Constitutionality of Gender Quotas (in Ireland) given Article 16.1.3?

iptba

As many/most readers people here will be aware, Minister Phil Hogan has recently published a new bill encouraging gender quotas:

At the next general election political parties will have to select at least 30% women and 30% men candidates or face losing half their State funding. Seven years from the general election where this provision first applies, this will rise to 40%.

http://www.merrionstreet.ie/index.php/2011/12/minister-phil-hogan-publishes-legislation-to-comprehensively-reform-political-funding-and-donations/

I think this will mean that some male candidates in the future will be at a disadvantage because of their gender.

This would seem to me to in breach of Article 16.1.3 of the Constitution which states:

"No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex."

While I don't mind a general discussion of gender quotas, I would particularly like if a lot of this thread talked about the possible constitutionality or otherwise of the bill and/or discussed Article 16.1.13. For example, does anyone know much about the background to Article 16.1.3? Did they have specific scenarios in mind? Has it referred to much/at all in the past e.g. in the Oireachtas, courts, etc? Are there other articles in the Constitution of possible relevance to gender quotas?

johnnyskeleton

That doesn't prevent a politicial party running all males or all females, it just means that there will be less state funding for their parties.

IMO there should be no state funding for ANY political party; any such money should be seen as a benefit not an entitlement, and as such I can't imagine that the section infringes the constitutional protection against discrimination in membership of the dail.

Manach

The President can ask the council of state their opinion on the constitutionality. Then he can based, on their opinion, refer to the Supreme court?

gizmo555

johnnyskeleton wrote: »

That doesn't prevent a politicial party running all males or all females, it just means that there will be less state funding for their parties.

Wouldn't the candidates of a party which doesn't adhere to the proposed gender quotas, thereby losing state funding, be under a disability or incapacity, compared to the candidates of parties which receive state funding?

In the opinion of Michael McDowell the proposed law would be unconstitutional.

johnnyskeleton

gizmo555 wrote: »

johnnyskeleton wrote: »

That doesn't prevent a politicial party running all males or all females, it just means that there will be less state funding for their parties.

Wouldn't the candidates of a party which doesn't adhere to the proposed gender quotas, thereby losing state funding, be under a disability or incapacity, compared to the candidates of parties which receive state funding?[\quote]

The constitution protects against discrimination agains the citizen, not against political parties. The role of the courts in determining the disbursement of public monies is very limited.

In the opinion of Michael McDowell the proposed law would be unconstitutional.

While I agree with his sentiment that it is not a fair piece of legislation, I don't agree that it is unconstitutional, if that is what he is saying.

How specifically is it unconstitutional? What provision of the constitution does it violate?

gizmo555

johnnyskeleton wrote: »

The constitution protects against discrimination agains the citizen, not against political parties. The role of the courts in determining the disbursement of public monies is very limited . . .

Citizens who are candidates of parties which do not adhere to the proposed quotas could argue they are discriminated against because they don't get as much state funding for their campaigns via their parties compared with the candidates of parties which do apply the quotas.

Citizens aspiring to be candidates for parties which do apply the quotas could argue they are discriminated against if they don't get a nomination because they are the wrong gender so far as the quota is concerned.

johnnyskeleton wrote: »

How specifically is it unconstitutional? What provision of the constitution does it violate?

Well, IANAL, but as a layman it seems to me that art. 16.1.3 referred to above could be contravened for a start.

Frogeye

Does anyone one know the breakdown of male/female membership of the main parties? I would guess its way off 50/50

I had a quick look on the labour and FG websites to see if there was any indication of the % female membership of the parties. Didn't find anything, except on the FG site a reference to "working towards" 50% female membership.

Surely instead of imposing female candidates on the public with a quota system, it would be better to insist or at least encourage equal gender membership or similar in order to get funding and then let nature take its course with candidates? Or perhaps a party should have at a minimum the same percentage of female candidates running as it it has female members?

I do think this would be a lot harder to do ( you can't force people to join!) but maybe a fairer and better solution in the long term?

iptba

Manach wrote: »

The President can ask the council of state their opinion on the constitutionality. Then he can based, on their opinion, refer to the Supreme court?

A President may have that power. That doesn't mean they'll always use it.

Michael D. Higgins is from Labour where this initiative mainly comes from, as far as I can see. He is a sociologist who describes himself as a feminist: http://www.nwci.ie/news/2011/11/04/congratulations-michael-d-higgins-from-mna-na-heir/ .

Presidents tend to use this power sparingly. I would think there is a good chance Michael D. wouldn't be rushing to use it in this case. The odds might be a bit different with a different individual.

iptba

Frogeye wrote: »

Surely instead of imposing female candidates on the public with a quota system, it would be better to insist or at least encourage equal gender membership or similar in order to get funding and then let nature take its course with candidates? Or perhaps a party should have at a minimum the same percentage of female candidates running as it it has female members?

Yes, it seems to me to be a bit odd that a party could have have a membership which is, say, 20% female but be virtually forced to have 40+% female candidates.

Sulmac

iptba wrote: »

A President may have that power. That doesn't mean they'll always use it.

Indeed, particularly due to the fact that, once used and the Supreme Court finds the proposed law to be constitutional, it can never be challenged again - even if major issues come up down the line.

johnnyskeleton

gizmo555 wrote: »

Citizens who are candidates of parties which do not adhere to the proposed quotas could argue they are discriminated against because they don't get as much state funding for their campaigns via their parties compared with the candidates of parties which do apply the quotas.

Surely that is a choice that each private party can make, and indeed if the citizen is not happy with the situation they can break off and form their own private political party that does adhere to the quotas and ultimately receive state funding if they are successful.

gizmo555 wrote: »

Citizens aspiring to be candidates for parties which do apply the quotas could argue they are discriminated against if they don't get a nomination because they are the wrong gender so far as the quota is concerned.

Their claim would be against the party and would not, IMO be a challenge to the constitutionality of the provision.

gizmo555 wrote: »

Well, IANAL, but as a layman it seems to me that art. 16.1.3 referred to above could be contravened for a start.

Again, 16.1.3 relates to citizens being discriminated against. Moreover, it only protects against a disability or incapacity to be a member of the Oireachtas, which a gender quota does not do. Women and men are still perfectly entitled to run for, win and take up seats in the Dail, irrespective of whether their party engages in a quota system or not.

Don't get me wrong, I don't agree with the proposal. I just can't see how it is unconstituional.

iptba

This could go around in circles (if no other info is added).

I think we should look at what the article says:

"No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex."

I believe that if an entity gets half the money they would have got from the State for their campaign without the existence of the bill, they have be put "under disability or incapacity for membership of Dáil Éireann" (as having less money to spend on one's campaign disadvantages one (compared to the scenario without the bill)). Does anyone disagree with this interpretation? i.e. that a bill which halves how much one gets in State funding puts one at a "disability or incapacity for membership of Dáil Éireann." If we can't agree on that bit, it's hard to move on.

Zombrex

Gender quotas don't go against the letter of the constitution, since they do not prevent anyone from entering the Dail.

They do though go against the spirit of the constitution, since they are an attempt to control entry to the Dail through control of funding of political parties to ensure that the Dail takes a particular makeup along gender lines. It is undemocratic to manipulate political parties along particularly ideological lines such as these in order to qualify for funding.

I'm opposed to gender quotas, I think they are a silly short sighted way to white wash over an issue, and quite undemocratic.

The time, effort and money would be better spent tackling the barriers to entry women face in politics, not requiring that they be put forward so that we can all pretend these barriers to entry have just some how disappeared.

iptba

Zombrex wrote: »

Gender quotas don't go against the letter of the constitution, since they do not prevent anyone from entering the Dail.

But the constitution doesn't say it's only a problem if somebody is prevented from getting in - it says no law should put somebody at a disadvantage ("under disability").

"No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex."

gizmo555

johnnyskeleton wrote: »

Surely that is a choice that each private party can make . . .

Their claim would be against the party and would not, IMO be a challenge to the constitutionality of the provision . . .

IMO, if parties are being bribed/coerced by the state to discriminate between candidates in the way the state thinks they ought to, on pain of gaining or losing state funding, that amounts to discrimination by the state, albeit indirect discrimination.

johnnyskeleton wrote: »

Again, 16.1.3 relates to citizens being discriminated against. Moreover, it only protects against a disability or incapacity to be a member of the Oireachtas, which a gender quota does not do.

Well, I suppose it depends on how you read the word disability.

Corruptable

Erring on the side of caution when it comes to Irish constitutional jurisprudence I'm inclined to agree with Johnnyskeleton's assessment.

I think it's a case of something which should be unconstitutional, but having looked at the convoluted and often contradictory methods by which the courts reach their interpretations, mostly to coincide with public policy of the day, it's unlikely to be unconstitutional.

In my opinion there's plenty of wiggle room for a court to feel that a cut in access to funding isn't necessarily an absolute bar to someone entering the Oireachtas. It'd be more likely Article 16.1.3 is designed to prevent the outright barring of certain classes of people from entering the Oireacthas (e.g: similar to Nuremberg Laws in Nazi Germany).

But again, that's just my take on it. At the end of the day the courts, by means of deciding a case, are the only body that can provide a definitive answer.

iptba

Thanks for your feedback, Corruptable. Talk of other laws/what it was designed for is the sort of thing I was particularly interested in learning.

However, just on this specific point:

Corruptable wrote: »

In my opinion there's plenty of wiggle room for a court to feel that a cut in access to funding isn't necessarily an absolute bar to someone entering the Oireachtas.

to point out again that article in question doesn't just refer to "absolute bar" but placing somebody at a disadvantage ("under disability"):

"No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex."

Corruptable wrote:

But again, that's just my take on it. At the end of the day the courts, by means of deciding a case, are the only body that can provide a definitive answer.

I think generally if there is doubt whether something is constitutional or not, it's probably best to put the proposals to the people through a referendum. There isn't always somebody who can easily take a case e.g. in this case people who might be affected might not feel they have the resources in terms of their time and/or money to take the case and/or they might feel it would jeopardise any political aspirations they might have.

Corruptable

iptba wrote: »

Thanks for your feedback, Corruptable. Talk of other laws/what it was designed for is the sort of thing I was particularly interested in learning.

However, just on this specific point:

to point out again that article in question doesn't just refer to "absolute bar" but placing somebody at a disadvantage ("under disability"):

Yes, and like gizmo, I suspect the interpretation of that would be the base of which any case would turn, whatever the outcome.

I appreciate Michael McDowell's well thought out analysis, as was posted above, but bearing in mind the fact that our Constitution is both legal and political in nature, I would still narrowly share Johnnyskeleton's assessment.

It's certainly something I'd like to see more commentary on, especially from a legal perspective, both in the media and in the Oireacthas. In my opinion, it's a very blunt instrument which is poorly thought out and I have concerns as to whether it is appropriate and/or proportionate to problem it seeks to resolve.

It's dangerous ground to be treading on in my view. Despite the noble intentions behind the legislation, as too many of us are aware, legislation like this usually dissolves into a simple box ticking exercise with people simply meeting the quotas to get the funding without any proper consideration of candidates which are put forward.

Ellis Dee

If gender quotas are unconstitutional, I suppose the Government can always arrange a referendum to change the Constitution as required. As though they didn't have a lot of far more urgent problems to address and solve.:rolleyes:

For what it's worth - and as someone who has spent decades in countries where women have nearly half the parliamentary seats - I believe gender quotas are counter-productive. Genuine equality means creating a fairer and more level playing pitch for women to play a meaningful role in politics. Gender quotas will only devalue women and expose them to arguments like "she'd never be where she is if it wasn't for quotas".:)

Do like Sweden, Finland, Norway and Denmark have done: provide good day-care services for all children, high-quality school meals free of charge and that will be a start.

Those are countries where women have achieved real political power - and without gender quotas.:cool:

gizmo555

Ellis Dee wrote: »

If gender quotas are unconstitutional, I suppose the Government can always arrange a referendum to change the Constitution as required.

As they recently found, it's one thing to arrange a referendum, it's another to get it passed by the people.

iptba

Ellis Dee wrote: »

If gender quotas are unconstitutional, I suppose the Government can always arrange a referendum to change the Constitution as required. As though they didn't have a lot of far more urgent problems to address and solve.:rolleyes:

They are the people who are bringing the proposal forward at this time. Proposals of questionable constitutionality shouldn't be less likely to be put to a referendum (as opposed to being just put through the Oireachtas) at a "time of crisis".

johnnyskeleton

iptba wrote: »

This could go around in circles (if no other info is added).

I think we should look at what the article says:


I believe that if an entity gets half the money they would have got from the State for their campaign without the existence of the bill, they have be put "under disability or incapacity for membership of Dáil Éireann" (as having less money to spend on one's campaign disadvantages one (compared to the scenario without the bill)). Does anyone disagree with this interpretation? i.e. that a bill which halves how much one gets in State funding puts one at a "disability or incapacity for membership of Dáil Éireann." If we can't agree on that bit, it's hard to move on.

Well I don't agree because it doesn't say disadvantages an election campaign, it says disability or incapacity for membership. Membership in my view is not about winning an election, rather it is about whether when one has won the election, no law shall prevent one taking up one's membership of the Dail. Disadvantage, in my view, also falls far short of "disability or incapacity". The former is surmountable, the latter is not.

But that aside, you can't get past the first point, namely that the protection applies to citizens, not to political parties. So the "entity" being disadvantaged is not at all the same as the citizen being disadvantaged, even if disadvantaged were the test. If there is a constitutional issue on this, it may be that different parties are not receiving equal treatment. However, the difficulty with a claim based on equal treatment is that it is not an absolute prohibition, and the Oireachtas can have regard to "differences of capacity, physical and moral, and of social function". That is to say, any such act will only violate the protection of equal treatment if it is disproportionate to differences of capacity or of social function. So under such a challenge, the government could argue that it is necessary to redress the gender balance in Irish politics and that it is proportionate because there is no prohibition on any party not applying the quota, there is simply an incentive to do so. Further, they can justify it based on the legitimate aim sought to be achieved i.e. introduce more women into politics as perhaps a temporary matter.

iptba

johnnyskeleton wrote: »

Well I don't agree because it doesn't say disadvantages an election campaign, it says disability or incapacity for membership. Membership in my view is not about winning an election, rather it is about whether when one has won the election, no law shall prevent one taking up one's membership of the Dail. Disadvantage, in my view, also falls far short of "disability or incapacity". The former is surmountable, the latter is not.

I'm not a lawyer so am not used to legal language. I would have thought disability is not something inherently insurmountable.

I hadn't realised the distinction you were trying to make being being elected and membership. I find it a strange one but don't know enough about the background .

Thanks for your legal reasoning and reference to other aspects of making laws/constitutionality issues. It's interesting.

johnnyskeleton

iptba wrote: »

Thanks for your feedback, Corruptable. Talk of other laws/what it was designed for is the sort of thing I was particularly interested in learning.

However, just on this specific point:

to point out again that article in question doesn't just refer to "absolute bar" but placing somebody at a disadvantage ("under disability"):

Disadvantage and disability are two completely different things, so stop trying to say they are the same. While in informal language they can be used interchangeably at times, they would have distinct legal meanings.

In fact, one could argue that if disability meant disadvantage then arguably the current situation where parties who have unequal numbers of candidates puts women at a disadvantage in entering the Dail. It would on that basis be unconstitutional not to pass the law, were we to read disability as disadvantage.

iptba wrote: »

I think generally if there is doubt whether something is constitutional or not, it's probably best to put the proposals to the people through a referendum. There isn't always somebody who can easily take a case e.g. in this case people who might be affected might not feel they have the resources in terms of their time and/or money to take the case and/or they might feel it would jeopardise any political aspirations they might have.

There is "doubt" surrounding every piece of new legislation, and it would be unworkable to have referenda on all of them. This would be very expensive, but also unworkable because people vote in referenda for all sorts of reasons. Certainly I would be in favour of a party who put big divisive issues before the people e.g. bank guarantee, NAMA, Croke Park Agreement etc but from my point of view (bearing in mind I don't think any party should have state funding anyway) I don't see this as all that big an issue.

iptba

johnnyskeleton wrote: »

In fact, one could argue that if disability meant disadvantage then arguably the current situation where parties who have unequal numbers of candidates puts women at a disadvantage in entering the Dail. It would on that basis be unconstitutional not to pass the law, were we to read disability as disadvantage.

No, different numbers of a gender doing a profession doesn't prove at all applicants of the gender with lower numbers are necessarily at a disadvantage. And also the article relates to no law can be made making a disability (or disadvantage, if it is being read that way), it doesn't say new laws have to be made.

It was in another discussion that I read "under disability" meant something like "at a disadvantage" (rather than something insurmountable). Do other people reading this thread also read "under disability or incapacity" as something insurmountable?

johnnyskeleton

Corruptable wrote: »

It's dangerous ground to be treading on in my view. Despite the noble intentions behind the legislation, as too many of us are aware, legislation like this usually dissolves into a simple box ticking exercise with people simply meeting the quotas to get the funding without any proper consideration of candidates which are put forward.

On this point, it will be to the benefit of the smaller parties. This is because a party like e.g. SF can make up its quota in a constituency where they have no real prospect of a seat.

It might also be a good thing, forcing people who would not otherwise go into politics into it.

johnnyskeleton

iptba wrote: »

No, different numbers of a gender doing a profession doesn't prove at all applicants of the gender with lower numbers are necessarily at a disadvantage. And also the article relates to no law can be made making a disability (or disadvantage, if it is being read that way), it doesn't say new laws have to be made.

I didn't say it necessarily did, I said arguably it could. That is to say, if sufficient facts were present to demonstrate that women were being discouraged from entering the Dail, by your interpretation of disability this would render the current system unconstitutional.

Logically, therefore, reading disability as disadvantage could lead to all sorts of strange results.

Sulmac

Ellis Dee wrote: »

For what it's worth - and as someone who has spent decades in countries where women have nearly half the parliamentary seats - I believe gender quotas are counter-productive. Genuine equality means creating a fairer and more level playing pitch for women to play a meaningful role in politics. Gender quotas will only devalue women and expose them to arguments like "she'd never be where she is if it wasn't for quotas".:)

Do like Sweden, Finland, Norway and Denmark have done: provide good day-care services for all children, high-quality school meals free of charge and that will be a start.

Those are countries where women have achieved real political power - and without gender quotas.:cool:

I agree with the gist of your post, but in both Sweden and Norway there are (were?) quotas adopted by all the political parties themselves. They weren't legislated for, though.

Denmark and Finland never had any form of a quota system, however.

iptba

johnnyskeleton wrote: »

I didn't say it necessarily did, I said arguably it could. That is to say, if sufficient facts were present to demonstrate that women were being discouraged from entering the Dail, by your interpretation of disability this would render the current system unconstitutional.

As I pointed out, what the Constitution says it that a law can't be enacted. As there is no specific law that has been enacted/being created to challenge, then I'm not sure how your scenario would come in to play.

However, on (I think it's fair to say) the more important point to the discussion (which may render the other discussion moot), the meaning of "under disability", I looked at the source who referred to the article (it was on another forum), and the person in a subsequent place said elsewhere they weren't a lawyer, so it looks like they were not the best source for the meaning of "under disability" in the Constitution. Joanna Tuffy did also refer to article 16 in a letter but she didn't explicitly say "under disability" meant at a disadvantage.

----

http://www.labour.ie/joannatuffy/blogarchive/2011/06/23/quotas-divisive-and-discriminatory/

Quotas divisive and discriminatory

Posted on June 23, 2011 at 03:14 PM

MINISTER for the Environment Phil Hogan has claimed that women and men that oppose gender quotas are part of "a conservative culture".

As a woman that opposes gender quotas, I think it is unfair of the minister to pigeon hole those that disagree with him on this issue.

He should respect the fact that those women and men that oppose gender quotas do want to see more women running for election.

The reason I oppose gender quotas is because I am opposed to the idea that the way to bring about more women candidates should be a law that discriminates against candidates on the grounds of their gender.

Such a law will be bad for the cause of women and men. It will be divisive, discriminatory and undemocratic.

It is true that I do want to conserve something, ie the principle that anyone can contest an election irrespective of their gender and that voters can make up their own minds who to vote for irrespective of gender.

In contrast, the minister intends to bring in a law whereby a citizen could be prevented from running in a general election solely on the grounds of their gender.

The minister’s method of using state funding of political parties to achieve his objective in relation to gender quotas is likely to be challenged as unconstitutional because his proposed law will be in conflict with article 16 of the Irish Constitution, which prohibits the passing of a law which places a disability on a citizen running for the Dáil on the grounds of their sex.

It would be far better for those at the top of political parties, including Minister Hogan, to try to achieve an increase in women running for election by measures that increase the participation by women at the grass roots of political parties.

Ironically, gender quotas will undermine the grass roots of political parties by imposing top down decisions by party leaderships as to who and what gender general election candidates should be.

Joanna Tuffy
TD (Labour)
Dáil Éireann
Dublin 2



This appeared in the printed version of the Irish Examiner Wednesday, June 22, 2011

iptba

johnnyskeleton wrote: »

Certainly I would be in favour of a party who put big divisive issues before the people e.g. bank guarantee, NAMA, Croke Park Agreement etc but from my point of view (bearing in mind I don't think any party should have state funding anyway) I don't see this as all that big an issue.

Well, different people will have different priorities and also some people may have different groups which they care more or less about, or are more likely to be vocal about, in terms of discrimination/positive discrimination.

Whether it is one of my "top top" priorities, probably not, but then loads of issues are more administrative matters which would unlikely to be the subject of referendums. I see it as being broader than the specific issue - it's the principle of quotas in general. What has happened in some other countries (from what I've picked up from the little I consume of the lay press) is that gender quotas for company boards have been introduced, for example.

I am generally not convinced by quotas. If they are seen as acceptable in one area, they can be seen as acceptable in others. Similarly, if they are seen as being unacceptable in one area, it may be harder for governments to bring them in other areas.

I also have a particular problem with quotas impeding some individuals' ability to stand for election in a democracy.

johnnyskeleton

I don't think quotas are right nor fair either. I think they could be a restraint on democratic choice. I think they could tend to marginalise women in politics who will be branded as only running to meet the quota - even when they're not.

And I don't agree with taxpayers funding political parties. If anything, political parties should pay for the administrative expenses of politicians which are currently paid for by the state eg parliamentary aides etc.

But as to whether it is constitutional or not, I suspect the courts will be very reluctant to find it unconstitutional without a very clear and compelling reason, and the reasons put forward so far aren't all that clear cut to be honest.

Teclo

Let's say a party has three TD's in one constituency... all three have problems with party policy and resign their membership and form a new party. When the next general election is called all three declare as candidates. Three sitting TD's will be denied state funding, the other political parties will take taxpayers money and share it among themselves. It's profoundly undemocratic for political parties to fix it so that only like minded groups can receive state funding. Jiggery pokery that could be given Putin's enthusiastic approval.

johnnyskeleton

Teclo wrote: »

Let's say a party has three TD's in one constituency... all three have problems with party policy and resign their membership and form a new party. When the next general election is called all three declare as candidates. Three sitting TD's will be denied state funding, the other political parties will take taxpayers money and share it among themselves. It's profoundly undemocratic for political parties to fix it so that only like minded groups can receive state funding. Jiggery pokery that could be given Putin's enthusiastic approval.

You're right, there shouldn't be any tax payer money for any party. But if there has to be taxpayer money for elections, the government of the day can choose how it is spent.

What your example would show is how fickle party allegences are in the state. But it assumes that tds would stand on principle. We all know that it is party above principle for most tds, as it is for most voters.

iptba

johnnyskeleton wrote: »

You're right, there shouldn't be any tax payer money for any party. But if there has to be taxpayer money for elections, the government of the day can choose how it is spent.

I'm really sure if the government of the day should really have that much say on how it is spent.

Corruptable

johnnyskeleton wrote: »

Well I don't agree because it doesn't say disadvantages an election campaign, it says disability or incapacity for membership. Membership in my view is not about winning an election, rather it is about whether when one has won the election, no law shall prevent one taking up one's membership of the Dail. Disadvantage, in my view, also falls far short of "disability or incapacity". The former is surmountable, the latter is not.

But that aside, you can't get past the first point, namely that the protection applies to citizens, not to political parties. So the "entity" being disadvantaged is not at all the same as the citizen being disadvantaged, even if disadvantaged were the test. If there is a constitutional issue on this, it may be that different parties are not receiving equal treatment. However, the difficulty with a claim based on equal treatment is that it is not an absolute prohibition, and the Oireachtas can have regard to "differences of capacity, physical and moral, and of social function". That is to say, any such act will only violate the protection of equal treatment if it is disproportionate to differences of capacity or of social function. So under such a challenge, the government could argue that it is necessary to redress the gender balance in Irish politics and that it is proportionate because there is no prohibition on any party not applying the quota, there is simply an incentive to do so. Further, they can justify it based on the legitimate aim sought to be achieved i.e. introduce more women into politics as perhaps a temporary matter.

Thank you Johnnyskeleton, that's exactly the legal reasoning and interpretation of the text I sought to convey, but you've put the analysis in good detail and more eloquently than I could seek to do.

On your point regarding smaller parties, that is true on the face of it, and as someone who has been involved in the local politics of two different small parties I have to say that while it won't necessarily harm them substantially, it will undermine the local organisation's choice and add another level of "tweeking" (others might say "interference") from the national headquarters of each party (hence my comments on box ticking), in my view.

I think that it's going to continue to be an issue of division for sometime to come, but all indications are that it will only be a temporary measure to adjust the disparity between male and female participation in politics. A simplistic one no doubt, but it's unlikely to meet resistance.

iptba

Corruptable wrote: »

I think that it's going to continue to be an issue of division for sometime to come, but all indications are that it will only be a temporary measure to adjust the disparity between male and female participation in politics.

What indications are you aware of that it will only be a temporary measure, or was this just an off the cuff remark?

They could set a time limit on the bill I imagine if they wanted - that would increase the chances it would be temporary (it could possibly even be renewed then)

Corruptable

iptba wrote: »

What indications are you aware of that it will only be a temporary measure, or was this just an off the cuff remark?

They could set a time limit on the bill I imagine if they wanted - that would increase the chances it would be temporary (it could possibly even be renewed then)

Apologies but as I understood it, Phil Hogan TD had mentioned in an article (can't seem to find it now unfortunately) that it would have a "sunset clause" which would allow that specific provision in the legislation itself, the Electoral (Amendment) (Political Funding) Bill, once the final target was achieved.

Maybe another poster could verify it, but I was sure there was mention of it in the coverage over the past few days.

iptba

Corruptable wrote: »

Apologies but as I understood it, Phil Hogan TD had mentioned in an article (can't seem to find it now unfortunately) that it would have a "sunset clause" which would allow that specific provision in the legislation itself, the Electoral (Amendment) (Political Funding) Bill, once the final target was achieved.

Maybe another poster could verify it, but I was sure there was mention of it in the coverage over the past few days.

Any information would be good, alright.

I don't know my way around the Oireachtas website/whether this is the latest version but this showed up on a quick search and a quick skim of the gender section doesn't seem to mention any sunset clause.
http://www.oireachtas.ie/documents/bills28/bills/2011/7911/b7911s.pdf

Googling "phil hogan" "sunset clause" quotas shows up some results from the past - seem to be comments from other individuals but don't have time to check at moment. Nothing shows up if put this into Google News.

Here a random poster makes a point which gives the impression a sunset clause might have been mentioned by Labour in the past:

Bringing more women into Irish politics is essential and affirmative action may be the only way to achieve gender parity in the future (on a temporary basis with a ‘sunset clause’ – Labour’s 2009 gender parity bill offers a good example of what we can do).
http://politicalreform.ie/2010/07/01/fine-gaels-new-front-bench-announced-male-stale-and-pale/

Manach

The government spending taxpayer money in a fashion so as to achieve their utopian vision of society by influencing the taxpayer is nothing new. If not for the McKenna judgement, we'd still be have massive ad campaigns telling voters how to vote in a referendum.

johnnyskeleton

iptba wrote: »

I'm really sure if the government of the day should really have that much say on how it is spent.

So what's the alternative? It's funny the way Irish people vote for their democratically elected government and then complain when they try to govern democratically.

iptba

johnnyskeleton wrote: »

iptba wrote:

johnnyskeleton wrote:

You're right, there shouldn't be any tax payer money for any party. But if there has to be taxpayer money for elections, the government of the day can choose how it is spent.

I'm really sure if the government of the day should really have that much say on how it is spent.

So what's the alternative? It's funny the way Irish people vote for their democratically elected government and then complain when they try to govern democratically.

(Firstly, just to clarify, that it was just johnnyskeleton who said there shouldn't be any tax payer money for any party). This is a very specific instance however: parties setting a policy that might jeopardise its current competitors', or future competitors' funding, even though they satisfied the basic criteria of having enough popular support to get the funding.

If government parties feel quotas are a way to go, they could use them for their own parties and they might get popular support that way if they are seen as a good policy. If the theory is that this will lead to no lowering of standards, they shouldn't lose out from the move. If they believe that it might lead to lowering of standards (because a smaller pool will be used), then what they are implicitly suggesting is that this will or could cause discrimination against some individuals because of their gender.