeth Dunne and Ms Justice Iseult O'Malley, said interpretation of the law of the rule relating to standing to bring a challenge to legislation, particularly in the area of electoral law, raises a matter of "general public importance".

In those circumstances, the court granted Mr Mohan leave to appeal.

The judges noted the 2012 Act provides that a party that fails to have at least 30% male candidates and 30% female candidates in the next general election after 2012 would have its funding halved.

The Act also provides, from 2023 onwards, the funding cut would apply to parties that fail to have at least 40% male and 40% female candidates.

Women comprise about 22% of the current Dáil.

The 2016 general election was the first election to which the 2012 Act was applicable and Mr Mohan was nominated for selection as a candidate at the October 2015 Dublin Central constituency candidate selection convention.

Prior to that, he received a letter from Fianna Fáil's general secretary stating the National Constituencies Committee of the party had directed only one candidate, who must be female, should be selected at the convention.

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.

In his challenge to the constitutionality of the 2012 law, 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 Act directly affected him at the convention and still does.

Last February, the Court of Appeal held Mr Mohan's constitutional challenge was a "derivative claim" that only exists by and through the party of which he is a member.

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, the COA said.

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