No Implied Anti‑Whip Rule in Article 12: Council Nomination Votes for the Presidency Are Political and Non‑Justiciable — Stack v The Attorney General & Ors [2025] IEHC 561

Court: High Court of Ireland (Heslin J)

Date: 23 October 2025

Citation: [2025] IEHC 561

Procedural posture: Application for leave to seek judicial review (refused)

Introduction

This application, brought by Dr. Cora M. Stack as a self-represented applicant with assistance from a McKenzie friend, sought leave to challenge the 2025 presidential nomination process. Dr. Stack characterised the process as “unconstitutional, unfair and undemocratic” on multiple grounds, with particular focus on alleged political party “whip” directions to local councillors purportedly preventing the nomination of independent would-be candidates.

The respondents were the Attorney General, Ireland, the Minister for Housing, Local Government and Heritage, the Presidential Returning Officer (PRO), and the Tánaiste. Reliefs sought included declarations that the nomination process breached Article 12 of Bunreacht na hÉireann, that the Tánaiste’s alleged directive to party councillors to block independents was unconstitutional and unlawful (and in breach of the Protected Disclosures Act 2014 as amended), orders restraining the current process, mandatory orders to conduct a fair process, and costs.

At leave stage, the central issues crystallised as follows:

Whether the applicant had standing and sufficient evidential basis to pass the well-known “arguability” threshold for leave.
Whether Article 12 of the Constitution contains any implied restriction prohibiting political party discipline (whips) in local authority votes on presidential nominations.
Whether decisions by councillors and party leaders concerning nomination support are justiciable or are political questions beyond the courts’ remit.
Whether there is a legal right to make presentations to councils for specified minimum durations, to sequential scheduling of council meetings, or to a quasi-hearing with audi alteram partem obligations.
Whether the PRO had a duty or power to police or redesign nomination procedures.
Whether the applicant’s ECHR and Protected Disclosures Act theories were stateable at all, and whether judicial intervention could restrain or reset an election timetable.

The High Court refused leave. In doing so, the Court both applied and clearly restated fundamental principles: the non-justiciability of political choices in nomination voting; the absence of any constitutional or statutory prohibition on party whips in council nomination decisions; the limited role of the PRO; and the separation of powers limits on judicial interference with elections that are “in train.”

Summary of the Judgment

Heslin J refused leave to seek judicial review, holding that the application fell well short of the arguability threshold. The Court found multiple, mutually reinforcing reasons why the proceedings could not proceed:

Standing and evidence: The applicant relied heavily on the experiences and outcomes of other would-be candidates, contrary to the jus tertii principle (paras 11–13). Crucially, she adduced no evidence of even a proposer or seconder on any council, nor of concrete steps taken to solicit support from councillors or Oireachtas members (para 12).
No constitutional or statutory prohibition on party whips: Article 12 and Article 28A contain no express or implied bar on party discipline in council voting on nominations; the Constitution literally and harmoniously construed provides no such restriction (paras 18–29). The 1993 Presidential Elections Act imposes no such bar either (paras 24–25).
Political decisions are non-justiciable: Decisions by councillors and party leaders regarding whom to support are quintessentially political and legally non-justiciable, per Kavanagh, Beades, Doherty, and Lennon, with direct support from the contemporaneous High Court decision in Byrne (paras 32–45).
No right to make presentations or to specific time allotments/scheduling: The Local Government Act 2001 confers autonomy on councils to regulate their own proceedings via standing orders; there is no right to make presentations at all (let alone for 25 minutes) nor to sequential, non-overlapping meetings (paras 52–67, 77–86, 100–103).
PRO’s role is limited: The 1993 Act gives the PRO no power to “establish” nomination procedures or to police party whips; criticism of the PRO was misconceived (paras 137–141).
ECHR and PD Act arguments unstateable: Article 3 of Protocol 1 to the ECHR likely does not apply to Irish presidential elections; in any event the 2003 Act gives effect to the Convention subject to the Constitution, and Strasbourg authorities cited were inapposite (paras 143–156). The Protected Disclosures arguments failed for want of standing, fit with the statutory definition of “worker,” respondents, and any cognisable “penalisation” (paras 114–135).
Injunction and “new election”: Given no arguable case, interlocutory relief could not arise. More fundamentally, the courts have no jurisdiction to derail constitutionally mandated electoral processes (Fitzgibbon; Slattery), and the remedies sought would violate separation of powers (paras 157–169).

In short, the Court held that Article 12 deliberately institutes a “filtering mechanism” requiring a minimum threshold of political support, and that disagreement with the design or operation of that mechanism is a political matter for the Oireachtas and the People, not a legal one for the courts (paras 93, 169–171). Costs were indicated in favour of the respondents, subject to submissions (para 172).

Analysis

Precedents and Authorities Cited and Their Influence

O’Doherty v Minister for Health [2022] IESC 32; [2023] 2 I.R. 488 (paras 6–9):
Reaffirmed the G v DPP “arguability” threshold at leave—not a high bar, but not non-existent. Also emphasised that when leave is heard on notice, the threshold is unchanged but the court weighs the respondents’ arguments and any evidence. The Chief Justice’s standing observation (para 108) required that a challenger be adversely affected or reasonably anticipate adverse impact; the applicant’s reliance on others’ experiences did not meet this requirement. This set the frame for refusal of leave.
Cahill v Sutton [1980] IR 269 (para 11):
Jus tertii principle: an applicant cannot invoke third parties’ constitutional rights. The judgment repeatedly returns to this to reject claims predicated on other candidates’ experiences (paras 10–13, 105, 115–116, 131–134).
The People (DPP) v O’Shea [1982] IR 384 (para 26):
Literal interpretation: plain words given their plain meaning unless qualified elsewhere. Applied to Article 12—no textual prohibition on party whips; none can be implied via purposive or harmonious interpretation (paras 27–29).
David Kavanagh v The Coalition Government of Ireland [2023] IESC DET 61 (paras 33–34):
Political agreements affecting votes are of political significance only and have no legal effect on the validity of nominations. Heslin J extends this principle naturally to party decisions and councillor voting on presidential nominations, reinforcing non-justiciability.
Beades v Ireland [2019] 2 IR 582 (para 35):
Dunne J explained that the Government’s nomination of a judge is a matter of “political choice,” not open to judicial supervision. The Court analogises this to council nominations—again, political choice and non-justiciable (para 36).
Doherty v Government of Ireland [2011] 2 IR 222 (para 37):
Courts have no “watchdog” role over matters in the political arena. Supports the boundary that excludes judicial management of party whip decisions or councillor votes.
Lennon v Minister for the Environment (Irish Times, 23 Oct 1990) (paras 39–40):
Earlier challenge asserting Article 12.4.2 permitted politicians to limit the people’s choice was rejected. The Court uses Lennon to show the argument is not novel and has already failed.
Byrne v The Tánaiste & Ors (H. C., Cregan J, 21 Oct 2025) (paras 42–47, 71, 169):
Parallel proceedings also alleging unconstitutional “direction” to block independent nominees. Cregan J held the alleged direction is “purely political” and non-justiciable. Heslin J explicitly adopts this analysis, aligning the High Court’s approach across both challenges.
Garda Representative Association v Minister for Public Expenditure and Reform [2018] IESC 4 (paras 73–75):
There is no right to be heard in the legislative process; the democratic process supplies influence. By analogy, there is no audi alteram partem entitlement before political decisions on nominations.
Merck Sharp & Dohme v Clonmel Healthcare [2020] 2 I.R. 1 (para 166):
Interlocutory injunction test—serious issue to be tried. Because no arguable case existed, no injunction could issue.
Fitzgibbon v Ireland [2001] IESC 207 and Slattery v An Taoiseach [1993] 1 IR 286 (paras 167–168):
Courts will not restrain or derail constitutional electoral or referendum processes. Heslin J applies this to reject relief seeking to reset or suspend the presidential election process “in train.”
McD v L [2010] 2 IR 199 (para 147):
ECHR has effect in Ireland via the ECHR Act 2003 and “subject to the Constitution.” Used to emphasise that the Convention cannot trump Article 12’s terms.
Redmond v Minister for the Environment [2001] 4 IR 61 and King v Minister for the Environment (No. 2) [2007] IR 296 (para 156):
Dáil election cases not transposable to presidential nominations under Article 12.

The Court also drew on secondary sources to situate party organisation historically and doctrinally. Kelly: The Irish Constitution acknowledges party structures as a natural incident of association rights; historical references (e.g., Parnell’s “iron” discipline) underscore that the drafters were well aware of whips long before 1937, yet chose not to prohibit them in Article 12 (paras 16–17, 19–23).

Legal Reasoning: Why Leave Was Refused

1) Threshold and Standing: A factual and doctrinal failure at the starting gate

Arguability threshold: The Court applies the modest but real threshold from G v DPP as read in O’Doherty. Even at that low bar, the application failed.
Jus tertii and adverse effect: Much of the case rested on other candidates’ frustrations. Cahill v Sutton bars “championing” third parties’ putative rights. O’Doherty requires showing adverse effect on the applicant; yet Dr. Stack produced no evidence of a proposer/seconder or concrete steps to secure support (paras 10–13).

2) Article 12 and Article 28A: No implied anti-whip rule

Textual analysis: Article 12.4.2º(ii) allows a route via “the Councils of not less than four administrative counties.” There is one express limitation: a council may nominate only one candidate (Art 12.4.3º). No text restrains party discipline in council decision-making (paras 18–23, 27–29).
Local government autonomy: Article 28A and the Local Government Act 2001 leave the regulation of meetings and proceedings—including timing and format—to councils via standing orders (paras 20–21, 52–57).
Statutory framework: Section 16 of the Presidential Elections Act 1993 empowers (but does not oblige) councils to nominate, and prescribes notice requirements. No breach was pleaded or evidenced (paras 24–25).

3) Political question and non-justiciability

Relying on Kavanagh, Beades, and Doherty, the Court holds that decisions by party leaders or councillors about nominations are political choices, not legal wrongs. Such choices are non-justiciable (paras 32–38).
The Court explicitly adopts Cregan J’s holding in Byrne that a party leader’s alleged direction to councillors is a “purely political action” and thus not justiciable (paras 42–45).

4) No right to be heard, to minimum presentation time, or to sequential scheduling

Hearings and time limits: Councils may set standing orders; there is no legal right to present at all, nor to a 15-minute presentation and 10-minute Q&A (paras 52–67). The applicant’s attempt to constitutionalise such formats was rejected.
Scheduling: Overlapping meetings are lawful; a 19-day nomination window and the “three clear days” notice requirement make clustering near the deadline unsurprising and not orchestrated (paras 79–86, 82–85).
Audi alteram partem: The Court analogises from GRA to hold that political decision-making does not attract administrative law hearing rights (paras 72–75).

5) The Meath “lockout” and practicalities

The “lockout” claim failed on standing, evidential sufficiency, and materiality. Meath County Council was not a respondent; there was no evidence of deliberate exclusion; “technical failures” are common in hybrid settings (paras 104–113).
Even if a single council incident were established, there was no evidence of support anywhere else; thus no material bearing on the applicant’s prospects to reach four nominations (para 113).

6) Protected Disclosures Act theories

The applicant’s “penalisation” theory was unstateable. She did not fit the Act’s “worker” definition on the facts asserted; neither the Commissioner nor Meath County Council were respondents; and no penalisation cognisable under the Act was shown (paras 114–135, esp. 128, 130–135).
No constitutional challenge to the Act was actually pleaded, notwithstanding rhetoric about “unconstitutionality by omission” (paras 116–118).

7) ECHR Article 3 of Protocol 1

Presidential elections may not fall within A3P1 as “legislative” elections, given the Irish President’s limited legislative powers (paras 145–146).
In any case, the ECHR is subject to the Constitution domestically (2003 Act), and the Strasbourg cases cited concerned different factual matrices (Kovach, Tahirov, Bowman, Zdanoka) (paras 147–156).

8) Remedies sought: separation of powers and the democratic architecture

Requests for Council of State oversight, a fresh election, or court-crafted “fair rules” invert constitutional roles. Courts cannot redesign Article 12, halt an election “in train,” or substitute judicial preferences for the People’s choices (paras 157–169).
Fitzgibbon and Slattery underscore the lack of jurisdiction to restrain direct democracy (paras 167–168). The injunction request failed ab initio for lack of a serious issue (para 166).

9) The “filtering mechanism”

Article 12 deliberately requires a minimal level of political support—either 20 Oireachtas members or 4 councils—to filter candidates. That design can be debated politically, and has been mooted for reform, but it is not unlawful (paras 93–95, 169).

Impact and Prospective Significance

A. For would-be presidential candidates (especially independents)

Courts are not a shortcut: Judicial review will not re-engineer the nomination process or compensate for lack of political support. The route remains political (paras 87–93, 169–171).
Evidence matters at leave: Future applicants must evidence proposers/seconders, concrete engagement with councils/Oireachtas members, and any procedural illegality on a specific, respondent-linked basis (paras 12–13, 51–53, 100–101).
No rights to presentations/time/scheduling: Aspirants cannot demand minimum presentation periods or non-overlapping meeting timetables. Councils decide their own standing orders and schedules (paras 52–57, 77–86, 100–103).

B. For local authorities and political parties

Party discipline is lawful: The judgment confirms that neither the Constitution nor statute prohibits party whips in nomination votes. Councillors remain politically accountable, not legally constrained, in this respect (paras 18–23, 32–38, 42–45).
Standing orders autonomy: Councils may set speaking times and manage crowded agendas within the 1993 Act’s notice framework and their own legal powers (paras 52–57, 75–76).

C. For the Presidential Returning Officer (PRO)

Limited remit affirmed: The PRO’s functions on receipt of nominations are administrative. The PRO has no policing or supervisory power over council procedures or party conduct (paras 137–141).

D. For public law litigation strategy

Non-justiciability line sharpened: Stack, read with Byrne, will be cited to fend off challenges to political decisions within nomination processes.
Leave threshold with teeth: Applicants must meet both standing and evidence expectations even at leave stage. Generalised grievances and third-party harms will not do (paras 6–13).
Election “in train” principle: Courts will be very slow—if not institutionally barred—to grant orders restraining constitutionally timetabled electoral events (paras 166–168).

E. For ECHR and Protected Disclosures Act arguments in electoral contexts

A3P1 scope: Unless and until Strasbourg or domestic law squarely extends A3P1 to Irish presidential contests, A3P1-based challenges are precarious at best (paras 145–150).
PD Act boundaries: The Act is not a vehicle to impugn political party strategy or council voting patterns; strict statutory definitions (e.g., “worker”) and proper respondents matter (paras 114–135).

F. For constitutional reform discourse

The Court recognises ongoing policy discussions (Kelly; Constitutional Review bodies) about making nominations more open. But it reiterates that any reform lies with the Oireachtas and, for constitutional change, the People (paras 93, 169–171).

Complex Concepts, Simplified

Leave to seek judicial review (arguability threshold): Before a case goes forward, an applicant must show a reasonably arguable point of law with some prospect of success. It is a low bar but not automatic.
Jus tertii: You generally cannot sue to vindicate someone else’s rights unless the law allows it. A litigant must show how they personally are adversely affected.
Political question/non-justiciability: Some decisions are political rather than legal (e.g., how elected officials vote or use party whips). Courts do not police such choices unless a specific legal rule is violated.
Separation of powers in elections: Courts do not stop or re-design electoral processes that the Constitution assigns and timetables. To do so would trench on the People’s and the Oireachtas’s roles.
Article 12 “filtering mechanism”: The Constitution requires a candidate to show minimum political support (20 Oireachtas members or 4 councils). This is by design—intended to filter candidacies.
Standing orders: Councils adopt their own rules for meetings—who speaks, for how long, agendas, etc.—within the law. There is no general right to a set presentation slot.
Protected Disclosures “worker”: The Act protects certain individuals (e.g., employees, contractors, trainees) who report wrongdoing. An aspiring candidate seeking to address a council is not automatically a “worker.”
ECHR Article 3 of Protocol 1: Guarantees free elections for the “legislature.” Whether it covers Irish presidential elections (a largely non-legislative office) is doubtful.

Grounds A–G: A Quick Case Map

Grounds A and G (party whips; alleged direction by the Tánaiste): Non-justiciable political decisions; no constitutional or statutory anti-whip rule; no evidence of personal adverse effect; relies on others’ experiences (paras 14–23, 32–45, 49).
Ground B (5-minute presentations): Councils control standing orders; no right to present; no legal minimum times; weak and vague evidence; not linked to respondents; immaterial given no proposer/seconder (paras 50–67, 61–66).
Ground C (simultaneous meetings): Lawful scheduling; no right to sequential meetings; clustering near deadline expected; no orchestrated central interference shown; not linked to respondents (paras 77–86, 100–103).
Ground D (Meath “lockout”): Not a respondent; no evidence of deliberate exclusion; technical failures are common; immaterial even if proved (paras 104–113).
Ground E (Protected Disclosures/penalisation): Standing and definitional failures; wrong respondents; no penalisation shown; no constitutional challenge actually pleaded (paras 114–135).
Ground F (PRO failed to establish fair process): PRO has no such power or duty in law; criticism misconceived (paras 136–141).
Ground G (ECHR A3P1 breach by councillors): A3P1 likely not engaged; ECHR subject to the Constitution; authorities cited inapplicable; non-justiciability under Irish law decisive (paras 143–156).

Conclusion

Stack v The Attorney General & Ors decisively reinforces a set of constitutional guardrails around Ireland’s presidential nomination process. It confirms that:

There is no implied constitutional prohibition on party whips in council nomination voting under Article 12; councils and councillors may make political decisions, including along party lines.
Such political choices are non-justiciable. Courts will not sit in judgment on the political calculus of parties or councillors in nomination exercises.
The PRO’s remit is limited and does not include redesigning or enforcing “fair nomination procedures.”
There is no right to be heard by councils, to minimum speaking times, or to sequential scheduling; councils control their proceedings by standing orders within the law.
ECHR and Protected Disclosures theories cannot be used to regulate political support decisions in this context on the facts and framework presented.
Courts will not derail electoral processes “in train.” Remedies that would suspend or reset a presidential election timetable collide with separation of powers and direct democracy.

Beyond refusing leave for lack of arguability, the judgment clarifies doctrine for future cases: party discipline in this sphere is a political reality the Constitution accommodates; the proper forum for changing the nomination architecture is the political process and, where necessary, a referendum. For litigants, Stack sets a high practical bar even at the “low” leave threshold: concrete evidence of personal adverse effect, specific legal breaches, and proper respondents are indispensable. For public bodies, it affirms autonomy within the statutory framework and the judiciary’s continued reluctance to intrude upon the political domain of nomination choices.

In combination with Byrne, Stack is likely to become the go-to High Court authority on the non-justiciability of party whip directions in presidential nominations and on the courts’ refusal to entertain implied constitutional constraints not grounded in the text or structure of Article 12. The message is clear: reform, if any, must be legislative and constitutional—not judicial.