THE SUPREME COURT
Supreme Court Record No. 53/2018
O'Donnell J.
MacMenamin J.
Dunne J.
Charleton J.
O'Malley J.
BRIAN MOHAN
Plaintiff/Appellant
- and -
IRELAND AND THE ATTORNEY GENERAL
Defendants/Respondents
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 Fail 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 Dail, and, consequently, increase the number of female elected representatives.
5 The appellant is a member of the Con Colbert Cumann of the Fianna Fail party, was the chair of the Dublin Central Comhairle Dail Ceantair ("CDC"), and had hoped to obtain the Fianna Fail 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 Fail 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 to establish any, or any sufficient, causal nexus between the direction of the party excluding his nomination from consideration at the relevant candidate selection convention and the operation of that provision."
7 He recognised that Cahill v. Sutton [1980] I.R. 269 was a rule of practice and subject to exceptions. There was, he found, no question of the first exception contemplated in Cahill v. Sutton itself applying to this case, that is, that there was no other person who could bring an action in this regard. He considered, furthermore, that the second exception (where a plaintiff can claim that the particular legislative provision is directed to a group with whom the challenger can be said to have a common interest) was also inapplicable. Finally, he considered whether there were countervailing factors justifying a departure from the rule, as occurred in cases such as Crotty v. An Taoiseach [1987] IR 713 and McGimpsey v. Ireland [1990] 1 I.R. 110, in which it could be said that the proceedings affected the population in general, but considered that there were no countervailing grounds justifying a departure from the general rule. This conclusion followed almost inevitably from the conclusion that political parties had standing to bring proceedings in relation to the gender quota provision if they so desired. In accordance with what he considered to be the principle established in settled jurisprudence, such as Murphy v. Roche [1987] I.R. 106, McDaid v. Sheehy [1991] 1 I.R. 1, and Equality Authority v. Portmarnock Golf Club [2009] IESC 73, [2010] 1 IR 671, the High Court judge did not then proceed to address any further issues in the case, but rather dismissed the claim. The Court of Appeal (Ryan P.; Finlay Geoghegan and Peart JJ. concurring) dismissed the appeal on the same basis, holding indeed, at para. 40, that the finding that the appellant did not satisfy the primary rule in Cahill v. Sutton was "entirely correct and in accordance with the jurisprudence", and, at para. 47, that the approach of the High Court to the rules as to standing was an "unimpeachable" analysis and a "model of judicial analysis of case law" (see [2018] IECA 13).
8 It is important to keep in mind that, while the decisions of the High Court and the Court of Appeal were solely on the issue of locus standi , the decisions were not arrived at following a determination of a preliminary issue on the basis of the pleadings, as is often the case, but rather after hearing the evidence in the case. The test applied, therefore, did not merely consider the allegations made, but rather the case as established on the evidence. It appears that the appellant's evidence was very limited, and was little more than the evidence of the appellant himself, whereas the respondents presented the comprehensive evidence of Dr. Buckley. It also appears that the arguments of the appellant went through a process of what the appellant's counsel no doubt considered to be helpful refinement in the course of exchanges with the court, but which the respondents saw as endless mutation and ceaseless proliferation. As the President of the Court of Appeal rather drily put it, the arguments were not characterised by restraint, but the nature of the case probably accounted for a certain amount of this. For present purposes, this means, however, that there is a lack of clear and direct engagement between each of the arguments.
9 The appellant argued, variously, 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 these capacities, he could satisfy the primary rule set out by Henchy J. at p. 286 of the decision in Cahill v. Sutton [1980] I.R. 269 in that his interests "have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute". However, 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. I think that this proliferation of arguments, if anything, served to cloud the issue. I propose, therefore, to approach the case, in the first place at least, by considering whether the appellant can establish the primary and most commonly applied ground for standing by demonstrating that his interests have been or stand in real danger of being adversely affected by the operation of the statute. I will do so (again, at least in the first place) by reference to his status, first, as a candidate, and second, as a member of a political party.
Discussion
10 Locus standi is often invoked in the case law, but as the editors of Kelly: The Irish Constitution (5th edn., Bloomsbury Professional, 2018) have observed, it is neither precisely nor fully developed. It is often encountered alongside the rule against jus tertii , i.e. the rule against advancing claims based on the rights of others to which locus standi is closely related. They are, however, conceptually distinct. Cahill v. Sutton [1980] I.R. 269, which remains the most developed discussion of locus standi in Irish law, neatly illustrates the distinction, since it is, itself, a case decided on the jus tertii rule. The interest of the plaintiff, Mrs. Cahill, in advancing litigation to recover compensation for personal injuries, was undoubtedly adversely affected by the operation of the Statute of Limitations 1957 ("the 1957 Act"), since her claim was barred by the terms of the statute. Accordingly, she certainly had locus standi to challenge the Act. However, what she could not do was advance arguments on a hypothetical basis which did not arise from the facts of her case. In particular, she could not advance arguments as to the possibility of the unfairness of an absolute time bar contained in the 1957 Act for a claimant who might not know of the possibility of a cause of action before the expiry of the limitation period, in circumstances where, in her case, she was admittedly aware of the possibility of a claim at all stages after the accident. Thus, she was prevented by the jus tertii rule from asserting such arguments in her case, and since that was the only basis upon which she argued the statute was repugnant to the Constitution, her claim failed.
11 The decision in Cahill v. Sutton [1980] I.R. 269 contains an important discussion on the justification for a rule of locus standi (and, indeed, for the other prudential limitations on claims challenging the validity of legislation by reference to the Constitution). Standing is not, as a general rule, established by a simple desire to challenge legislation, no matter how strongly the putative claimant believes the provision to be repugnant to the Constitution. It is now clear that there is no actio popularis (a right on the part of a citizen to challenge the validity of legislation without showing any effect upon him or her, or any greater interest than that of being a citizen) in Irish constitutional law, although, of course, some jurisdictions do permit such claims. Rather, in Irish law, it is necessary to show some adverse effect on the plaintiff either actual or anticipated. Part of the rationale for this rule is discussed in Cahill v. Sutton . Public general legislation exists because a majority of the members of the Oireachtas considered, at some stage, that the legislation was in the public interest. The particular provision challenged may indeed still operate entirely beneficially and helpfully for the great majority of cases. If such a provision is invalidated, it is, in principle, of no effect in law and the area is left unregulated, with the result that citizens may be deprived of the benefit of the provision. The invalidity of legislation is therefore a very significant disruption of the legal order which operates in a blunt and, essentially, negative way. It simply removes a law or an aspect of the law, can put nothing in its place, and yet can throw into question transactions taken on foot of the provision. As Henchy J. in the High Court put it more than a decade earlier in State (Woods) v. Attorney General [1969] I.R. 385, at p. 399:-
"It unmakes what was put forth as a law by the legislature but, unlike the legislature, it cannot enact a law in its place. It is clear that if this power, which may seem abrogative and quasi-legislative, were used indiscriminately it would tend to upset the structure of government."
12 The step of permitting a challenge to the constitutional validity of a piece of legislation should not, therefore, be taken lightly, simply because someone wishes, however genuinely, to have the question determined, but rather should only be taken when a person can show that they are adversely affected in reality. Courts do not exist to operate as a committee of wise citizens providing a generalised review of the validity of legislation as it is enacted, nor should courts become a forum for those who have simply lost the political argument in the legislature to seek a replay of the argument in the courts, repackaged in constitutional terms. On the contrary, the question of the validity of legislation is treated by Article 34.3.2° as part of the jurisdiction of the Superior Courts only, established under Article 34.1, whose function it is to administer justice between the parties. This normally requires a real case or controversy which the parties require (rather than simply desire) to be resolved in order to establish and justify the court's exercise of jurisdiction, and the possibility of the invalidation of legislation. Accordingly, it is necessary to show adverse effect, or imminent adverse effect upon the interests of a real plaintiff. This has the further benefit, as Henchy J. observed in Cahill v. Sutton [1980] I.R. 269, at p. 282, that:-
"normally the controversy will rest on facts which are referable primarily and specifically to the challenger, thus giving concreteness and first-hand reality to what must otherwise be an abstract or hypothetical legal argument".
13 In the aftermath of Cahill v. Sutton [1980] I.R. 269, it was therefore clear that there was a requirement to establish standing before a court was obliged to entertain a challenge to the validity of legislation. The circumstances which would justify a relaxation in the primary rule remained for determination, and some of those circumstances were indeed explored in subsequent years. In terms of the primary rule itself, it was certainly established that it was sufficient to show that a plaintiff's interests had been adversely affected or stood in real or imminent danger of being adversely affected by the operation of the statute. What remains to be determined, and perhaps arises in this case, is what precisely is meant by a person's interests being "adversely affected".
14 It should be noted that some countries have a very strict requirement of establishing actual harm before a legislative provision may be challenged. For example, in certain jurisdictions, a person may only be permitted to challenge a criminal provision if they are the subject of a prosecution under the statute, and sometimes indeed only if convicted under the impugned provision. The important decision in Norris v. The Attorney General [1984] IR 36 shows that Irish law just does not go that far. It is enough that the plaintiff is, or can plausibly claim to be, affected or likely to be affected in a real way. This can be illustrated from the facts of that case. The plaintiff there wished to challenge s. 61 of the Offences Against the Person Act 1861 (providing for punishment for the crime of buggery), and s. 11 of the Criminal Law Amendment Act 1885 (dealing with the offence of gross indecency with a male person). Demonstrably, he could not claim, and did not claim, to have been convicted, prosecuted, charged, or even threatened under either provision, and it was argued that he had neither suffered nor was in danger of suffering in any way from the operation of the legislation he sought to challenge. However, the Supreme Court unanimously rejected that contention. As O'Higgins C.J. put it at p. 59 of the report:-
"as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened and the plaintiff has standing to seek the protection of the Court."
15 The case also helpfully illustrates another aspect of the law. The plaintiff, while permitted to challenge s. 61 of the Offences Against the Person Act 1861, was not permitted to challenge it on the grounds that it infringed the rights of marital privacy, since the plaintiff was not married, and marriage, at that time, was reserved to a union between a man and a woman. The plaintiff was not in a position, therefore, to assert any claim of infringement of marital privacy and such a claim fell foul of the rule against jus terti . However, the primary finding that Mr. Norris had standing to challenge the provision in question is, in my view, a useful guide to the understanding of the concept of the adverse effect on interests and the manner in which it has been applied in Irish law.
Effect on interests, not rights
16 It is, I think, noteworthy that Henchy J. speaks in terms of a person's ‘interests' being affected, rather than his or her rights. This, in my view, is logical, even if there is little harm in conflating the two questions in most cases. Strictly speaking, however, the first question is whether a person's interests are affected by the provision in question. ‘Interest' is a deliberately broad term, extending beyond constitutional or even legal rights. It is sufficient if a person is, therefore, affected in a real way in in his or her life. If so, they normally have standing, at least, to contend that the operation of the Act upon them breaches some constitutionally protected right. It is not, I think, necessary to decide if it would be correct to describe a claim which failed because the plaintiff did not have the constitutional right contended for as a failure of standing, or an absence of an essential element of a claim. In general, it is at least a useful preliminary approach to ask if the Act affects the plaintiff as a matter of fact. Normally this will be enough to establish standing to challenge the Act, although it will not determine the range of arguments that may be deployed, and clearly does not determine whether any such argument which the plaintiff may be entitled to make will succeed.
17 It is, however, useful to keep in mind the rights asserted by the appellant. These were described as the right under Article 16.1.1° to stand as a candidate; the right to equal treatment under Article 40.1; and the right to freedom of expression, assembly, and association under Article 40.6.1° of the Constitution. I must say that I doubt that it is either necessary or useful to consider the extent to which Article 16.1.1° creates a right to stand as a candidate, and if so, the limits of any such right under the Constitution or by law. That is because there would not appear to be a right to stand as a candidate of a particular political party, which is what was in issue in these proceedings. If issues of freedom of expression or assembly arise, they do so, if at all, in a manner subsidiary to freedom of association guaranteed by Article 40.6.1°, which the appellant, as a member of an unincorporated association and, in this case, a political party, is entitled to assert. This case can, I think, most helpfully be considered by reference to the constitutional rights of equality and freedom of association. The appellant, as a citizen, also has a right to be held equal before the law as a human person as guaranteed by Article 40.1. That is normally understood to comprehend a right not to be discriminated against by law unjustifiably on grounds such as gender. Here, the appellant sought a nomination as a candidate, and was excluded exclusively on grounds of gender: an exclusion he contends was caused, or contributed to, by the legislative provisions he seeks to challenge in these proceedings. Moreover, he was a member of an unincorporated association, in this case a political party, and thus was exercising his freedom of association. In the normal course, the making of decisions by members of political party or local branch on the nomination is an exercise of that freedom. He contends that that process was interfered with, impermissibly, by s. 17(4B) of the 1997 Act. It is important to emphasise that the mere fact that a constitutionally protected right for freedom is affected does not mean that a legislative provision is repugnant to the Constitution, since it would be necessary to establish that any interference was unjustifiable or impermissible. However, the effect on the person and his or her rights would normally be sufficient to permit that person to argue that such interference was indeed unjustifiable.
18 On this basis, the appellant's interests, both in the broad sense of his personal interest in being selected as a candidate and his interest in participating in the nomination process as a member of the party, and the more specific sense of the rights (of equality) and freedoms (of association) he asserts under the Constitution would appear, at least prima facie , to be affected by s. 17(4B). Any requirement of adverse effect (if such must be demonstrated) would also appear to be satisfied both in the general sense that the impact he alleges of the legislation was unwelcome to him, and in the specific sense that he lost the opportunity of being selected as a candidate and indeed of participating in the selection process containing male candidates. At first blush, this would seem sufficient to establish standing, but it is apparent that by reason of a series of arguments accepted by the High Court and Court of Appeal, it was concluded that in the words of the High Court judge, at para. 85 of the judgment, that the legislation did not have "any, or any sufficient" effect on the appellant's interest. It is necessary, accordingly, to address these arguments in turn.
No adverse effect in fact established by the evidence
19 The argument that the 1997 Act had no effect on the appellant depends, also, on the contention that this was a finding of fact made by the High Court, and now not capable of being set aside on appeal. There is no doubt that the appellant's evidence was limited, and that he did not call any other witness as to fact or any expert evidence. However, he did give evidence, without apparent objection, that he was informed by the Fianna Fail party that the directive was issued because of the 1997 Act, and that the party had no choice but to comply with the legislation, as recorded at para. 24 of the judgment of the President of the Court of Appeal. However, the Court of Appeal concluded that certain findings of fact made in the High Court were fatal to the applicant's contention. These appear to be the findings at para. 71 of the High Court judgment that the appellant had failed to satisfy the High Court that a 50% reduction of the funding otherwise available to the party under s. 17 of the 1997 Act would make it impossible - or, for that matter, significantly difficult - for the party to continue to function. Furthermore, at para. 73, the trial judge rejected what was described at para. 72 as "a second proposition of fact central to the plaintiff's arguments" that the only effective means available to the party to meet the candidate gender quota was to exclude him as a male nominee from the party's Dublin Central candidate selection convention such that the court "should be satisfied that it is a requirement of s. 17(4B), rather than the exercise of any discretion by the party's NCC, that resulted in the plaintiff's exclusion from that selection contest". The High Court judge considered that the proposition flew in the face of the evidence that other strategies were available to political parties to meet the candidate gender quota other than a gender directive, such as all-women shortlists; a minimum candidate list; a requirement that at least one candidate must be female in any constituency where the party proposes to run more than one candidate; open constituencies where women candidates are run in some or all of the constituencies where the party has no incumbent T.D.; or add-on candidates where a party decides to add a woman candidate to the candidates already selected locally.
20 Accordingly, the judge considered at paras. 73 and 74 that when the Fianna Fail party made the decision to adopt the directive, "it did so in the exercise of its discretion", and, accordingly, the appellant had "failed to satisfy" the High Court that his exclusion from the Dublin Central Candidate selection convention was a requirement imposed on the party by s. 17(4B) of the 1997 Act, rather than a decision made entirely at the discretion of the party. Further, the High Court rejected what was described as a third factual proposition, namely that in the absence of a "coercive statutory candidate gender quota", the party would not have sought to implement a candidate gender quota at all, and the direction would not have issued. This was a proposition the High Court judge considered was implicit in the appellant's reply to particulars that, in the absence of statute, he would be entitled to be freely considered by the party as a candidate in the forthcoming general election. This contention, however, ran counter, he considered, to the evidence that Fianna Fail had supported the legislation and its passage to the Oireachtas, and welcomed it in a press statement issued on 13 December 2011, although the appellant relied on the fact that, at the party's 2012 Ard Fheis, the introduction of such quotas was rejected by delegates.
21 The court concluded, at para. 81, that the appellant had failed to satisfy it that "were it not for the provisions of s. 17(4B) and the funding sanctions it contains, the party would not have sought to implement a candidate gender quota for the forthcoming general election and that, in consequence, the party's NCC would not have issued the direction that it did in respect of the Dublin Central candidate selection with the result that the plaintiff would have become eligible to be freely considered by the party as its candidate for the Dublin Central constituency". The Court of Appeal also appears to have considered that the appellant's claim that he was adversely affected by the section in a manner sufficient to challenge its constitutional validity must fail.
22 There is no doubt that if, on hearing evidence, a court is satisfied that the impugned provisions had no effect upon a person, let alone on their interests or rights, that that would be fatal to the claim proper and, indeed, to the plaintiff's standing to bring the claim, unless one of the exceptions to the primary rule of standing can be established. It is, however, plain to me that the findings in the High Court fall short of establishing that s. 17(4B) had no effect upon the appellant, his interests, or rights. It may be that the appellant made assertions or put his case in strong terms which the court considered were not sustained by the evidence. It is also true that the court's findings amount to a conclusion that the appellant's non-selection for consideration as a possible candidate was not caused exclusively, or coerced, by the provisions of s. 17(4B). It will be necessary, shortly, to consider whether that finding is fatal to the appellant's standing, or whether it is sufficient that it is shown that the section has some non-trivial effect on the appellant's interests. However, the focus at the moment is on the question of whether the court's findings amounted to a finding that there was no effect upon the appellant's interests which, as discussed, would, if made and sustained on appeal, be fatal to the appellant's claim.
23 Common sense should not be entirely expelled from these matters. Legislation is enacted to change the legal position and often to change behaviour. The plain intention of the amendments effected by s. 42 of the 2012 Act was to change the behaviour of the political parties when selecting candidates for a general election. While s. 17(4B) of the 1997 Act is expressed in gender-neutral terms in the legislative text, it must be recognised that, when it takes effect, it must, of necessity, operate to promote a candidate on gender grounds and, therefore, in many cases to adversely affect rival candidates on gender grounds. That is not a by-product of the section: it is intended to change candidate selection behaviour along one metric, that of gender. In this case the appellant was a prospective candidate seeking nomination at the first general election at which the s. 17(4B) became operative. He was excluded from selection on gender grounds. It would require comprehensive evidence and cogent findings of fact to persuade any reasonable person that the outcome for the appellant was not, in some way and to some extent, at least affected by the existence and operation of s. 17(4B).
24 It is, however, apparent that far from finding no effect on the appellant's removal from selection, both the High Court and the Court of Appeal judgments appear to accept that the section had some effect on the appellant at a minimum. Indeed, the discretion to which the High Court judge referred at para. 73 of his judgment was a discretion as to the manner of implementation of s. 17(4B). It followed, therefore, that the directive issued by Fianna Fail, of which the appellant fell foul, was an implementation of the section of which the appellant seeks to complain. If so, this is an example of the impugned section having an effect upon the appellant's interests. In the Court of Appeal, the President recorded, at para. 17, that the High Court judge had found that Fianna Fail was "more obviously and directly affected by the claimed prejudice than was Mr. Mohan" which nevertheless implies that Mr. Mohan was affected, though not as much nor as directly as Fianna Fail. At para. 25 of his judgment, the President said "[i]t also cannot be the case that a member of a party is directly affected, although I understand that point that each member is affected , whatever consequence for standing that may involve". Again, at para. 42, it was observed " It is clear that various modes of implementation of the measure were available to the party other than the one they selected and which is the basis of the plaintiff's assertion that he was rendered ineligible as a candidate". Later in the same paragraph it was said "the party decided it would implement the Act in this way ". Again, this is a realistic recognition of the fact that the directive issued to the branch was an implementation of the section. In the following paragraph, after recording the appellant's complaint that the party was no longer "wholly free to choose the gender of its candidates are [sic] general elections", the learned President observed: " That indeed is the whole point of the measure , as it seems to me". At para. 46, it was acknowledged that there "is a sense in which the plaintiff is correct to say that this law affects him and other members of his party and other parties when it comes to selecting candidates". Finally, at para. 49 it is said that "[t]his measure is directed to political parties. It affects members of parties but not directly" (my emphasis in each of the passages).
25 It is true that the appellant appears to have made what the judge considered to be the exaggerated claim that the legislation "coerced" the party to adopt the directive, because it was said that a modern political party could not function at all without 50% of its public funding, and those contentions were rejected by the trial judge. However, that cannot be fatal to standing unless it is necessary to show such a degree of compulsion rather than an effect on the appellant's interests which hitherto has been the test. The editors of Kelly: The Irish Constitution (5th edn., Bloomsbury Professional, 2018) at para 6.2.169 comment on the approach in this case that this "very high burden of proof is probably not possible to meet in many cases, and does not seem to accord with previous practice." I agree. Although it remains to be considered whether the degree of effect upon the appellant was insufficient to establish standing, it cannot be said that the appellant was not affected at all by the provision. It should be apparent that all that is being decided here is that an effect on the appellant has not been excluded so as to deprive him of standing to challenge s. 17(4B) of the 1997 Act. This does not imply that the substance of the claim has any necessary merit. It is apparent, even from this remove, that the claim faces some formidable hurdles.
Not sufficiently affected
26 At para. 85 of the High Court judgment, it was stated that the appellant "had failed to establish any, or any sufficient, causal nexus between the direction of the party excluding his nomination from consideration at the relevant candidate selection convention and the operation of [s. 17(4B)]". This appears to leave open the possibility that standing could be, and in this case was, refused because, although there was some effect on the appellant's interests, it was insufficient. It should be noted that no authority is cited to justify this conclusion, which appears inconsistent with principle. At para. 89 of the High Court judgment, the High Court judge quoted the passage from p. 283 of Henchy J.'s judgment in Cahill v. Sutton [1980] I.R. 269 that "[t]here is also the risk that the person whose case has been put forward unsuccessfully by another may be left with the grievance that his claim was wrongly or inadequately presented". The High Court judge concluded at para. 90 that to concede standing to the appellant insofar as he sought to make a case in relation to the party's funding requirements, financial resilience, internal constitutional arrangements, and external policy positions "would be to run the grave risk of leaving the party with a well-founded grievance that any case it might wish to make in that regard had been wrongly or inadequately presented". The portion of the judgment of Henchy J. referred to here is addressed to the position where a jus tertii is asserted: that is, where a claim is made on the factual situation pertaining to another person or entity. In such circumstances, it is logical that one of the objections to such a course is the unjustified interference with the case that the third party may wish to bring. While these arguments are interrelated (and it will be necessary to address the argument that the appellant was attempting to assert a jus tertii - the rights of the political party - later in this judgment), it is clear that this passage cannot and does not support any contention that standing can be measured on a scale, and that some undefined point exists at which sufficient standing can be identified, nor that there can only be one person with standing to challenge legislation.
27 It is, perhaps, conceivable that in some cases it might be found that the effect of legislation was so attenuated and remote as to be de minimis . However, that could not be said to be the case here. If the appellant was affected by s. 17(4B) of the 1997 Act and excluded from possible selection, that could not be discounted as entirely trivial. Any approach which would suggest that there is a degree of effect that, at some level, though measurable, would nevertheless be insufficient to establish standing appears contrary to the general principle. Normally, the question is whether a person has standing because they are affected by the legislation or not. The principle of locus standi is a threshold requirement designed to exclude those who have no real connection to the legislation which they seek to challenge. The only consequence of a finding that an appellant has locus standi is to permit him or her to argue that the legislation is unconstitutional. If standing could be denied because the impact of the allegedly unconstitutional legislation on a person, though real, was deemed insufficient or because it was possible to hypothesise a person more clearly affected by the Act, then litigation on such matters would become an unpredictable and hazardous game of chance. The purpose of the rule is not to identify the person with the best claim and prevent anyone else from bringing a claim: it is to exclude those who have no possible interest, and no claim to justify having the rule relaxed.
The position of the political party
28 A central feature of the argument that the appellant lacked standing is the undoubted fact that the political party, in this case Fianna Fail, is the focus and addressee of the legislation and, therefore, would have undoubted standing to challenge its operation. At different times, it appears even to have been asserted that the political party, in this case Fianna Fail, was the only entity which could challenge the legislation, and thus any attempt by an individual to challenge it would be to assert a jus tertii . At para. 36 of the judgment of the Court of Appeal it is recorded that the written submissions on behalf of the respondents stated:-
"The fundamental problem that the Plaintiff faces is that, in the present case, the Fianna Fail party has not challenged the contested position nor voiced any objection to it. This is unsurprising given that the party in fact supported this provision. In fact, as the Judgment finds, current Fianna Fail policy appears to go further than section 17(4B) and to extend its application to local elections. But it is not an answer to this point to suggest that Fianna Fail may not wish to challenge section 17(4B). In the first place, as a matter of first principle, the fact that a party with standing does not seek [to] challenge and [sic] enactment does not confer standing on a party without it."
29 There is no doubt that Fianna Fail, or any other political party could, in appropriately constituted proceedings, challenge the legislation, and none have done so. However, the fact that one person or entity has standing does not necessarily lead to the conclusion that someone else does not. The only test is whether each person is affected in his or her interests by the legislation (or can assert a reason for relaxing that requirement). There are, moreover, some clear difficulties with the suggestion that the political party had standing to the exclusion of the appellant or any other person, whether a member or not. First, a political party, although a large feature of the national landscape, is not mentioned anywhere in the Constitution. Furthermore, a political party is not a separate legal entity from its members. It appears to be accepted that a political party is an unincorporated association. This has the consequence, for example, that property is held by trustees, and claims must be brought by or against a member or members representing the entire membership of the body, including, in this case, the appellant. In other words, in any claim, the party would be asserting the rights and interests of the appellant, among others. It is not obvious why that possibility should mean that the appellant should be disabled from asserting his claim on his own behalf. Furthermore, and in any event, there is no necessary identity between the claims the party might properly advance and those which may be made by Mr. Mohan. In particular, he contends that the operation of the statute treats him unequally before the law contrary to Article 40.1 of the Constitution. That is not a claim that the party (or any representatives of it) could readily advance on its own behalf, since the operation of the legislation does not distinguish in any way between political parties on any grounds. Mr. Mohan can and does claim that he is being treated unequally on gender grounds. Moreover, the claim arises in this case out of something which he contends the party has done to him while influenced by s. 17(4B), which he wishes to challenge. Plainly, that is not a claim the party could advance on Mr. Mohan's behalf. These observations are enough to demonstrate that the fact that Fianna Fail may have standing cannot logically lead to the conclusion that Mr. Mohan does not. They also illustrate the wider point that the party and Mr. Mohan are in different positions, and would therefore have different, if overlapping, claims.
A derivative claim
30 A related point is the suggestion, recorded at para. 39 of the Court of Appeal's judgment, that Mr. Mohan's claim is derivative of Fianna Fail's rights, in the sense that Fianna Fail, as a political party, is the body or entity which is the primary object of the legislation, and it is through the action of the party in issuing a directive that Mr. Mohan is affected at all. The reference to a derivative claim calls to mind, perhaps deliberately, the class of claims brought in respect of the rights of a limited company by one of its members. Courts are familiar with the idea that it is only in exceptional cases that members of a limited company will be allowed assert a claim on behalf of the company. However, this analogy, if it is intended to justify Mr. Mohan's lack of standing, appears flawed. The law on derivative actions is a consequence of the fundamental legal principle that a company is a separate legal entity to its members. As already observed, however, a political party is not a separate entity from its members. In any event, there are exceptions to the rules against derivative actions on the part of limited companies which would have to be explored if the analogy was to be applied. Finally, and perhaps most obviously, Mr. Mohan is not attempting to assert a cause of action that belongs to the party. Instead, he seeks merely to advance his own claim arising from his own circumstances.
31 There is no doubt that the existence of the political party and Mr. Mohan's membership of it is relevant in this case, and may be relevant to the issue of standing. The strongest argument that can be made in this regard, in relation to the position of the political party, is perhaps the suggestion that freedom of association is a collective rather than an individual right, and the proceedings claiming an impact on freedom of association can only be brought by that collective body. This argument is not made directly or elaborated upon, but it seems to be an underlying theme of the respondents' argument.
32 I am prepared to accept, for the purposes of this argument, that there are certain classes of claims that members of an unincorporated association cannot pursue alone (although, if the issue were to arise, it would require considered argument and a consideration of relevant authority). Thus, for example, if there was a trespass in respect of property belonging to a sports club, it may be that an individual member could not sue to restrain it or seek damages. Similarly, it may be thought that, if there is a constitutional claim in relation to the property rights of the association, that would be something which would have to be determined to be pursued by the collective decision of the association, and if it did not pursue it, it is certainly conceivable that there would be difficulties with a member seeking to do so. Furthermore, if it was within the power of the association to resolve that it would not only accept legislation, but also that no action should be brought by any member in relation to it, then that might have some bearing on the standing of the individual member who took a different view and wished to commence proceedings, although it is more likely that it would be a matter of private contract rather than standing.
33 However, none of those issues arise here. There is no doubt that freedom of association does not mean that an individual has a right to force himself or herself upon a group which does not wish to associate with him or her: see Tierney v. Amalgamated Society of Woodworkers [1959] I.R. 254. But until now, it has not been considered that freedom of association was only and exclusively a collective right , i.e . a right that could only be asserted by the collective body rather than an individual. Rather, until now, it seems to have been accepted that there is an individual component to freedom of association. While it is necessary that others are willing to associate with the citizen, the citizen, nevertheless, has an individual freedom to associate which they can choose to exercise or not. Thus, in the well known case of Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [1961] I.R. 345, it was established that the freedom of association guaranteed by Article 40.6 implied an individual right to dissociate. This right was, in turn, deduced from the individual right to associate. In that case, Budd J. quoted the dictum of Murnaghan J. in National Union of Railwaymen v. Sullivan [1947] I.R. 77, at p. 101, that "each citizen is free to associate with others of his choice". Budd J. continued at p. 365 of Fitzpatrick that: "[s]ince he has the choice he can surely exercise it so as not to associate with those he does not want to associate with". Thus, it does not appear that membership of an association precludes an individual asserting that legislation directed towards the internal workings of that association is an impermissible interference with his freedom of association.
Indirect effect
34 A further variation on the argument is the suggestion that s. 17(4B) of the 1997 Act operates directly on the political party, and therefore only indirectly on aspiring candidates such as Mr. Mohan. It is, again, possible, perhaps, to conceive of some cases where the impact on a complainant is such an oblique and unintended by-product of the operation of the legislation that it might be regarded as insufficient to justify standing to challenge the Act. To take an extreme (and perhaps fanciful) example, if legislation had the effect of so constraining a business that a factory closed down, it is unlikely that a local publican whose business diminished could have standing to challenge the legislation. However, that is really the operation of a principle of remoteness and causation rather than of indirect effect.
35 Hitherto, the fact that the effect on the plaintiff was indirect has not been seen as an objection to standing: Fleming v. Ireland [2013] IESC 19, [2013] 2 IR 417. The editors of Kelly: The Irish Constitution (5th edn., Bloomsbury Professional, 2018) comment, at para. 6.2.142, fn. 384, that the issue in this case "could be framed as an indirectness issue, but was not. Had it been, one might think that it should have been resolved in the same manner as Fleming , since the primary effect of the law was on the candidates the political parties might select". In S.P.U.C. v. Coogan [1989] I.R. 734, Walsh J., at pp. 746 to 747, described the exceptions to the primary rule in Cahill v. Sutton [1980] I.R. 269 as arising when a person "whose personal interest is not directly or indirectly presently or in the future threatened" was nevertheless permitted to bring proceedings. Indeed, the suggestion that the indirect nature of the impact on Mr. Mohan deprives him of standing illustrates, in my view, a more serious error, if I may say so, in the approach taken in the High Court and the Court of Appeal. This treats the impact on the candidate as a somewhat random by-product of the direct effect on the political party. However, the indirect effect of this section is fully intended and, indeed, is the objective of the legislation.
36 The 1997 Act is not concerned with the funding of political parties in the sense that it is not an objective of the legislation to reduce the funding of parties with a less than specified percentage of candidates. The objective of the s. 17(4B) is, rather, by threatening such a reduction, to secure a particular percentage of candidates of one gender at the next general election. The true objective of the legislation is to influence the candidate selection process, which was, of course, the very process Mr. Mohan was engaged in. If the 1997 Act had sought to directly regulate that process by, for example, creating an authority with a power to veto candidates, it would, I think, be impossible to consider that an individual whose candidacy was rejected would not have standing to challenge the Act. The fact that such an objective is sought indirectly by threatening the withdrawal of 50% of the party's public funding may well have an impact on the analysis of the provision's compatibility with the Constitution, but it could not have the effect that standing is lost. It would, indeed, be a significant weakening of constitutional protection if the intended indirect effect on constitutional rights was no longer something that could be challenged under the Constitution. In Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [1961] I.R. 345, this was addressed by Kingsmill Moore J. who stated, at pp. 396 to 398:-
Once again, in Meskell v. Coras Iompar Éireann [1973] I.R. 121, at p. 134, Walsh J. stated:-
"To infringe another's constitutional rights or to coerce him into abandoning them or waiving them […] is unlawful as a violation of the fundamental law of the State."
I do not think that the indirect nature of the impact on the appellant of the legislation in this case is a basis for denying him standing. It clearly remains to be determined whether the impact here is such as to render the provision repugnant to the Constitution. As was stated by Denham C.J. in Fleming v. Ireland [2013] IESC 19, [2013] 2 IR 417, at pp. 438 to 439, the considerations which may apply in balancing competing interests may not be the same in cases of indirect, rather than direct, interference. But the argument that, simply because the Act operates indirectly, no individual so affected has standing to raise the question of the validity of the legislation is, in my view, misconceived and contrary to both authority and principle. If the party can show a "real and significant effect" of the statute on him or her (see Fleming , p. 440), then they will have standing to sue. I am satisfied that the appellant has shown sufficient effect upon him to be entitled to challenge the validity of the provision.
37 By order dated 4 July 2018, this court granted leave to appeal against the decision of the Court of Appeal that the appellant lacked standing (see [2018] IESCDET 98). Subsequently, Kelly: The Irish Constitution (5th edn., Bloomsbury Professional, 2018) was published, and, as already touched upon in this judgment, contains a number of comments on the decisions under appeal. A more extended treatment of the issue is to be found at para. 6.2.144. There, it is said that:-
"In Mohan v Ireland , Keane J. dismissed the plaintiff's claim against the provisions of s 17(4B) of the Electoral Act 1997 […]
Keane J. said Mr Mohan lacked standing because he could not show that the party was influenced by the law; the party might have implemented a quota in any event, since the party was broadly supportive of the idea. With respect, this argument is misplaced. The evidence for the party being uninfluenced by the Act was in any event weak, but more importantly, it was irrelevant because the party made its choices that affected Mr Mohan under the influence of the Act - the Act was actually in force at the time. It would be completely impossible to know if the party would have acted the same way without the Act in place. The Act was one of a number of factors that influenced the decision, and so contributed to the prejudice to Mr Mohan's interests. He was the subject of a decision that disadvantaged him, and that decision was made by a body that was affected by the 2012 Act, and the decision was relevant to whether that Act would have consequences for the party's funding. Mr Mohan clearly was affected by the law and had standing to challenge it.
Keane J. believed the plaintiff had to prove ‘that, in the absence of a coercive statutory candidate gender quota, the party would not have sought to implement its candidate gender quota at all.' The Court of Appeal reached a similar conclusion: ‘the question is whether on a proper interpretation of the provision the consequence followed'. This could not be the required standard because this would be impossible to prove given the complexity of the factors involved. The plaintiff's burden is surely to show that there is a plausible case that the disadvantage he suffered is linked with the operation of the Act in question."
38 For the reasons set out above, I agree. I consider that the appellant has standing under the primary rule in Cahill v. Sutton [1980] I.R. 269. Accordingly, it is not necessary to go further and consider whether if such standing could not be established, the appellant might be able to bring himself within one of the exceptions contemplated in Cahill v. Sutton . Those matters only arise if it is not possible to establish "prejudice or injury peculiar to the challenger".
Further proceedings
39 I have addressed the issue of locus standi at some length because we are differing from the courts below. It necessary however to emphasise the threshold nature of the question of locus standi and the approach to be taken to it. However, in stating the legal position as I understand it, I would not wish any emphasis of expression to be understood as being in any way referable to the substantive issue, which was not addressed in argument, and which remains to be decided. It is entirely possible that, at a full hearing, the appellant's case will be found to be utterly lacking in substance, both in fact and in law. The only issue this judgment addresses is whether the case should have been dismissed on grounds of standing, and, if not, what course should now ensue.
40 Although this case was fully argued in the High Court, the trial judge considered that, having come to this conclusion on locus standi , he should not proceed to determine or even make any observations upon the substantive claim. The logic of treating locus standi as a preliminary issue, and the general rule of avoidance which ensures that the question of the invalidation of a statute is only reached if the case cannot be determined on some other ground means, in my view, that the trial judge had no other option. It is only necessary to consider the consequences which would follow if, having determined the appellant lacked standing, the court nevertheless went on to express the view that the section was repugnant to the Constitution. However, in Dunnes Stores Ireland Company v. Ryan [2002] 2 IR 60, at p. 98, Murray J. (as he then was) expressed unease with the practical consequences of the application of this rule in the light of both the length of time necessary for proceedings and appeals to be determined, and the cost of such proceedings. Where the issue is one of the law, albeit grounded in particular facts, it may be possible, as contemplated in Dunnes Stores Ireland Company v. Ryan that an appellate court could proceed to hear argument on and determine the constitutional issue, so long as it had been argued in the court below, if it came to the conclusion that the court below had been wrong in its determination of the non-constitutional issue or the preliminary issue, as the case may be, and it was possible to address the further issue of the validity on the basis of legal argument on the facts found or agreed. This issue, however, could not arise in this case, because the Court of Appeal upheld the decision of the High Court on locus standi and, in any event, argument in the Court of Appeal was limited to the question of locus standi , which was the sole issue in respect of which leave, could be, and was, granted by this court.
41 Accordingly, it is necessary to remit this case to the High Court for a full hearing of the appellant's challenge to the validity of s. 17(4B) of the 1997 Act. This course may indeed be of some broader benefit in this case. The provision in question is clearly a sophisticated piece of legislation, which is the product of extensive debate and consideration of relevant materials, both national and international. Furthermore, it pursues an evidently important social goal. However, it seeks to achieve that object by a form of positive discrimination on gender grounds, and through a mechanism of controlling public funding for political parties, both of which are areas of constitutional sensitivity. It might be preferable, therefore, that the case be addressed on the merits rather than disposed of on the basis of standing. I would, accordingly, reverse the finding of the Court of Appeal, and find that the appellant has locus standi to challenge the provisions of s. 17(4B) of the 1997 Act. I would remit the matter to the High Court for the determination of the substance of the appellant's challenge to that provision.
