High Court strikes out presidential election challenge as non-justiciable political directive and unstateable constitutional argument.

THE HIGH COURT

[2025] IEHC 565

[2025/5467P]

NIALL BYRNE

PLAINTIFF

AND

THE TÁNAISTE, THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND

HERITAGE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Mr. Justice Cregan delivered on 20th day of October, 2025

Introduction

1. The plaintiff’s application before this court is

(i) for a declaration that a direction by the leader of Fine Gael to Fine Gael local councillors not to vote for independent candidates was unconstitutional; and

(ii) for a declaration that the nomination process for the presidency is unconstitutional.

2. It is, in substance, an application to stop the presidential election from proceeding. Procedural history.

3. The plaintiff in this matter issued his plenary summons on 8th October, 2025. He also issued a motion on 8th October, 2025, which was given a return date of 20th November, 2025. Given that the presidential election was scheduled to take place on Friday 24th October, 2025, Mr. Byrne applied to court on Friday 10th October, 2025, to have the date for the hearing of the motion brought forward, in order that his application could be heard before the presidential election. In the circumstances, I granted a new return date of Tuesday 14th October, 2025. I also directed that he serve the papers on the Chief State Solicitor’s Office by

4 pm on Friday 10th October, 2025.

4. On Tuesday 14th October, 2025, counsel for the Tánaiste appeared. In addition, counsel for the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General also appeared and applied to have the second, third and fourth named defendants joined as defendants in these proceedings. That order was made by me on consent.

5. Given the urgency of the application, the defendants indicated that they did not intend to file any replying affidavits but simply to file legal submissions. I directed that any such legal submissions be filed by 1pm on Thursday 16th October, 2025, and I set the matter down for hearing on Friday 17th October, 2025. The hearing took place on that date.

6. The first named defendant is represented separately by counsel in his capacity as leader of the Fine Gael Party and in his capacity as Tánaiste; all other defendants are also represented by counsel. The plaintiff is a litigant in person. The reliefs sought by the plaintiff.

7. The reliefs sought in the proceedings, as set out in the plenary summons, are substantially the same as those sought in the notice of motion.

8. In his notice of motion, the plaintiff seeks the following reliefs: “(1) A declaration of unconstitutional interference under Article 28A. The Tánaiste in instructing local governments and councillors to block or discourage the nomination of independent presidential candidates.

(2) A declaration that the presidential nomination process was void and repugnant to Articles 1, 3, 5 and 12.4.5 of the Constitution, which affirm Ireland’s democratic character and the people’s right to choose their own government.

(3) An order that the entire nomination and election process be rerun democratically, without interference from any political party or national direction, to uphold constitutional fairness and the sovereignty of the people.

(4) In the alternative, a declaration that the plaintiff, having lawfully declared candidacy and having refused to participate in an unconstitutional process, is the only validly nominated candidate under Article 12.4.5, and is therefore duly elected without a vote, as no other valid nominations exist, and will hold the office until a constitutional referendum is held to make amendments to Article 12 and remove the undemocratic nomination process.

(5) A declaration that the overall process appears undemocratic, giving the impression that the government is choosing the government, rather than allowing the people to make that choice through free and fair nomination.”

9. In this judgment, I will deal with each of these issues in turn. However, before I do so, it is necessary to set out the plaintiff’s affidavit evidence and the legal context of the nominations process for the Presidency. The plaintiff’s grounding affidavit.

10. In his affidavit sworn on 8th October, 2025, Mr. Byrne stated that on 5th September, 2025, he declared his candidacy for the Presidency of Ireland, as an independent candidate, on social media, and that he also sent an email to all members of the Oireachtas. He stated that “within approximately 12/24 hours later, Simon Harris, Tánaiste and Fine Gael leader, issued a direction to local councils to block or discourage the nomination of independent candidates, which was publicised by RTE”. The plaintiff stated, at paragraph 4 of his affidavit, that he believed that this direction constituted an unconstitutional interference with the democratic independence of local government as protected under Article 28A of the Constitution. He also stated, at paragraph 5 of his affidavit, that, in his view, this action also violated fundamental rights under the Constitution specifically Article 1, Article 3 and Article

5. He stated at paragraph 6, that “the interference made it impossible for independent candidates to receive fair and lawful nominations under Article 12.4 which provides the constitutional mechanism for presidential nomination”.

11. At paragraph 7, Mr. Byrne stated: “I did not consent to participate in a process I viewed as unconstitutional and I awaited the outcome of the nomination phase to see what the result would be by 25th October, 2025”. He states that “I now seek a declaration from this Honourable Court that the entire presidential nomination process was void, unconstitutional and undemocratic and I request that it be rerun in accordance with the Constitution and democratic principles”.

12. He also stated: “Alternatively I seek recognition that I am the only valid legal nominated candidate, having declared lawfully and refused to participate in a compromised process. In accordance with constitutional procedure, where no valid competing nominations exist, the sole candidate is deemed duly elected without the need to vote.”

13. Mr. Byrne states at paragraph 10 “I am willing to hold the position of President of Ireland on an interim and constitutional basis until such time as a referendum can be held to amend the nomination process set out under Article 12.4.5 which I believe to be inherently undemocratic. I assert that the people must have the right to choose their government. The events of this election cycle have revealed a clear and concerning example of the government choosing the government. In particular, viable independent candidates were withheld or blocked from nomination despite strong public demand for democratic representation. One notable example is Maria Steen who received considerable public support but was denied sufficient nominations. In fact two County Councils refused to give any nomination at all leaving the public no democratic choice”.

14. At paragraph 11 Mr. Byrne states “By using its influence to direct local governments and discourage support for independents, Fine Gael and its leadership suppressed democratic participation and restricted the people’s ability to choose from a broad field of candidates. This illustrates a serious flaw in the current nomination system, which allows the dominant party to exercise disproportionate control over who can run for the presidency”.

15. At paragraph 12 he says “the cumulative actions of Simon Harris as Tánaiste and Fine Gael leader, have created the appearance that the government is choosing the government, rather than allowing the people to make that decision. This undermines the very foundation of Articles 1, 3, and 5 of the Constitution and calls into question the legitimacy of the entire presidential nomination. It has exposed a serious and systemic flaw in Article

12.4.2 whereby political parties can exercise outsized influence over who is allowed to be nominated. This creates an inherent conflict of interest especially when those in power can actively prevent independent candidates from being considered. Therefore I respectfully submit that this nomination process, in its current form, must be amended or removed entirely by way of constitutional referendum, to ensure that the people of Ireland regain their full democratic right to choose their President freely and without interference”. The process for nomination of candidates to the Office of President.

16. In order to consider the issues raised in this application, it is necessary to set out the constitutional provisions which govern the nomination process for President.

17. Article 12.4 sets out the nomination process as follows:

12.4.1. Every citizen who has reached his thirty-fifth year of age is eligible for election to the office of President.

12.4.2. Every candidate for election, not a former or retiring President, must be nominated either by i not less than twenty persons, each of whom is at the time a member of one of the Houses of the Oireachtas, or ii by the Councils of not less than four administrative Counties (including County Boroughs) as defined by law.

12.4.3. No person and no such Council shall be entitled to subscribe to the nomination of more than one candidate in respect of the same election.

12.4.4. Former or retiring Presidents may become candidates on their own nomination.

12.4.5. Where only one candidate is nominated for the office of President it shall not be necessary to proceed to a ballot for his election.

12.5. Subject to the provisions of this Article, elections for the office of President shall be regulated by law. Legal framework for presidential elections.

18. It is clear that the Office of President is created and governed by Article 12 of the Constitution. It is also clear that Article 12.4.2° provides that every candidate for election to the office of President shall be nominated either by not less than twenty members of the Oireachtas or by not less than four local authorities. This is the sole constitutional mechanism by which a person may become a candidate. It deliberately entrusts nominations to elected representatives, both national and local, as a filtering mechanism to ensure that candidates have a minimum level of political or civic support before contesting a national election.

19. The Constitution contains no requirement that political parties, or their members, facilitate the nomination of non-party candidates, nor does it prohibit political parties from issuing internal guidance or instructions to their members regarding nomination strategy.

20. Article 12.5 authorises the Oireachtas to enact legislation regulating the conduct of presidential elections. The Presidential Elections Act 1993 (“the 1993 Act”), and related instruments, govern the procedural steps for nominations and elections but do not alter the constitutional nomination process.

21. Section 6 of the 1993 Act mandates the making of a Presidential Election Order (a “PEO”) which appoints the last day on which a presidential returning officer may receive nominations, and also sets a polling day.

22. On 3rd September, 2025, the Minister for Housing, Local Government and Heritage, made the Presidential Election Order for the 2025 Presidential election, setting out the key dates in the election process. The nomination period commenced on 5th September, 2025, and closed on 24th September, 2025. Polling day was set for 24th October. 2025. Irish Constitution passed by referendum in 1937.

23. The Irish Constitution was accepted by the Irish People, having been approved in a referendum held on 1st July, 1937, in which 56.5% of voters approved the draft constitution, on a turnout of 75.84% of the electorate. The provisions for nomination of candidates for President in Article 12.4.2° therefore, were also approved by the people of Ireland in this democratic referendum. The first question – the direction by Mr. Harris to Fine Gael councillors – the issue of justiciability.

(i) Justiciability

24. The core of the plaintiff’s case is directed at what he describes as “an instruction” by the first defendant, in his capacity as leader of Fine Gael, to local councillors of the Fine Gael party not to support the nomination of independent persons to be candidates in the election. He argues that this instruction was unconstitutional.

25. It is the position of the defendants that this matter is non-justiciable and that any attempt to impugn the presidential election on this basis is lacking in merit.

26. I agree with this submission. I am of the view that this question raised by the plaintiff is not justiciable (i.e. it cannot be resolved by the courts) as it raises essentially political, not legal, issues.

(ii) Case-law

27. There is a wealth of decided cases on this issue of justiciability.

28. In O’Reilly v. Limerick Corporation [1989] ILRM 181 (p.195), Costello J. stated that in order to comply with the Constitution, certain claims must “be advanced in Leinster House rather than in the Four Courts”.

29. In Lennon v. The Minister for the Environment (Irish Times, 23rd October, 1990), the plaintiff applied to Egan J. in the High Court for short service of his motion for an injunction against the Minister for the Environment to stop the presidential election in 1990. He claimed that the provisions of the Constitution, requiring a certain number of Oireachtas members and not less than four local authorities, to nominate a candidate were unconstitutional. However Egan J. refused the application.

30. In Slattery v. An Taoiseach [1993] 1 I.R. 286, the plaintiff sought an injunction to restrain the holding of the referendum on the Maastricht Treaty. Mr. Justice McCarthy stated at page 301: “In my judgment, the application made by the plaintiffs has no foundation whatever; to grant an order such as sought would be a wholly unwarranted and unwarrantable intervention by the judiciary in what is clearly a legislative and popular domain— see Finn v. Attorney General and others [1983] I.R. 154.”

31. In T.D. (a minor) v. Minister for Education and Others [2001] 4 I.R. 259, the High Court (Kelly J.) granted a mandatory injunction directing the respondents to implement their policy forthwith dealing with the general problem of children with special needs. The respondents were unable to implement this policy in a timely manner. The Minister appealed to the Supreme Court. The Supreme Court allowed the appeal and held that, insofar as the order of the High Court purported to force the executive branch of government to implement a particular policy which extended beyond the particular needs of the applicants, the High Court had acted in breach of the doctrine of the separation of powers.

32. As Hardiman J. stated: “… if courts extend their powers to questions which are essentially political they will soon either fossilize developments on such issues or lose that basis in formal and technical logic and consistency which is an essential hallmark of legal, though not necessarily of political, discourse.”

33. In Fitzgibbon v. Ireland and the Attorney General [2001] IESC 207, the plaintiff brought proceedings against Ireland and the Attorney General seeking an injunction to delay three referenda - on the Treaty of Nice, the jurisdiction of the International Criminal Court and the abolition of the death penalty. The application was refused by the High Court and also refused by the Supreme Court. In his ex-tempore decision given on behalf of the Supreme Court, Keane C.J. referred to the Slattery decision and relied on the dicta of McCarthy J. in that case.

34. In Doherty v. The Government of Ireland and the Attorney General [2011] I.R. 222, the applicant sought a declaration that there had been unreasonable delay on the part of the government in moving the writ for a by-election. In considering the issue of justiciability, Kearns P. stated at paragraph 36 as follows: “A justiciable controversy may, at its simplest, be defined as a dispute capable of litigation in the courts. In Baker v. Carr (1962) 369 U.S. 186, the United States Supreme Court held that the issue of justiciability should be determined on a case by case basis. It has also been suggested that:- "Non-justiciability concerns whether a court can with constitutional propriety adjudicate on the matter before it or whether such an adjudication would be an infringement by the court of the role which the Constitution has conferred on it. Essentially the doctrine is concerned with identifying those claims which may be legitimately advanced before a court and those which must be advanced in parliament through the political process. In other words, is it a case for judicial or political relief." (McDermott, The Separation of Powers and the Doctrine of Non-Justiciability

35 Irish Jurist 280 at p. 280).”

35. As Kearns P. stated at paragraph 71: “…the court has no right to conduct any sort of watchdog role over events which call for consideration within the political arena.”

36. In Beades v. Ireland [2019] 2 I.R. 582, the plaintiff sought to challenge the appointment of the President of the High Court. The defendants sought an order striking out the proceedings on the basis that they were an abuse of process and disclosed no reasonable cause of action. The High Court (Haughton J.) struck out the proceedings on the grounds, inter alia, that the decision was not justiciable. At paragraph 61 the plaintiff appealed to the Court of Appeal. The Court of Appeal refused the appeal. Dunne J. stated at paragraph 61: “The trial judge in this case noted that there was nothing in the pleadings to suggest or contend that the Government had acted otherwise than in accordance with the provisions of the Constitution in nominating Kelly J. for appointment as President of the High Court. Clearly, the decision of the Government to nominate a person as President of the High Court is a function within the remit of the Government. It is a

decision that falls within the boundary of political choice, to use the language of Charleton J. in Garda Representative Association v. Minister for Finance [2010] IEHC 78, (Unreported, High Court, Charleton J., 25 March 2010). As such, being a matter of political choice it is simply not possible for the court to interfere with the discretion of the Government exercised in an area of political decision making. It seems to me that the decision of the Government to nominate an individual as President of the High Court could only be regarded as a “political” decision of the Government and one in which the Government is at large, subject to ensuring that the person concerned meets the eligibility requirements for such office, and secondly, provided that the Government has complied with the statutory obligation to first have regard to sitting judges.”

37. In Kavanagh v. The Coalition Government of Ireland and another [2023] IESC 61, Mr. Kavanagh sought to challenge the constitutionality of a 2020 agreement by Government parties regarding successive nominations for Taoiseach. Meenan J. refused leave for judicial review. Refusing leave to appeal, the Supreme Court (O’Malley, Baker and Collins JJ.) in its Determination stated at paragraph 8: “The reasons why the individual members of the Dáil vote for a nominee [for Taoiseach] have no relevance to the constitutional validity of the nomination. This is not, as a matter of law, affected by any political agreement that may have been entered into between individual members — such an agreement is of political significance only.”

(iii) The article 28A argument

38. The plaintiff also seeks declaratory relief that the First Named Defendant engaged in unconstitutional interference under Article 28A in instructing local government and councillors to block or discourage the nomination of independent presidential candidates.

39. Article 28A confers constitutional status on local government and affirms that local authorities provide a forum for democratic representation in accordance with law.

40. There is, however, nothing in this constitutional provision which provides that any political direction from the leader of a political party is unconstitutional. The plaintiff’s argument on this issue also is misconceived.

(iv) No allegations of alleged breaches of article 12.4 or the 1993 Act

41. The defendants submitted that the plaintiff could only bring a case if it were alleged that the defendants had breached the provisions of article 12.4 of the Constitution or the procedures of the Presidential Elections Act. They submitted that the plaintiff in this case could not point to any such breaches because all parties had complied, to the letter, with all the legal requirements for nominations of candidates to the Presidency. I agree with this submission.

(v) Conclusion

42. It is of considerable importance in a liberal democracy governed by the rule of law that there should be a clear dividing line between political decisions and legal decisions. However, it is not easy to set out the criteria in advance as to when a political decision is purely a political decision and when such a decision might have reviewable legal consequences. The courts must decide on a case by case basis as to whether a matter is justiciable (i.e. whether it is amenable to a legal challenge). In my view, however, it is clear that the action which is being challenged in this case (i.e. the direction by Mr. Harris, as Fine Gael leader, to Fine Gael councillors to discourage the nomination of independent candidates) is a purely political action which is not justiciable. The second question – that the nomination procedure is unconstitutional – the unconstitutionality of the Constitution.

43. At paragraph 2 of his notice of motion, the plaintiff seeks a declaration “that the presidential nomination process was void and repugnant to Articles 1, 3, 5 and Article 12.4.5 of the Constitution which affirms Ireland’s democratic character and the people’s right to choose their own government”.

44. It is clear, however, that the plaintiff’s argument on this issue also is misconceived and must be rejected. It is an argument that certain provisions of the Constitution are unconstitutional. The argument only has to be set out in such terms to realise that it is unstateable.

45. The provisions in the Constitution at Articles 1, 3, 5 and 12.4 must all be read harmoniously. It cannot be argued that Article 12.4 is contrary to Articles 1, 3 or 5. That would be an impermissible exercise in constitutional interpretation. The third issue – that the entire nomination and election process should be rerun democratically.

46. The third order which the plaintiff seeks is an order that the entire nomination and election process “be re-run democratically to uphold constitutional fairness and the sovereignty of the people”.

47. However, as set out above, it is clear that the nomination process for the Office of Presidency is itself set out in the Constitution in Article 12.4 and the Constitution was approved by the People in a referendum in 1937. The sovereignty of the People is reflected in the Irish Constitution. It is clear that the People, in a referendum, expressed their approval for an Office of the President which contains a filtering mechanism to ensure that any candidate has some minimum level of political support.

48. I am of the view that this issue also is not justiciable and that the plaintiff’s arguments that the election process should be re-run, are unstateable. The fourth issue – that the plaintiff is the only validly nominated candidate.

49. The plaintiff also seeks a declaration that he is the only validly nominated candidate and is therefore duly elected without a vote as no other valid nominations exist. The plaintiff also indicated that he is prepared to hold the office until a constitutional referendum is held to make amendments to Article 12.

50. Again however, it is clear that the plaintiff is not a validly nominated candidate under Article 12.4. The fact that he declared that he was a candidate is merely the first step in a number of steps which a candidate has to take in order to be successfully nominated as a candidate for the Presidency. The plaintiff has not fulfilled the other steps (i.e. he has not obtained the votes of 20 members of the Oireachtas or the vote of four County Councils). He is therefore not a validly nominated candidate. In the circumstances, his offer - that he would hold the Office of the Presidency until a constitutional referendum is held - does not arise.

51. In the circumstances, the plaintiff’s application on this ground also must be refused. The fifth issue – that the nomination process “appears” undemocratic.

52. The fifth relief which the plaintiff seeks is a declaration that the overall process “appears undemocratic” giving the impression that the government is choosing the government rather than allowing the people to make that choice through free and fair nomination.

53. However, I do not accept this submission. First, the nomination procedure set out in the Constitution was accepted by the democratic will of the Irish people in the referendum of 1937; secondly, that nomination process requires that a candidate must have some minimum support from the democratically elected members of the Oireachtas and/or democratically elected members of County Councils; thirdly, if there is more than one candidate, that candidate must contest a presidential election and allow the People to make that choice in a free and fair election.

54. In the circumstances, the plaintiff’s application for such a declaration must also be refused as it is not justiciable. Reform of the nomination process for the President.

55. It is clear that the plaintiff has concerns about the nomination process for the Office of the Presidency. These concerns are not new. As is stated in Kelly: The Irish Constitution (5th ed.) at paragraph 4.1.12 “Both the Constitution Review Group and the Oireachtas All-Party Committee on the Constitution agreed that the existing provisions for nominating presidential candidates were too restrictive and in need of democratisation.[27] The latter body recommended that Article 12.4.2º be amended to allow for the nomination of presidential candidates by not less than 10 members of the Oireachtas or by not less than 10,000 registered presidential electors, whilst retaining the existing provisions relating to nomination by county councils.[28] The Constitutional Convention voted overwhelmingly in favour of having some citizen participation in the nomination process, but no specific recommendation was made as to how this should be done.”

56. However, whether and how the nomination process for the Presidency should be reformed is a political matter to be decided by the People and their elected representatives. If there is to be any amendment to the nomination procedure for candidates for the Presidency, such an amendment to the Constitution would have to be approved by the People in a referendum. These matters are clearly within the preserve of the democratically elected members of the Oireachtas and the People; they are not matters for the court.

57. It is clear that the plaintiff’s real case is to bring about an amendment to the Constitution by means of a referendum. If he wishes to do this, then he must engage with the political process. Such an outcome cannot be achieved through the courts. The issue of locus standi.

58. The plaintiff is a citizen of Ireland. He has also, as he stated in his affidavit, declared his candidacy for the Presidency of Ireland on 5th September, 2025, on social media; he also sent an email to all members of the Oireachtas declaring his candidacy. I am satisfied therefore that he has locus standi to bring a case such as this. The issue of delay.

59. The defendants in their submissions also submitted that the plaintiff is guilty of delay in moving his application. In their view, the “starting gun” was fired on 6th September, 2024, when Mr. Harris, as leader of Fine Gael, issued his directive to members of Fine Gael. They submit that Mr. Byrne only issued his plenary summons and notice of motion on 8th October, 2025, and that this delay is disqualifying because he should have brought his application long before that.

60. The plaintiff submitted that the “starting gun” in respect of his application was only fired on 24th September, 2025, which was the day upon which nominations officially closed and that the first day he could have issued the proceedings was on 25th September, 2025 – the moment the full effect of the alleged interference became clear.

61. In my view, there is some merit to that submission. It was always possible that the plaintiff - or indeed another person - might have received the support of 20 members of the Oireachtas and/or four local authority councils at any stage up to the closing of nominations.

62. The plaintiff also states that immediately after 25th September, 2025, he was out of work for over a week due to illness with Covid-19 and that as soon as he recovered his strength he issued proceedings on 8th October, 2025 – just two weeks after the first day on which he could lawfully act. He submitted that this was entirely reasonable in the circumstances, given the complexity of the filings and the fact that he was acting on his own as a litigant in person.

63. In any event, I do not believe that the plaintiff was guilty of undue delay in this matter

– although clearly he could have acted earlier. It does not appear that there was any prejudice to any party as a result of his delay. Therefore, I would not hold against the plaintiff on this ground. Application to dismiss the plaintiff’s case as being bound to fail.

72. The defendants submit that the plaintiff’s proceedings should be struck out pursuant to the inherent jurisdiction of the court on the grounds that his proceedings are non-justiciable and/or are otherwise bound to fail.

73. I agree with this submission. I am of the view that the plaintiff’s proceedings are in some respects not justiciable and/or in other respects are unstateable. They are bound to fail. In the circumstances, I am of the view that they should be struck out pursuant to the inherent jurisdiction of the court.

Conclusion

74. I would therefore conclude as follows:

(1) The instruction given by Mr. Simon Harris T.D. as leader of Fine Gael to councillors of Fine Gael was a political directive; as such it is not justiciable;

(2) the plaintiff’s argument that the nomination process set out in Article 12.4 is unconstitutional is clearly doomed to failure; such an argument is, in effect, an argument that certain articles of the Constitution are unconstitutional and is unstateable;

(3) in the light of the above, the other reliefs sought by the plaintiff do not arise;

(4) the plaintiff has locus standi to bring this application;

(5) the plaintiff is not guilty of any undue delay;

(6) the proceedings will be struck out on the grounds that they are not justiciable and/or unstateable and/or are doomed to fail.