Mohan v Ireland

Section 17(4B) of the Electoral Act 1997 introduced a provision aimed at addressing a significant disparity in the sex of members of parliament in Ireland (“TDs”). Only 15.1% of TDs elected in 2011 were women. The figure has never exceeded 20%. The 2012 Act tried to solve this problem via candidate selection; it tied the level of political funding allocated to a political party to the gender balance of its candidates. From the first general election after the section came into force, a party would lose 50% of its public funding if at least 30% of its candidates in that election were not women (or if 30% of its candidates were not men). Seven years after that, the minimum requirement for each gender would increase to 40% or the same penalty would apply. The Act deals only with candidature, not election. It also does not compel a party to select any particular candidate, but instead penalises the party with a withdrawal of public funds for non-conformity. In this case, a member of a political party challenged the constitutionality of this measure on several grounds after his party did not select him as a candidate and informed him that their candidate “must be” a woman. He claimed that this was a result of the 2012 Act, in violation of several constitutional provisions, including the equality guarantee in Article 40.1; the right to free speech and association under Article 40.6; and the Article 16.1.1° guarantee that every citizen without distinction of sex is eligible for the Irish parliament. The High Court rejected these claims due to lack of standing; the plaintiff could not show ‘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’. The court was not satisfied that the party would not, without the influence of the 2012 Act, have implemented gender quotas of its own motion. This finding was upheld by the Court of Appeal. The Supreme Court found that the plaintiff had standing, but also acknowledged that this sophisticated piece of legislation was pursuing an important social goal through “positive discrimination” on gender grounds and controlling public funding for political representation. Therefore, the court found that the case could be addressed on its merits rather than decided on the basis of standing and remitted it to the High Court for a full hearing.