Marriage can be both a religious ceremony, when the parties to the marriage choose it to be so, and a legal contract, whether it is contracted religiously or civilly. In most marriages, the two people getting hitched exchange vows. One of those is fidelity, which is generally accepted to mean sexual fidelity and not having sex with other people. Yet people break that vow with uncommon regularity.
Imagine therefore, if you will, a court case, in which a husband takes his wife to court. This husband is claiming that his wife is acting unconstitutionally, by insisting that if he wishes to remain married to her, he cannot have sex with his secretary, despite the fact that the secretary is exceptionally attractive and apparently willing, and despite the fact that some other people are in open marriages, or don’t ask don’t tell arrangements. The husband, in this case, says that the whole vow of fidelity is unconstitutional and that his wife should not be permitted to prevent him from doing as he pleases this coming Friday night.
What might the court, in that instance, conclude? One might imagine that the court would remind the husband that divorce is an option for him, and that his wife has no obligation to stay in a marriage with him while he is unfaithful to her.
And that is just for the legal contract of marriage.
Political parties and their elected representatives in Ireland are also in a form of marriage; albeit one that is not and never has been underpinned by any legal contract. Membership of political parties is entirely voluntary. People who leave political parties do not have to, as married couples do, live apart from their party for a year and then enter into formal divorce proceedings where the assets are divided. They can walk away, legally, at any time.
Now let us consider the party whip. There has been much online chatter this week about a court case taken by a failed Presidential candidate who tried and did not succeed to secure a nomination, in which that candidate reputedly makes several legal arguments. I intend here to focus only on one of them, which is that the use of the party whip by Fine Gael and Fianna Fáil to block independent candidates from the ballot was in some way unconstitutional.
In essence, the party whip is an arrangement whereby a political party makes membership conditional on voting with that political party in a legislative body where votes are recorded in public. There can be no party whip applied to ordinary members for voting in elections with a secret ballot, because there is no way of determining how somebody has voted. The whip can only be applied where votes are recorded and public, like in a council chamber or in the Oireachtas.
The party says to such voters, usually elected officials, that they must vote with the party or they shall risk forfeiture of their party membership. This is not a legally binding agreement, but one that is mutually beneficial to all involved: Parties would have no power if their members could not be relied upon to vote as a bloc. The party whip, for good or ill, maximises the power of the collective to influence national events.
An argument that this is unconstitutional is, ipso facto, absurd.
First, it would imply that all voluntary arrangements are unconstitutional if they affect others. Imagine a scenario where thirty of my friends and I agreed voluntarily amongst us that none of us would vote for a particular candidate in a local election, and said candidate lost by 25 votes. Have my friends and I, as voters, acted unconstitutionally by agreeing to withhold our support?
Second, it implies that people do not have the right to break the party whip: And of course they do, and have done so. Even in this very Presidential election process, two Fine Gael councillors broke the party whip in Tipperary to nominate Gareth Sheridan for President. Those two people weighed up the matter, and decided that breaking the whip was something they wished to do. Fine Gael is within its rights to sanction them for that, but it could not and never could stop them from voting for Sheridan or anyone else.
Third, it implies that the party whip is something regulated by the constitution, which is utter nonsense. The constitution is entirely silent on party whips, as it should be – just as it is silent on other voluntary arrangements between groups of people.
There is of course a political argument to be made – one I would agree with – that the use of party whips in respect of Presidential nominations is contrary both to the spirit of the constitution and to the health of our democracy. But the “spirit” of the constitution is legally meaningless when set against the established legal right to freedom of association and the right to decide for yourself how you vote. There is no law saying to anybody that you must vote on a candidate on his or her merits instead of voting on them because your party has taken a position. Nor could or should such a law ever be passed.
In recent days, comments by a judge appearing to say that the whip is unconstitutional have been circulated online. My understanding is that the Judge made those comments by way of summarising the case in front of him – not by way of endorsing those views.
We are not in the business of pre-empting legal judgements here at Gript, but suffice to say, a ruling from any court that the party whip is unconstitutional would be a tremendous shock, and would immediately be appealed to a higher court. Where the result, I have to say, simply would not be in any doubt.