It now seems a forgone conclusion that Lucinda Creighton will vote against the Fine Gael party whip in the vote on the abortion bill later today or tomorrow. Many of the commentaries on this suggest that this will jeopardize her political career: she will lose her junior ministerial position as Minister for Europe; she will lose her membership of the parliamentary party; and Enda Kenny has made clear that she, like the other rebels, will not be allowed to run as a candidate for Fine Gael in the next election. But is this last threat really true?
There’s no doubt that the stick being shaken by Enda Kenny is more draconian than that wielded by any of his predecessors including Charlie Haughey. (For excellent analysis, see Noel Whelan’s column in last Saturday’s Irish Times.) And yet again it demonstrates just how extreme Irish parliamentary politics can be in the use of the whip certainly when compared with other countries (for more, see here).
But we are potentially more than two years away from the next election, an election which – by the way – will see all the parties struggling to fill their quotas of women candidates in order to meet the new gender quota regulations (requiring at least 30% of candidates from each gender). Is it really credible that someone with the abilities of Lucinda Creighton will be denied the right to run again?
Furthermore, is the party leader’s threat entirely consistent with the party’s Constitution and Rules? The relevant points appear to be the following. Under the rules, the party’s disciplinary committee determines whether a TD should lose the party whip and for what period of time. But nowhere (at least nowhere that I can see) does the party’s Constitution refer to a TD in this scenario being formally denied the right to fight as a candidate in a future election. As a member of the party Lucinda Creighton could always seek nomination from her constituency convention. If the members of the convention were then to decide to nominate her, it would require the party’s executive council ‘on the proposal of the party leader’ to decide on whether to accept or overrule the convention’s recommendation.
Clearly at that point, the party leader (two years or so from now) could trigger his proposed veto. What that would seem to mean in practice is that if and when Lucinda Creighton defies the whip in the next day or so, Enda Kenny can at most threaten to do this in a few years time, but as far as I can see he can’t actually do this at this point in time. (I stand ready to be corrected on this!)
So, the threat would appear to be that he would veto any attempt by her to become a candidate in the next election. But at that moment in time years from now in the heat of the election build up, with memories having faded, with the inevitable clamour around someone of her calibre, with the focus on achieving better gender balance…. would he?
Irish Politics Forum 
Your post’s title is “Can Lucinda Creighton be denied the right to run as a Fine Gael candidate in the next election?” and the answer is clearly Yes, she can be.
Whether or not she will be is a different matter. And it should be noted that party rules would appear to say that she also has to be automatically suspended as a ordinary member for breaching the party pledge once the disciplinary committee of the national exec has met. In order to be a candidate in the election she would need to have that suspension lifted too, though she wouldn’t need to be a member in order to be nominated at a convention.
“If the members of the convention were then to decide to nominate her, it would require the party’s executive council ‘on the proposal of the party leader’ to decide on whether to accept or overrule the convention’s recommendation.” All potential Fine Gael candidates have to have their nomination from a convention accepted or rejected by the national executive, Lucinda would be no different their.
The real pracital question is will this strong diktat from the leadership lead to candidates emerging at the next national executive campaign come the next Ard Fheis (due in 2014 but it could be held off to 2015) who are intent on not being the lapdogs of the leader of the day but focused more on representing the interests of ordinary members and the longer term needs of the overall party.
Yes, the rules and constitution of FG do not expressly contain the punishment ‘expelled from the parliamentary party and will not be permitted to stand for the party at the next election’.
But that wouldn’t prevent the party’s executive council imposing such a sanction if it wishes.
More likely, as David Farrell observes, FG centre would not tie its own hands in this way. Any TD losing the whip cannot be sure whether they will be re-admitted to the fold in six months’ time, in a year’s time, just before the next election – or not at all. As Ronald Reagan said in a different context, that’s for them to go to bed every night wondering. It’s not in a party’s interest to spell this out, but with an eye to maintaining PPG solidarity it would be unwise to give the impression that breaches of discipline are mere sin-bin offences, because then the incentive structure would no longer encourage loyalty.
If the 5 FG dissidents were selected by their constituency conventions at the next election, could the centre block their candidacies? (And that’s a big ‘if’ – usually party members look with disfavour on TDs who don’t vote the party line in the Dáil.) It certainly could, as all candidates selected locally require ratification by the national executive. Non-ratification, ie a veto by the centre, happens very rarely, partly because the centre, in the form of head office, is usually very active in trying to ensure that the wrong candidates are not selected in the first place. (Way back in 1979, at the first European Parliament elections, the FG convention in Dublin selected a maverick FG TD as one of the candidates, but he was vetoed by the party’s national executive and hence did not make the ticket. Not apparent that there have been any cases since then.) But it is a very real power, and given the strong role accorded to the party leader in the FG rules regarding candidate selection, the strong likelihood is that if Enda Kenny is still FG leader at the next election and does not wish any of those 5 TDs to be permitted to run on the FG ticket, they will not be able to do so.
The issue of whether the court will rule in favour of a person who has been selected locally but refused the right to stand for a party by the party’s national executive has been tested on at least two occasions in the courts in New Zealand – in Peters v Collinge [1993] 2 NZLR 554 (HC) and Payne v New Zealand National Party [2008] 3 NZLR 233. The second of these cases is available online: http://www.kiwiblog.co.nz/wp-content/uploads/2008/05/paynevnznationalparty1may2008judgment_1.pdf
Both cases show that the courts in New Zealand continue to treat political parties as being merely unincorporated associations whose members’ rights are governed primarily by the contract of membership, with very little scope for judicial review of how bodies such as a party national executive make decisions about matters such as candidate ratification – broadly speaking, it is only the most elementary aspects of procedural fairness that could be applicable (eg, in this situation, some kind of prior notice to the prospective candidate of the general nature of the reasons for which the national executive is minded not to ratify him or her).
It is true that legislation has increasingly recognized the role that registered political parties play in the electoral process and conferred certain advantages on them (such as automatic access to the ballot paper and financial support for their administrative and policy-making functions between elections). On the other hand, the scheme of the Electoral Act, 1997 remains very careful, within the context of campaign expenditure limits and reimbursement provisions, to avoid conferring any direct financial advantage on the candidates of registered political parties, as compared with any other kind of candidates.
Given that political parties have a lesser role in the Irish electoral system than under MMP in New Zealand, it seems likely that the Irish courts would take a similar view and apply in that sense cases such as Rogers v ITGWU [1978] ILRM 51 and Doyle v Croke (1988) 7 JISLL 170 – which decide that members of trade unions have the right to observance of the principles of constitutional justice in the procedures by which the union took decisions affecting them. As Hogan and Whyte point out (Kelly, The Irish Constitution, 3rd ed (2003) p 1802) at least the first of these decisions appear to be premised on the notion that constitutional justice is largely supplementary to the rules of the body in question and does not prevent the body from adopting rules that determine what its specific procedures should be.
It also seems clear, for similar reasons, that the courts would not consider a political party, even a registered one, to be a proper respondent in judicial review proceedings, as the statutory recognition of parties has not gone so far as to make them public bodies or confer public functions on them in any relevant sense.
The aggrieved potential candidate’s remedy will therefore be one for breach of the contract of membership, to be pursued in ordinary plenary proceedings.
At least one interesting contrast between the Irish and the New Zealand legislation is highlighted by the Payne case. There, the High Court held that the statutory requirement of ‘democratic procedures’ in candidate selection – meaning that a political party give its members an opportunity to participate, directly or indirectly, in the selection process – was compatible with a power given to the party national executive, itself mainly a body representing the membership of the party as a whole, the power to refuse to ratify candidates who had been selected through such a process. By way of contrast, the only comparable requirement that the Irish legislation lays down for registered political parties is that each must have “a constitution, a memorandum of association or other such document or other written rules which have been adopted by the party and which provide for (i) an annual or other periodic meeting or conference of the party; and (ii) the conduct of the business of the party by an executive committee or similar body elected by the party.” (Electoral Act 1992 s 25(4)(c) as substituted by the Electoral (Amendment) Act 2001 s 11). The Irish legislation, therefore, specifically requires that a registered political party have a national executive “elected by the party” to conduct its business, but is silent about the members’ participation in the selection of candidates.
In this context, while a person denied ratification by a party’s national executive could complain about a lack of prior notice of the grounds for that decision (and perhaps a failure to state adequate reasons for the decision once it has been made) or about the “fettering” of the national executive’s discretion should it merely rubber-stamp the party leader’s recommendation. However, the type of notice or reasons required would seem to be of a very general nature and it would require very clear evidence of a closed mind to sustain the fettering claim in court. Equally, claims that a refusal to ratify was tainted by bias or made on unreasonable grounds would also seem very unlikely to succeed, given the courts’ reluctance to be drawn into making judgements about how political parties conduct their internal affairs.
Overall, the chances seem very slim in most cases of a litigant succeeding in court in a challenge to a national executive decision to refuse to ratify his or her candidacy. However, this is a situation which does point up the way in which the relevant Irish legislation starts with perhaps an unduly strong assumption that the national executive of the party is the crucial decision-making body within it, on this and other issues.
Yes.
The important point that the legislation was in response to 2 referenda, a Supreme Court ruling and an ECHR ruling and that ms Creighton put her own opinion above the decision of the people of Ireland seems to be overlooked.
Ms Creighton was elected to legislate on behalf of the people of Ireland not according to the personal opinions of Ms Creighton and where there is a difference the opinion of the people always outranks hers. There is also the point that there is no evidence that she was even following instructions from her local organisation or electors.
This was an instance were politicians were given the choice to legislate on a national basis and they failed.