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Cite as: [2000] IESC 44

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Coughlan v. Broadcasting Complaints Commission [2000] IESC 44 (26th January, 2000)

THE SUPREME COURT
HAMILTON C.J.
DENHAM J.
BARRINGTON J.
KEANE J.
BARRON J.
142 & 148/98
IN THE MATTER OF THE BROADCASTING AUTHORITY ACTS
Between:
ANTHONY COUGHLAN
Applicant/Respondent
and

THE BROADCASTING COMPLAINTS COMMISSION AND RADIO TELEFÍS ÉIREANN
Respondents/Appellants
and

THE ATTORNEY GENERAL
Notice Party

[Judgments from all 5 judges]

Judgment of the Chief Justice handed down on the 26th day of January, 2000

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(2)

1. These are appeals brought by The Broadcasting Complaints Commission (hereinafter referred to as ‘the B CC’) and Radio Telefís Éireann (hereinafter referred to as “RTE”), against the judgment delivered by Mr. Justice Carney on the 24th day of April, 1998 and the order made in pursuance thereof on the same date whereby the Court did grant an order of certiorari quashing the decision of the BCC made on the 19th day of March, 1997 50 far as it dismissed the complaints of Mr. Anthony Coughlan (the Applicant /Respondent herein) and did declare that in relation to the Divorce Referendum of 1995 the allocation of uncontested broadcasting time to each side of the argument was significantly unequal and thereby constitutionally unfair.


2. The said order was granted on an application for judicial review brought by Mr. Anthony Coughlan (hereinafter referred to as ‘the Applicant’) who had been granted leave to apply therefor, in accordance with the provisions of Order 84 Rule 20 of the Rules of the Superior Courts, by order of the High Court made on the 17th day of June, 1997.


3. As appears from the said order the Applicant sought a number of orders and declarations but the only relevant order made by the High Court on the 24th day of April, 1998 was that set forth herein. No order was made by the


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(3)

4. High Court in respect of the other reliefs sought and there is no appeal from the failure of the trial judge to make any other orders.


Background to Application

5. In 1995, a proposal for an amendment of the Constitution was initiated in Dáil Éireann as a Bill and was passed by both Houses of the Oireachtas in accordance with the provisions of Article 46, s. 2 of the Constitution.


6. Article 46, s. 2 required that the Bill be submitted to the decision of the People in accordance with law for the time being in force relating to the Referendum.


7. The proposed amendment to the Constitution which provided for the dissolution of marriage in the circumstances outlined therein led to considerable controversy with strong campaigns in favour of a ‘Yes’ vote and equally strong campaigns in favour of a ‘No’ vote.


8. These issues raised thereby led to extensive coverage in and by the media, including RTE.


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(4)

9. There is no complaint by the Applicant with regard to the general coverage of the campaign by RTE in its news and current affairs which he accepts was monitored by RTE and approximately equal air time was given to the proponents of “Yes” and “No” votes and this coverage, to which no exception is taken represented 98% of the time expended by RTE on the coverage of the Referendum campaign.


10. During the course of the campaign, however, RTE transmitted ten political party broadcasts aggregating 30 minutes which all favoured a ‘Yes’ vote; two uncontested broadcasts from ad hoc campaign groups advocating a ‘ yes’ vote aggregating 10 minutes and two uncontested broadcasts from ad hoc campaign groups advocating a ‘no’ vote aggregating 10 minutes. In addition, it transmitted in error one repeat broadcast made by an ad hoc campaign group of 2.5 minutes.


11. Ignoring the broadcast made in error, the uncontested broadcasts in favour of a ‘Yes’ vote transmitted by RTE aggregated forty minutes and the uncontested broadcasts transmitted by RTE in favour of a ‘No’ vote aggregated ten minutes.


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12. The total uncontested broadcasts transmitted during the Divorce Referendum campaign comprised somewhat in excess of 2% of the total coverage of the Divorce Referendum campaign.


13. On the 30th January, 1996, the Applicant made a complaint to the first named Respondent/Appellant, the BCC, in relation to the transmission by RTE of political party broadcasts during the Divorce Referendum campaign and in relation to the single re-transmission made in error by RTE.


14. The BCC considered the complaint to it by Mr. Coughlan under Section 1 8B( 1 )(b) of the Broadcasting Authority Act, 1960 as amended by the Broadcasting Authority (Amendment) Act, 1976.


15. On the 19th March, 1997, the BCC made its decision on Mr. Coghlan’s complaint in the following terms:


“Decision of the Commission:

Section 18 of the Broadcasting Authority Act 1960 as amended describes the manner in which RTE is required to report upon current affairs and matters of public importance. Section 18 of the 1960 Act has been amended by Section 3 of the Broadcasting

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(6)

Authority (Amendment) Act 1976, and so far as relevant reads as follows:

(1) Subject to Sub-Section (la) of this section, it shall be the duty of the Authority to ensure that:

(a) All news broadcast by it is reported and presented in an objective manner and without any expression of the Authority ‘s own views.

(b) The broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority ‘s own views

In her decision in the Anti-Divorce Campaign [case] entitled Patrick Kenny . v. Radio Telefís Éireann, delivered November 2 0th, 1995, Ms. Justice Laffoy stated that Sub-Section 2 of the Section

18 of the Broadcasting Authority Act, 1960 states that “Nothing in this section shall prevent the Authority from transmitting political party broadcasts “. It is the opinion of the Commission that RTE did not breach its statutory obligations in broadcasting the

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various Party Political broadcasts. Section 18(2) allows RTE to broadcast party political broadcasts in the context of the referenda.

The Commission dismiss this part of Mr. Coghlan’s complaint. However, in broadcasting the second transmission of a broadcast by the Right to Remarry group (which was not a party political broadcast) on the 19th November RTE did breach its statutory obligations. They failed to counterbalance this broadcast by either giving a repeal facility to the opposing side or in some other way address the imbalance. The Commission uphold this part of the Complaint.”

16. Being aggrieved by that portion of the decision of the BCC which dismissed the substantial complaint made by him, the Applicant applied for, and by order of the High Court made on the 17th June, 1997, was granted leave to seek by way of judicial review the reliefs set on the order of the High Court made on that date on the grounds set forth at (e) in the Statement of Grounds dated the 16th day of June, 1997.


17. Statements of Opposition were filed on behalf of the BCC and RTE.


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(8)

18. In the course of his judgment the learned trial judge Carney J. stated:-


“Mr. Coughlan seeks to have the decision of the Broadcasting Complaints Commission quashed on the basis that it wholly misapplied the relevant law in holding that there was no breach by RTE of the provisions of the Broadcasting Acts where the breach alleged was an imbalance in Referendum coverage consequential upon allowing political parties to have party political broadcasts.

Mr. Coughlan seeks to have the Commissions decision quashed on two grounds. Firstly, he says that the Commission misinterpreted the statute and misdirected itself in law and thereby deprived itself of jurisdiction to adjudicate on Mr. Coughlan ‘s complaint. Secondly, Mr. Coughlan complains of procedural irregularities under which he was given the run-around. If Mr. Coughlan succeeds on his first ground it does not seem to me that his second needs to be considered.”

19. Having found in favour of the Applicant on the first ground, the learned trial judge did not deal with the second ground and this Court is not concerned therewith.


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20. It is necessary to set forth at this stage the provisions of the Broadcasting Acts 1960 - 1976 relevant to these proceedings.


21. RTE (or Radio Eireann as it was then known) was established by Section 3(1) of the Broadcasting Authority Act, 1960. Its principal function was to establish and maintain a national television and sound broadcasting service.


Section 18 of the Act imposed on RTE a duty of impartiality but expressly permitted it to transmit political party broadcasts. It reads as follows: -

“18. -(1) It shall be the duty of the Authority to secure that, when it broadcasts any information, news or feature which relates to matters of pubic controversy or is the subject of current public debate, the information, news or feature is presented objectively and impartially and without any expression of the Authority ‘s own views.

(2) Nothing in this section shall prevent the Authority from transmitting political party broadcasts.”

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22. Section 13 of the Broadcasting Authority (Amendment) Act, 1976 set out the general duty of RTE, repealed Section 17 of the principal Act and replaced it with a new Section 17 in the following form:-


“1 7.- In performing its functions the Authority shall in its programming -

(a) be responsive to the interests and concerns of the whole community, be mindful of the need for understanding and peace within the whole island of Ireland, ensure that the programmes reflect the varied elements which make up the culture of the people of the whole island of Ireland, and have special regard for the elements which distinguish that culture and in particular for the Irish language,

(b) uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, and

(c) have regard to the need for the formation of public awareness and understanding of the values and traditions of countries other that the State, including

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in particular those of such countries which are members of the European Economic Community.”

Section 3 of the 1976 Act repealed sub-section (1) of Section 18 of the 1960 Act and replaced it with the following sub-section:-

“(1) Subject to subsection (1A) of this section, it shall be the duty of the Authority to ensure that -

(a) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the Authority ‘s own views,

(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority ‘s own views,

(c) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to

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(12)

section 16 of this Act is published, distributed or sold by the Authority is presented by it in an objective and impartial manner.

Paragraph (b) of this subsection, in so far as it requires the Authority not to express its own views, shall not apply to any broadcast in so far as the broadcast relates to any proposal, being a proposal concerning policy as regards broadcasting, which is of public controversy or the subject of current public debate and which is being considered by the Government or the Minister.

Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period.

(1A) The Authority is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

(1B) The Authority shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual.”

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(13)

23. Finally, the 1976 Act by Section 18(A) set up a Broadcasting Complaints Commission.


24. It is clear from the foregoing statutory provisions that in the performance of its functions, including its programming, RTE were under a duty to uphold the democratic values enshrined in the Constitution especially those relating to rightful liberty of expression and to ensure that all news broadcast by it is reported and presented in an objective and impartial manner and the broadcast treatment of current affairs is fair to all interests concerned and that the broadcast is presented in an objective and impartial manner and without any expression of RTE’s own views.


25. It is accepted by the Applicant that throughout the Divorce Referendum Campaign, the news in relation thereto was reported and presented by RTE in an objective and impartial manner and that its general treatment of the issue was fair to all interests concerned and was presented in an objective and impartial manner.


26. The Applicant’s complaint relates to the transmission of the party political broadcasts during the course of the campaign.


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27. Section 18(2) of the Broadcasting Authority Act, 1960 specifically provides that:-


“Nothing in this section shall prevent the Authority from transmitting political party broadcasts.”

Section 18(1) of the 1960 Act was repealed by Section 3 of the 1976 Act and replaced by the sub-sections set forth in Section 3 thereof. There was however no repeal of or amendment to Section 18(2) of the 1960 Act.

28. In his affidavit grounding the application to the High Court for liberty to seek relief by way of judicial review, the Applicant averred that:-


“The more important and fundamental issue and the one which caused me to complain in the first instance is still unresolved and appears to this deponent to bear on the correct interpretation of the Broadcasting Acts in the light of the law and in particular the interpretation of section 18(1) and section 18(2) of the said Acts, and in the light of the Constitution. As implied by the Commission in its decision, and as expressed by RTE in what appears to me to be a summary of its response to the Commission ‘s letter and decision (letter of 28th June 1996), RTE considers that section 18(2) can be read independently of the entire corpus of the

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(15)

Broadcasting Acts in a manner which allows party political broadcasts to be made in a Referendum situation so that they are ‘beyond the reach of the obligation to be objective and impartial’. I do not believe that the Broadcasting Acts can be properly construed in such a manner, as I perceive such an attitude to be in breach of the plaint meaning and intent of section 18(1) and in particular the statutory commentary following 18(1) (c) as inserted by section 3 of the 1976 Act which permits two or more related broadcasts to be considered as a whole in order to secure overall fairness and balance; and to be in breach of RTE ‘s statutory obligation (section 17 of the 1960 Broadcasting Act as amended by section 13 of the Broadcasting Authority (Amendment) Act 1976) to ‘Uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression’ as well as to comply with constitutional justice.”

29. The learned trial judge in upholding the Applicant’s claim, stated in the course of his judgment:-


“RTE as the National Broadcasting Service, is subject to the Constitution and also to Section 17(b) of the Broadcasting Authority Act, 1960 as amended which requires it to uphold the

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democratic values enshrined in the Constitution. In my view a package of uncontested and partisan broadcasts by the National Broadcasting Service weighed on one side of the argument is an interference with the referendum process of a kind contemplated by Hamilton C.J. as undemocratic and is a constitutionally unfair procedure”

and

“I am satisfied that RTE ‘s said approach has resulted in inequality amounting to unconstitutional (sic) unfairness which would not have arisen had their starting point been to afford equality to each side of the argument to which there could only be a Yes and No answer.

The learned trial judge quashed the decision of the BCC and granted the declaration referred to herein. From that decision the BCC and RTE now appeal to this Court.

As stated by Mr. Justice Keane in the judgment which he will hand down:-

“At the outset of the first hearing of the appeal, members of the court pointed out that, since the remit of the BCC was confined

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(17)

to adjudicating on a complaint and transmitting their decision, together with the reaction of RTE thereto, to the Oireachtas in its annual report, it did not appear that his rights would be affected in any way even were they to exercise their powers, as he claimed they did, on an erroneous view of the law and that, accordingly, their actions might not be amenable to judicial review. Such a case did not appear to have been pressed to any extent in the High Court and was not dealt with in the judgment under appeal. However, since it was accepted by all the parties that the central issue in the case was as to whether the declaration already referred to was properly granted as against RTE, it was clear that no useful purpose would be served by remitting the action to the High Court for a new hearing on the question as to whether the determination by the BCC was amenable to judicial review.”

30. Consequently, the only issue for determination in these appeals is whether the declaration that RTE had acted unlawfully in the allocation of the political party broadcasts, should have been granted, irrespective of whether the High Court was also correct in granting an order of certiorari quashing the decision of the BCC.


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31. On this issue I have read the judgment about to be handed down by Mr. Justice Keane. I agree with it in its entirety and his conclusion for the reasons stated therein that the appeals herein be dismissed.


32. I consider it necessary having regard to the terms of the judgment to be handed down by Mr. Justice Barrington to deal with the duties and functions of RTE in regard to their coverage of a Referendum Campaign and in particular the Divorce Referendum Campaign.


33. As I stated during the course of my judgment in McKenna .v. An Taoiseach (No. 2) [1995] 2 IR 10 at pages 4 1-42 of the Report:-


“The role of the People in amending the Constitution cannot be over-emphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone.

Having regard to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated

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(19)

by Walsh J. in Crotty .v. An Taoiseach [1987] IR 713, ‘it is the people themselves who are the guardians of the Constitution’.

34. As the guardians of the Constitution and in taking a direct role in government either by amending the Constitution or by refusing to amend, the People, by virtue of the democratic nature of the State enshrined in the Constitution, are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.


35. The constitutional process to be followed in the amendment of the Constitution involves not only compliance with the provisions of Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994, but also that regard be had for the constitutional rights of the citizens and the adoption of fair procedures.


36. The Bill containing the proposal to amend the Constitution was initiated in Dáil Éireann, passed by both Houses of the Oireachtas and then submitted for the decision of the People.


37. Once the Bill has been submitted for the decision of the People, the People were and are entitled to reach their decision in a free and democratic manner.


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(20)

38. The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a Yes’ vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.”


39. While this case related to the use by the Government of public funds to fund a campaign designed to influence the voters in favour of a “Yes” vote, the principles upon which it was based are of general application, being based on the constitutional rights of the citizens and the requirements of fair procedures.


40. RTE was established by Section 3(1) of the 1960 Act which provided that:-


“There shall, by virtue of this section, be established on the establishment day an authority to be known as Radio Eireann (in this Act referred to as the Authority).”

41. The function of the Authority was set forth in Section 16(1) of the Act which provided that:-


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(21)

“The Authority shall establish and maintain a national television and sound broadcasting service ...”

42. By virtue of the provisions of Section 18(1) of the Act of 1960, as amended and replaced by the provisions of Sections 3 and 13 of the Act of 1976, RTE is under a statutory duty


(i) to report and present all news broadcast by it in an objective and impartial manner;

(ii) to ensure that its broadcast treatment of current affairs is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner, and

(iii) to uphold the democratic values enshrined in the Constitution, especially those relating to rightful freedom of expression.

43. Section 18(2) of the Act of 1960 however provides that -


“Nothing in this section shall prevent the Authority from transmitting political party broadcasts.”

44. RTE is under no obligation, statutory or otherwise, to transmit political party broadcasts.


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(22)

45. In the course of his judgment in The State (Lynch) .v. Cooney [1982] IR 337 Walsh J. stated:-


“Radio Tekefís Éireann (the Authority) is under no statutory, or other, obligation to transmit political broadcasts but is entitled to do so.”

46. Having regard to their very nature and purpose, political party broadcasts could not be expected to meet the requirements with regard to objectivity and impartiality required by Section 18(1) of the Act of 1960 as amended as their purpose is to propagate the views of the particular party concerned and usually in a partisan manner.


47. RTE exercises no editorial control over the content of political party broadcasts save to ensure that there was no breach of any law by which RTE was bound.


48. Despite the requirements of Section 18(1) as amended, RTE are permitted by Section 18(2) to transmit political party broadcasts even though their content is not subject to the requirements of fairness, objectivity and impartiality.


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(23)

49. As stated by Henchy J. in the course of his judgment in The State (Lynch) .v. Cooney at page 382 of the Report:-


“It is to be noted that what is permitted by sub-s. 2 of s. 18 (despite the requirement in sub-s. 1, as amended, of fairness, objectivity and impartiality) is political party broadcasts.’ It is a necessary implication of the power thus conferred that it will be exercised in a constitutional manner. For example, if the Authority were to allow one political party to make apolitical party broadcast while denying that opportunity to any of the other political parties contesting the election, any one of those excluded political parties could complain of unfair discrimination contrary to Article 40, s. 1, of the Constitution, unless the exclusion could be justified under that constitutional provision.

In the course of his judgment in the instant case Mr. Justice Barrington, having cited the said passage went on to say that:-

“It is important to note that Henchy J regarded party political broadcasts as an exception to sub-section (1) of Section 18 as amended. The constitutional fairness he refers to is fairness as between political parties. The broadcasts are an exception to the

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requirements of Section 18, sub-section (1) but are nevertheless caught by the Constitution itself which requires that equals be treated equally.”

50. I do not agree with this interpretation of the said passage from the judgment of Henchy J.


51. In the following passage from the judgment of Henchy J. immediately preceding the passage quoted by Barrington J., Henchy J. had stated:-


“It is correct as a general statement to say that a citizen, as such, has no particular legal right to make a broadcast. Such a right will normally arise only when an agreement to broadcast is made. However, this does not mean that the Authority has carte blanche as to what kinds of broadcasts it will transmit or as to whom it will allow to broadcast. Its discretion in respect of those matters is limited by the requirements of the Broadcasting Authority Acts, 1960-1976.

Section 18, sub-s. 1, of the Act of 1960 (as amended) provides, inter alia, that, subject to sub-s. 1A of the section, it shall be the duty of the Authority to ensure that ‘(b) the broadcast

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(25)

treatment of current affairs, including matters which are either of public controversy or the subject of current public debate is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority’s own views.’ Since a political party broadcast can rarely be said to be impartial or objective in its content or presentation, it might be said that such a broadcast is forbidden by that statutory directive. However, sub-s. 2 of s. 18 subjects sub-s. 1 to the following modification or qualification:- ‘Nothing in this section shall prevent the Authority from transmitting political party broadcasts.

It is clear from a consideration of the aforesaid passages from the judgment of Henchy J. that what he was concerned with was not the content of the political party broadcast but rather the power of RTE to transmit such political party broadcast and that his statement that “it is a necessary implication of the power thus conferred that it will be exercised in a constitutional manner” referred to the exercise of such power.

52. Consequently, I am satisfied that these statements support the proposition that in deciding to transmit political party broadcast and all issues


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in relation thereto RTE in reaching such decision must have regard to fair procedures and the exercise of the power in that regard will be exercised in a constitutional manner.

53. In the case of a Referendum which has as its objective the amendment of the Constitution, fair procedures require that the scales should be held equally between those who support and those who oppose the amendment.


54. The party political broadcast with which we are concerned in these appeals cannot be regarded as normal party political broadcasts but were devoted specifically to the issue to be put to the electorate in the referendum.


55. Political parties have no right, whether under the statute or under the Constitution, to be afforded the opportunity by RTE to make political party broadcasts. It is purely a matter for the discretion of RTE as to whether or not they will transmit such broadcasts.


56. In reaching the decision to transmit such broadcasts, RTE is obliged to, in the context of a referendum, to hold the scales equally between those who support and those who oppose the amendment.


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(27)

57. The allocation often party political broadcasts, to be shared between five political parties, did not hold the balance equally between those who supported the Referendum and those who opposed it.


58. By no stretch of the imagination can that be regarded as maintaining a proper balance and such failure to maintain a proper balance was not in any way compensated for by the allocation of two uncontested broadcasts to ad hoc campaigners advocating a “No” vote in the Referendum.


59. Consequently, I am satisfied that the transmission of ten party political broadcasts, all of which advocated a “Yes” vote was unconstitutional and in breach of fair procedures.


60. Political Parties undoubtedly have and are entitled to play an important role in the conduct of a Referendum. There are many ways in which they can fulfil that role without recourse to a political party broadcast which can only be transmitted by RTE in the course of a Referendum Campaign if they hold the balance equally between those who supported the Referendum and those who opposed it.


61. I would dismiss the appeals herein.


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THE SUPREME COURT
Appeal No. 142/1998
Appeal No. 148/1998
Judicial Review 1997/209 J.R.
IN THE MATTER OF THE BROADCASTING AUTHORITY ACTS
Hamilton, C.J.
Denham, J.
Barrington, J.
Keane, J.
Barron, J.

BETWEEN
ANTHONY COUGHLAN
APPLICANT/RESPONDENT
AND

THE BROADCASTING COMPLAINTS COMMISSION
RESPONDENT/APPELLANT
AND

RADIO TELEFÍS ÉIREANN
RESPONDENT/APPELLANT
AND

THE ATTORNEY GENERAL
NOTICE PARTY

Judgment of The Hon. Mrs. Justice Denham delivered the 26th day of January, 2000.

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62. This is an appeal by the Broadcasting Complaints Commission (hereinafter referred to as the first named respondent) and Radio Telefís Éireann (hereinafter referred to as the second named respondent) from a decision of the High Court (Carney, J.) dated 24th April, 1998. Submissions were also made on behalf of the Attorney General that the learned trial judge erred in law. The issue before the court is the declaration made by the High Court that in relation to the Divorce Referendum of 1995 the allocation of uncontested broadcasting time to each side of the argument was significantly unequal and thereby constitutionally unfair.


63. In the run up to the Divorce Referendum of 1995 the second named respondent permitted five political parties (who were committed to a yes vote) to make party political broadcasts. They were given two broadcasts each. In addition groups supporting the amendment and opposing the amendment were given air time to make broadcasts in similar circumstances to the party political broadcasts. This resulted (for the purpose of the issue in this case) in 40 minutes of broadcasting time given to the “Yes” side and ten minutes to the “No” side. It is this imbalance in uncontested broadcasting time during the run up to the referendum which is in issue and which falls to be considered in light of the legislation and the Constitution.


64. The applicant complained to the first named respondent that the second named respondent had infringed section 18 of the Broadcasting Act, 1960, as amended by the Broadcasting Authority (Amendment) Act, 1976. Ultimately the first named respondent rejected the applicant’s complaint. The complaint and response are set out fully in the judgment of the High Court.


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Legislation

Section 18(1), Broadcasting Authority Act, 1960, as substituted by s.3 of the Broadcasting Authority (Amendment) Act, 1976, states:

“(1) Subject to subsection (lA) of this section, it shall be the duty of the Authority to ensure that-

(a) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the Authority’s own views,

(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority’s own views,

(c) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed or sold by the Authority is presented by it in an objective and impartial manner.

Paragraph (b) of this subsection, in so far as it requires the Authority not to express its own views, shall not apply to any broadcast in so far as the broadcast relates to any proposal, being a proposal concerning policy as regards broadcasting, which is of public controversy or the subject of current public debate and which is being considered by the Government or the Minister.

Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period.

The first named respondent was established pursuant to section 1 8A, Broadcasting Act, 1960, as inserted by s.4, Broadcasting Authority (Amendment) Act, 1976. Its functions are set out in section 1 8B, Broadcasting Act, 1960, as inserted by s.4, Broadcasting Authority

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(Amendment) Act, 1976 and include the investigation of and decision on a complaint that a programme either did not comply with the requirements or was in breach of the prohibition in s.18(lA).

Section 18(2) of the Broadcasting Authority Act, 1960 states:

“Nothing in this section shall prevent the Authority from transmitting political party broadcasts.”

Section 18(2) is at the core of this case. However, it is not a section to be construed in isolation. Whilst party political broadcasts, which are of their nature partial, are not prohibited, the second named respondent remains subject to the duties imposed in s.18(l). In addition, the second named respondent must comply with s.17. Of special relevance is the reference to the democratic values enshrined in the Constitution. Section 17 of the Broadcasting Authority Act, 1960, as substituted by s.13 of the Broadcasting Authority (Amendment) Act, 1976, provides:

“In performing its functions the Authority shall in its programming -

(a) be responsive to the interests and concerns of the whole community, be mindful of the need for understanding and peace within the whole island of Ireland, ensure that the programmes reflect the varied elements which make up the culture of the people of the whole island of Ireland, and have special regard for the elements which distinguish that culture and in particular for the Irish language.

(b) uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, and

(c) have regard to the need for the formation of public awareness and understanding of the values and traditions of countries other than the State, including in particular those of such countries which are members of the European Economic Community.”

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The Constitution

65. A provision of the Constitution may be amended by way of variation, addition or repeal in the manner provided for in Article 46 of the Constitution of Ireland. Article 46.2 states:


“Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.”

66. A majority of the votes cast in such a referendum is sufficient to approve an amendment: Article 47, Constitution of Ireland. A Bill containing a proposal to amend the Constitution shall be signed by the President forthwith upon the President being satisfied that the provisions of Article 46 have been complied with and that such proposal has been duly approved by the people in accordance with section 1 of Article 47, and shall be duly promulgated by the President as law.


67. Ireland is a democratic State: Article 5. The Constitution requires equality before the law: Article 40.1. All powers come from the people: Article 6. The sovereign power is in the people and is exercised by them through elected representatives in representative government, or directly. Government by representatives of the people is the norm. However, on occasion direct democracy is invoked. A referendum is an exercise in direct democracy by the people.


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Machinery of Referendum

68. The Constitution of the Free State of Ireland, 1922 introduced the referendum into Ireland. This was consistent with the democratic nature of that Constitution. A referendum involves a system of direct legislation by the people, and is an important aspect of a modem democracy.


69. The machinery for a referendum under the Constitution of the Free State of Ireland, 1922 was complex. That choice of system is described in Dr. Leo Kohn’ s book, “The Constitution of the Irish Free State”, George Allen and Unwin Ltd., London, 1932, at page 238, as follows:


“Its model is to be found less in the older American, Australian and Swiss precedents than in the post-War Constitutions of the new Continental Republics. In the latter democratic zeal, political doctrinarism and distrust of the mechanism of parties and Parliaments had combined to produce a highly involved design of direct legislation interwoven with the fabric of representative institutions.”

70. In addition, the Constitution of 1922 made provision for the potential adoption of an Initiative procedure. Of it Dr. Leo Kohn, in his said book, at pages 24 1-242 wrote:


“Despite the patent reluctance of the Constituent Assembly to sanction the immediate introduction of the Initiative, the provisions adopted went further than those of almost any of its Continental models in enabling an extra-parliamentary system of legislation to be set up.”

71. A strong case has been made against direct government in a democracy. For example, Dr. Kohn, at pages 244-245 stated:


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“The case against direct legislation has in recent years been vindicated in ever-growing measure both by political experience and by theoretical analysis. Its crudeness in the face of the highly complex problems of modern legislation, its exclusion of the vital factor of authoritative deliberation, its anarchical interference with representative government, its inevitable production of incoherent legislation, its intolerance of religious and racial minorities - these and kindred defects of the system have often been stressed. Recent experience in Continental countries has emphasised its most insidious feature: the irresponsibility of the anonymous legislator. Popular support may easily be mobilised by skilful agitation for a law or petition embodying a high sounding postulate, but a second Referendum or Initiative designed to introduce consequential legislation and possibly entailing material sacrifices, may be ignominiously defeated by the sponsors of high principle.”

72. There are only a few occasions when direct democracy is invoked. The Constitution of Ireland, 1937 provides for referendum by the people. There is no provision for a popular Initiative. Even in the instrument of direct democracy, the referendum, the procedure for a referendum under the Constitution of Ireland, 1937, envisages that the Houses of the Oireachtas play a key role. Every proposal for an amendment of the Constitution must be initiated in Dáil Éireann. It must be passed or deemed passed by both houses and then submitted to the people to decide. Thus, the institutions of representative politics in the State have a critical part to play in the referendum process in its introduction and commencement.


73. The referendum process is an important device in a democracy. It is a tool for direct democracy. It is an alternative to the representative government process. It gives people a method of direct democracy on important issues. It is a contrasting system to that of party political representative democracy. It is the people who legislate.


74. The referendum process is a different process to that of an election. In a general election or a local election political parties are key players. They are running for power, for government. The institutions of representative democracy are driven by the party political


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system. Thus, party politics are at the core of an election or a general election. The party political broadcast is an important part of that process. In contrast, in a referendum the process is one of direct legislation. It is an alternative approach to legislation by elected representatives. Consequently, the role of elected representatives is different.

75. In a general election or a local election there are usually many issues. In a referendum there is a single issue - whether or not to change the Constitution.


76. On the issue raised in a referendum a political party may have a view that is shared by the vast majority of its members. Or the political party may be internally divided on the issue. A political party may use the process of a referendum to allow a decision be made ultimately on a non-party basis. In addition, there may be many non-political party groups or groups established solely to campaign on the issue active in the public debate.


77. The presentation of the issue to the public is different to the presentation in an election. The referendum procedure established under the Constitution is an exercise in direct democracy. However, the process commences in the legislature. There the political parties have a key role. There is initial control of the process by the legislature. Thus, the referendum machinery is not a threat to the system of representative democracy. However, once the process leaves the Dáil and Seanad, the institutions of representative democracy, it is a tool of direct democracy and the system should be fair, equal and impartial.


78. There are two sides in a referendum, those who favour the change and those who do not. Even if all the political parties favour changing the status quo the current Constitution is the alternative. It is unlikely that all the political parties will favour the status quo as the implementation process rests with the Houses of the Oireachtas and thus effectively with the political parties. In such circumstances a Bill for a referendum is unlikely to be passed.


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79. The conduct of a referendum has been the subject of recent decisions by the Supreme Court: McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10 and Hanafin v. The Minister for the Environment [1996] 2 IR 321. In McKenna v. An Taoiseach a majority of the court held that the Government’s use of taxpayers money to promote a yes vote was an interference with the democratic process and an infringement of the concept of equality which is fundamental to the democratic nature of the State.


80. The Government has a duty to inform the people of its views. This will have been done initially through the debates in the Dáil and Seanad leading to the Bill grounding the referendum. There should be a public debate on the issues prior to the referendum. It is entirely correct in a democracy that political parties inform people of their views and campaign on the issue. State funding may be allocated to enable a full debate and expended in a fair and constitutional fashion.


McKenna v. An Taoiseach and Hanafin v. The Minister for the Environment illustrate the necessity for fairness and equality in referenda. These concepts are to be found in the legislation in issue. Section 18 of the Broadcasting Act, 1960, requires an approach which is objective, impartial and fair to all the interests concerned. Section 17 specifically requires the upholding of the democratic values enshrined in the Constitution.

81. Party political broadcasts must be analysed in accordance with the overall requirements of the Broadcasting Act, especially as established in 5.18(1). Whereas s.18(2) permits the broadcasting of party political broadcasts the second named respondent must exercise the overall - broad picture - of impartiality and fairness. Thus, if the political parties take different stances on a referendum issue the broadcasting of party political broadcasts would present a divided view which would prima facie be fair even if not mathematically equal. Mathematical equality is not a requirement of constitutional fairness and equality.


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82. However, if all the parties are either in favour of or opposed to a referendum then party political broadcasts become prima facie, unfair and unequal and the issue must be approached from the standpoint of the overall obligations imposed by the legislation and the Constitution.


83. The very nature of a party political broadcast is that the second named respondent gives free air time to a political party and does not edit the content. The content will be partial to the political party. The specific party political broadcast will not be edited. However, the responsibility of impartiality for the overall coverage remains with the second named respondent.


84. In general elections the political parties have a key role. They are striving for political power in a democracy. Each party presents its case for power. However, that is not the situation in a referendum to amend the Constitution.


85. Party political broadcasts may be only a very small proportion of broadcasting prior to a referendum. In planning coverage in a run up to a referendum the general news and current events coverage may constitute greater air time. However, that could change. Also, because of their nature, party political broadcasts may be powerful tools, being air time when only one point of view is presented and at peak viewing times. The constitutional principles of equality and fairness applicable to broadcasting by the second named respondent will continue to be important as narrow casting is developed, as methods of communication which can be retrieved and viewed individually and repeatedly through electronic communication such as the Internet, is developed.


86. The decision as to whether or not there should be party political broadcasts is for the second named respondent. The decision must be arrived at in the context of equality and fairness. It will depend on the circumstances. It might be necessary to decide to hold no party political broadcasts in a referendum campaign.


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Conclusion

87. The facts of this case have been fully set out by Keane J. I am in agreement with his judgment. For the reasons stated herein also I would uphold the declaration made by the High Court that in relation to the Divorce Referendum of 1995 the allocation of uncontested broadcasting time to each side of the argument was significantly unequal and thereby constitutionally unfair.


88. I would dismiss the appeal.


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THE SUPREME COURT
Judicial Review No. 1997 209 JR
Appeal No. 142 & 148/9 8
Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Barron J.
IN THE MATTER OF THE BROADCASTING AUTHORITY ACTS
Between:
ANTHONY COUGHLAN
Applicant/Respondent
and

BROADCASTING COMPLAINTS COMMISSION
First-named Respondent/Appellant
and

RADIO TELEFÍS ÉIREANN
Second-named Respondent/Appellant
and

THE ATTORNEY GENERAL
Notice Party

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JUDGMENT delivered on the 26th day of January 2000 by Barrington J.

89. This is an appeal from the Judgment and Order of Mr. Justice Carney dated the 24th day of April, 1998 by which he granted an Order of certiorari quashing a decision of the First-named Respondent made on the 19th day of March, 1997 SO far as it dismissed the complaints of the Applicant and granted a declaration that in relation to the Divorce Referendum of 1995 the allocation of uncontested broadcasting time to each side of the argument was significantly unequal and therefore constitutionally unfair.


DECISION OF THE BROADCASTING COMPLAINTS COMMISSION.

90. The decision of the Broadcasting Complaints Commission (hereinafter referred to as the Commission) is dated the 19th day of March, 1997. The portion complained of reads as follows:-


“Section 18 of the Broadcasting Authority Act 1960 as amended describes the manner in which RTE is required to report upon current affairs and matters of public importance. Section 18 of the 1960 Act has been amended by Section 3 of the Broadcasting Authority (Amendment) Act 1976, and so far as relevant reads as follows ..-

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‘(1) Subject to Sub-Section (la) of this Section, it shall be the duty of the Authority to ensure that.’

(a) all news broadcast by it is reported and presented in an objective manner and without any expression of the Authority ‘s own views.

(b) The broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority ‘s own views’.

91. In her decision in the Anti-Divorce Campaign [case] entitled Patrick Kenny v Radio Telefís Eireann, delivered November 20th, 1995 , Ms. Justice Laffoy stated that Sub-Section 2 of the Section 18 of the Broadcasting Authority Act, 1960 states that ‘Nothing in this section shall prevent the Authority from transmitting political party broadcasts’. It is the opinion of the Commission that RTE did not breach its statutory obligations in broadcasting the various party political broadcasts. Section 18 (2) allows RTE to broadcast party political broadcasts in the context of the referenda.


92. The Commission dismiss this part of Mr. Coughlan ‘s complaint”.


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93. The Commission upheld this portion of Mr. Coughlan’s complaint. This portion of the Commission’s decision was not challenged in these proceedings but it is helpful as showing the approach which the Commission adopted in resolving the complaint.


“However, in broadcasting the second transmission of a broadcast by the Right to Re-Marry group (which was not a party political broadcast) on the 19th November, RTE did breach its’ statutory obligations. They failed to counterbalance this broadcast by either giving a repeat facility to the opposing side or in some other way address the imbalance. The Commission uphold this part of the Complaint “.

PROCEDURAL PROBLEM

94. A procedural problem arose at the commencement of the hearing of the appeal in this Court. This was whether decisions of the Commission were amenable to judicial review by way of certiorari. This matter had not been debated in the Court below and a question arose as to whether the case should be remitted to the High Court to allow this debate to take place. No party wanted this. All parties were agreed that the central issue in the case was whether Radio Telefís Eireann (hereinafter called RTE) had acted with constitutional fairness in the way in which it had allocated “uncontested”


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broadcasting time during the Referendum Campaign on Divorce. Approximately 98% of the Broadcast coverage of the campaign was monitored by RTE to ensure that a proper balance was kept between the advocates and the opponents of the divorce proposal. This case is concerned with the balance of the coverage amounting to just over 2%. This 2% is referred to - somewhat misleadingly - as the “uncontested” broadcasts. It consists of two uncontested broadcasts from ad hoc campaign groups advocating a “yes” vote and two uncontested broadcasts from ad hoc groups advocating a “no” vote. Each side received a total allotment of ten minutes so that if one looks at the ad hoc groups alone the time allotted was equal.

95. But RTE also carried ten political party broadcasts amounting to thirty minutes in all. It so happened that all the political parties favoured a vote so that if one takes the aggregate of the “uncontested” broadcasts forty minutes (or 80% of the time) was given to those who advocated a “yes” vote and only ten minutes (or 20% of the time) was given to those who advocated a no” vote. Whether it is correct in law to aggregate the “uncontested” broadcasts in this way is one of the matters in dispute in these proceedings.


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STATUTORY FRAMEWORK.

96. RTE (or Radio Eireann as it was then known) was established by Section 3(1) of the Broadcasting Authority Act, 1960. Its principal function was to establish and maintain a national television and sound broadcasting service.


Section 18 of the Act imposed on RTE a duty of impartiality but expressly permitted it to transmit political party broadcasts. It reads as follows:-

18.-(l) “It shall be the duty of the Authority to secure that, when it broadcasts any information, news or feature which relates to matters of public controversy or is the subject of current public debate, the information, news or feature is presented objectively and impartially and without any expression of the Authority ‘s own views.

(2) Nothing in this section shall prevent the Authority from transmitting political party broadcasts “.

Section 13 of the Broadcasting Authority (Amendment) Act, 1976 set out the general duty of RTE, repealed Section 17 of the Principal Act and replaced it with a new Section 17 in the following form:-

17.- “In performing its functions the Authority shall in its programming-

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(a) be responsive to the interests and concerns of the whole community, be mindful of the need for understanding and peace within the whole island of Ireland. ensure that the programmes reflect the varied elements which make up the culture of the people of the whole island of Ireland, and have special regard for the elements which distinguish that culture and in particular for the Irish language.

(b) uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, and

(c) have regard to the need for the formation of public awareness and understanding of the values and traditions of countries other than the State, including in particular those of such countries which are members of the European Economic Community “.

Section 3 of the 1976 Act repealed sub-section (1) of Section 18 of the 1960 Act and replaced it with the following sub-section:-

“(1) Subject to subsection (1A) of this section, it shall be the duty of the Authority to ensure that-

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(a) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the Authority’s own views,

(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority’s own views,

(c) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed or sold by the Authority is presented by it in an objective and impartial manner.

Paragraph (b) of this subsection, in so far as it requires the Authority not to express its own views, shall not apply to any broadcast in so far as the broadcast relates to any proposal, being a proposal concerning policy as regards broadcasting, which is of public controversy or the subject of current public debate and which is being considered by the Government or the Minister.

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Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period.

(1A) The Authority is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

(1B) The Authority shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual”.

97. Finally the 1976 Act by Section 18(A) set up a Broadcasting Complaints Commission.


COMMENTARY.

(1) Significance of S. 18 s.s. (2).

98. I should like to make some comments on this Statutory scheme:-


99. First one must not underestimate the importance and significance of Section 18 sub-section (2) of the 1960 Act which allows RTE to transmit party political


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broadcasts. A suggestion was made during the debate that the sub-section was, in some sense, archaic and a survival from an earlier age. But it is highly significant that the 1976 Act repealed the sub-section in front of it and inserted a new section after it but left Section 18 sub-section (2) intact. It is also significant that when, some eighteen years later, the Oireachtas established the Independent Radio and Television Commission it imposed (by Section 9 of the Radio and Television Act, 1988) similar duties of objectivity and impartiality in relation to news and current affairs programmes but went on to provide (at Section 9 sub-section (2) “Nothing in subsection 1(a) or 1(b) shall prevent a sound broadcasting contractor from transmitting political party broadcasts

100. The Court has been referred to the dictum of Henchy J. in The State (Lynch) v. Cooney 1982 IR 337 , at p.382, to the following effect:-


“It is to be noted that what is permitted by sub-s. 2 of s. 18 (despite the requirement in sub-s. 1, as amended, of fairness, objectivity and impartiality) is political party broadcasts.’ It is a necessary implication of the power thus conferred that it will be exercised in a constitutional manner. For example, if the Authority were to allow one political party to make a political party broadcast while denying that opportunity to any of the other political parties

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contesting the election, any one of those excluded political parties could complain of unfair discrimination contrary to Article 40, s.1, of the Constitution, unless the exclusion could be justified under that constitutional provision. One of the grounds of justification would be that the Minister had made an order under s. 31, sub-s. 1, of the Act of 1960 in respect of the excluded political party “.

101. It is important to note that Henchy J. regarded party political broadcasts as an exception to sub-section (1) of Section 18 as amended. The constitutional fairness he refers to is fairness as between political parties. The broadcasts are an exception to the requirements of Section 18 sub-section (1) but are nevertheless caught by the Constitution itself which requires that equals be treated equally.


102. It is interesting to note that the Oireachtas seems to have taken up this hint from Henchy J. in Section 9 sub-section (2) of the Radio and Television Act, 1988 the full text which reads as follows:-


“Nothing in subsection 1(a) or (1) (b) shall prevent a sound broadcasting contractor from transmitting political party broadcasts:
Provided that a sound broadcasting contractor shall not, in the

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allocation of time for such broadcasts, give an unfair preference to any political party “.

(2) Political Parties.

103. Political Parties are not expressly mentioned in the Constitution though some might argue that their fingerprints are to be seen in many places in it. The right to form associations guaranteed by Article 40 Section 6 is broad enough to cover political parties but, more important for the purposes of the present discussion, is that Political Parties dominate the scene in all constitutional democracies and, undoubtedly, dominated the political scene in Ireland at the time of the enactment of the Constitution just as they do today. This may explain why the Oireachtas assumed, when it authorised RTE to transmit “Political Party Broadcasts “, that RTE would know what Political Parties were. In 1960 the concept of the “registered Political Party’s did not yet exist and, in the absence of a statutory definition of “Political Party” RTE had to make up its own mind as to the distinction between Political Parties and other forms of voluntary association. It did this. No-one has suggested that its decision on this matter was wrong and the matter is not before this Court. But the fact that the Oireachtas assumed that everybody knows what a Political Party is serves to emphasise the position of Political Parties in Irish life.


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(3) “Uncontested broadcasts ”.

104. It may be convenient, for administrative reasons to divide the broadcasts made during the referendum campaign into “contested” and “uncontested” broadcasts. But legally there were three different kinds of broadcasts and the administrative classification may be misleading. 98% of the broadcasts were transmitted pursuant to the provisions of Section 18 s.s. (1) (as amended) and were monitored by RTE pursuant to the provisions of Section 18 s.s. (1) paragraph (B). These broadcasts presumably took the form of debates or discussions between a number of people who took different views on the merits or demerits of the proposal being placed before the people at the Referendum.


105. But referenda are also likely to give rise to, or to enhance the profile of ad hoc groups or associations whose objective is to advance or defeat the proposal contained in the Referendum. It is clearly proper that such groups of citizens should be given an opportunity, if practicable, to use the national airwaves to place their views before their fellow citizens. RTE is competent to identify such groups and give them a hearing. It has done so in the present case. No-one has challenged the decision and, again, there is no issue on this matter before the Court.


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106. RTE may well have imagined that the most practicable way of dealing with such associations was to allow each side an uninterrupted period of time to state its case in a single programme to be balanced, shortly afterwards, by a similar programme allowed to the other side. In doing this RTE was presumably acting under the last paragraph of Section 1 of Section 18 of the 1960 Act (as amended) which provides as follows:-


“Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period”.

107. I doubt if it is helpful to refer to such broadcasts as “uncontested” broadcasts. The distinguishing feature of such broadcasts is that each side is given an uninterrupted opportunity to state its case but the two broadcasts are regarded as balancing each other out and as being, in effect, one balanced broadcast.


(4) Political Party Broadcasts.

108. Political Party broadcasts are in a totally different position. Of course they must not break the law or advocate the overthrow of the State. But apart from this RTE is not entitled to concern itself with their content. The


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politicians are entitled to use all the arts of advocacy to persuade the citizens of the correctness of their proposals. RTE is not entitled to interfere in the debate or to come between the politicians and the voters. It cannot say to a Party that because one of its opponents said X that it must say Y. And just as it cannot interfere in the debate between politicians it cannot interfere to negative the collective advice of the politicians to the electorate. The fact that all the political parties are agreed on a particular aspect of national policy may be a political fact of the utmost importance. One thinks for instance of the outbreak of the Second World War when all the political parties agreed on the policy of neutrality. The section rightly provides that RTE, as the principal broadcasting corporation in the State, should hold the scales equally between citizens and groups of citizens who wish to debate the merits and demerits of a referendum proposal. But political parties, as Henchy J. recognised, are in a different category and for RTE - simply because the political parties were agreed on the policy to follow - to set up further broadcasts to contradict the advice of the political parties would be to abandon its role as a neutral institution and to descend into the political arena.

109. It may well be that RTE is under a constitutional obligation to observe some kind of proportionality in the amount of time it allots to the private citizens collectively on the one hand and to the political parties on the other. In


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the present case it allotted approximately 98’,4% of the time to monitored broadcasts between private citizens or private associations of citizens and something approximating to 1 ‘A% of the time to the political parties. No-one could say that this constituted a disproportionate bias in favour of political parties and no-one has.

THE REFERENDUM.

110. The Referendum can be used in different countries for different purposes. At the top of the scale it may amount to the ultimate act of sovereignty. At the bottom of the scale it may amount to no more than a glorified public opinion poll. For that reason if one is citing foreign authorities one needs to know the place of the Referendum in their constitutional set up and the terms of the Statute under which the Referendum is being held.


111. For instance the Plaintiff/Respondent in the present case relied heavily on dicta of Lord Ross in Wilson v. Independent Broadcasting Authority 1979 SC 351 . In particular he relied on a passage which appears at pp 358 359 of the Judgment:-


“I accept that, when arranging party political broadcasts in connection with a General Election, all possible political viewpoints cannot be covered and, for example, some participants in a General

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Election and some minor parties may be excluded (see Grieve v. Douglas-Home 19655. C. 315 at page 338 per Lord Kilbrandon). But the situation is different with a Referendum where the electorate is being invited to answer a question ‘Yes’ or ‘No.’ Where the subject matter of programmes being broadcast is the Referendum, I am of opinion that a proper balance must be maintained between programmes favouring ‘Yes’ and programmes favouring ‘No.’ It is plain from both the petition and the answers that the party political broadcasts with which the petitioners are concerned are not normal party political broadcasts but are to be devoted specifically to the issue to be put to the electorate in the Referendum. This puts them in a special category and they cannot be treated as if they were ordinary political broadcasts “.

112. Further down the page he says:


“The question then is whether the petitioners have averred a prima facie case of failure to maintain a proper balance in programmes on the Referendum and in particular as regards the four party political broadcasts which have been arranged.

So far as the party political broadcasts are concerned, the respondents found strongly on the fact that party political broadcasts are agreed with the four major political parties. They aver that the

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allocation of party political broadcasts is reached based in principle upon the votes cast for each political party in the last General Election. That may be all right when voting in Parliamentary and local government elections is concerned, but I do not see how that basis can be regarded as appropriate for allocating broadcasting time for broadcasts directed to persuading viewers and listeners how to vote in the Referendum. To take the extreme case, if all four parties favoured ‘Yes, ‘could it be suggested that no broadcasting time should be allocated to advocates of ‘No’? As things stand it is not disputed by the respondents that of the four party political broadcasts arranged, three will be directed to persuading viewers and listeners to vote ‘Yes’ and only one will be directed to persuading viewers and listeners to vote ‘No.’ By no stretch of the imagination can that be regarded as maintaining a proper balance. I therefore conclude that prima facie the respondents have failed to ensure that the Referendum broadcasts maintain a proper balance on this subject. The suggestion in answer 4 that the eve of poll broadcast favouring ‘No’ will provide a balance to the three previous broadcasts favouring ‘Yes’ when stated can be seen as in fact demonstrating a lack of proper balance”.

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113. A number of comments must however be made on this Judgment. First, the Judgment was merely an interlocutory Judgment. The Court merely found that there had been a prima facie breach of the relevant Statute and issued an interdict on the balance of convenience. Secondly, the wording of the relevant Statute was different. While under Section 2 (ii) (b) of the Statute (The Independent Broadcasting Act, 1973) the Authority was obliged to maintain “a proper balance” in its broadcasts, there was no special provision for Party Political broadcasts. Thirdly, the row appears to have been between the Labour Party (which was advocating a “ no” in the Referendum and three other Parties all of which were advocating a “ yes” .) Fourthly, the Court was construing an Act of Parliament the words of which were comparatively straightforward. It was not dealing with an exercise of sovereign power which, in the United Kingdom, is reserved to Parliament. I shall return to this subject later.


THE ARTICLE 27.

114. The Referendum is used for two different purposes under the Irish Constitution. The first arises under Articles 27 and 47 which contain procedure for referring bills to the people. While this procedure has never been used it does cast light on the respective powers of the institutions of Government established by the Constitution.


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115. Article 27 applies to any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of the Constitution, which has been deemed, by virtue of Article 23 of the Constitution, to have been passed by both Houses of the Oireachtas.


116. In such an event a majority of the members of Seanad Éireann and not less than one third of the members of Dáil Éireann may, by a joint petition addressed to the President, request the President to decline to sign and promulgate the Bill as law on the basis that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained.


117. In normal circumstances since the Government will have been elected by the Party or combination of Parties which controls the majority in Dáil Éireann and since the Opposition Party or combination of Parties will usually control at least one third of the members of Dáil Éireann, this refers to a Bill which shall have been carried by the Government over the heads of the opposition and a majority in Seanad Éireann. If the Opposition can muster a majority of the Senate and at least a third of the members of Dáil Éireann it may present a Petition to the President who, after consultation with the Council of State, may decline to sign and promulgate the Bill as law unless and until the will of the people thereon shall have been sought in the manner required by Article 27.


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118. One way of seeking the will of the people is to submit the Bill to a Referendum in accordance with the provisions of Section 2 of Article 47 of the Constitution. In such a Referendum such a Bill shall be held to have been vetoed by the people if a majority of the votes cast at the Referendum shall have been against its enactment into law and “if the votes so cast against its enactment into law shall have amounted to not less than thirty-three and one-third per cent of the voters on the register


119. So the Bill will not be defeated unless a majority of the voters vote against it and this majority comprises at least one third of the voters on the register.


120. In other words a majority in Dáil Éireann can override the Opposition in the Dáil, a majority of the Senate and a majority of those who actually vote in the Referendum unless that majority comprises at least one third of the voters on the register.


121. These facts bear testimony to the position of the directly elected leaders of the people under our constitutional dispensation.


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AMENDING THE CONSTITUTION.

122. The Applicant draws a distinction between the role of political parties in a General Election and the role of political parties in a Referendum to amend the Constitution. In a General Election the political parties are fighting for power and it is appropriate, in that situation, to allow them to make party political broadcasts. But in the case of a Referendum, the Applicant submits, the citizens are making up their own minds on the merits or demerits of the Referendum proposal. It is a form of direct democracy and the role of the political parties is not significant. Indeed the members of political parties may be divided among themselves on the merits of the Referendum proposal and the views of the leadership and the official policy of a party may not reflect the opinions of the rank and file membership or even of the majority of them.


123. But this is an oversimplification. It is the same democratic community which is making the decision in both cases. In one case it is selecting its leaders. In the other it is making a decision concerning the common good. It would be a very poor democracy in which political parties had a role to play in the struggle for power but nothing to offer concerning the common good.


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124. The preamble to the Constitution described the people as having adopted the Constitution “seeking to promote the common good, with due observance of Prudence, Justice and Charity....”


125. Article 6 describes all powers of Government, legislative, executive and judicial as deriving, under God from the people “whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good”.


In Hanafin v. Minister for the Environment [1996] 2 IR 321, at page 422, the Chief Justice adopted the following statement of Barr J describing the conduct of a Referendum:-

“The submission to the people of a proposal to amend the Constitution must of necessity be made in a manner which has regard to the democratic process and the constitutional rights of the citizens to participate therein and in particular must have regard to the right of the people to be informed with regard to the nature of the issue involved and its implications; the right of freedom of discussion thereon; the right of people to persuade and to be persuaded; the right of people to campaign, either individually or in association, in favour of or against the proposal; the right of the people to vote

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thereon in the secrecy of the ballot and to have the proposal enacted into law if the majority of the votes cast shall have been cast in favour of the proposal.

The fact is that, under our Constitution, a Referendum to amend the Constitution is not a mere public opinion poll. It is the ultimate act of sovereignty. The people are not debating the abstract merits of some particular proposition. They are making a political decision. They are deciding whether the common good would best be promoted by adopting or rejecting the proposal contained in the Referendum Bill.

The people are the ultimate sovereign but there is no constitutional device which will ensure that their ultimate decision will be infallible or even that it will be prudent just or wise. The most we can hope for in relation to any sovereign, including the sovereign people, is that before making its decision it will be well informed and well advised. In this context to play down, or neutralise, the role of political leaders in favour of committed amateurs would be, to say the least, unwise.

An Act of Sovereignty is the ultimate political act. It is not simply a decision on the merits or even the morality of a particular proposal. It is a

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decision as to whether the adoption or the rejection of the Referendum proposal is best calculated to promote the common good. The decision before the people in the Referendum under discussion was a decision on whether or not to introduce the institution of divorce. This was a classic example of the kind of proposal which raises complex questions touching religion, morality, economics, family life and many other matters. It is the classic kind of situation where a citizen might himself be opposed to divorce for religious or moral reasons but might, for political reasons and having regard to the actual conditions prevailing in society, consider that the common good would be more likely to be promoted by permitting divorce than by banning it. This kind of complex decision the sovereign people have, in our Constitution, reserved to themselves expressing the hope that they will “ promote the common good, with due observance or Prudence, Justice and Charity “.

126. If they are to do this they must be, as previously indicated, well informed and well advised.


127. RTE can help to ensure that the people are well informed by upholding “the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression “. It can do this by allowing equal access to the airwaves by those who favour and by those who oppose the Referendum


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proposal and also by ensuring equal access to ad hoc groups which support the Referendum proposal and by ad hoc groups which oppose it. It may also be legitimate for the Government to provide equal finance for groups supporting as for groups opposing the Referendum proposal. It may also be appropriate for the Government to establish a neutral commission to ensure that the case for and against the Referendum proposal is fairly stated.

128. But when it comes to advising the people on a major political decision the principal role must rest with their political leaders. A distinguishing feature of a democratic society is that political leadership rests, not on power, but on persuasion. Likewise political authority rests on the consent of the electorate. It is right and appropriate that political leaders should use their authority and the arts of persuasion to lead the people towards the decision which their judgment tells them will best promote the common good. For RTE to attempt to neutralise the advice of political leaders would be to subvert the democratic values which it is directed to uphold.


129. It has been pointed out in the course of the debate that RTE is entitled but not obliged to transmit political party broadcasts. But it appears to me that this discretion, like all administrative discretions, is to be exercised in an appropriate case. Radio and television play a major role in our modern


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democratic society and it appears to me that a decision by RTE to deny political parties access to the airwaves at a time when the people were deliberating on a major act of sovereignty would be of doubtful legality.

CONSTITUTIONAL FAIRNESS.

130. The learned trial Judge appears to have been influenced in his decision by the Judgment of Lord Ross in Wilson v. Independent Broadcasting Authority 1979 SC 351 (referred to earlier in this Judgment) and also by his concept of constitutional fairness.


131. In a key sentence which appears at page 19 of his unreported Judgment the learned trial Judge says:-


“I am satisfied that RTE ‘s said approach has resulted in inequality amounting to unconstitutional fairness which would not have arisen had their starting point been to afford equality to each side of the argument to which there could only be a Yes and No answer.”

132. But as previously pointed out Lord Ross was construing a differently worded statute under a different Constitution. Besides the equality referred to in Article 40 of the Irish Constitution is an equality of persons not an equality


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of ideas. Ideas have no rights under our Constitution or otherwise because rights (including political rights) pertain to persons not to ideas.

133. Article 40.1 of the Constitution accordingly provides as follows:-


1. “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function “.

134. As Walsh, J., speaking for the Supreme Court, in The State [Nicolaou] v. An Bord Uchtála [1966] IR 567 at page 639 said:-


“In the opinion of the Court section 1 of Article 40 is not to be read as a guarantee or undertaking that all citizens shall be treated by the law as equal for all purposes, but rather as an acknowledgment of the human equality of all citizens and that such equality will be recognised in the laws of the State. The section itself in its [second sentence] is a recognition that inequality may or must result from some special abilities or from some deficiency or from some special need and it is clear that the Article does not either envisage or guarantee equal measure in all things to all citizens. To do so regardless of the factors mentioned would be inequality.”

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135. The Constitution contemplates a community of citizens living together in a democratic society. It lays down that all citizens are, as human persons, to be held equal before the law. But at the same time it recognises that citizens may have differences of capacity physical and moral and that they may, by virtue of their office or otherwise have different social functions to fulfil. It is against this concept of equality that the legislation in question is to be understood. When the people are performing the ultimate act of sovereignty it is clearly right and proper that the views of all citizens should, so far as practicable, be heard. But it is also right and proper that the special position of political leaders should be recognised. In my view there is, in principle, no constitutional inequality or unfairness and no breach of democratic values in allowing political leaders access to the airwaves at referendum time on conditions dissimilar to those granted to private citizens but related to their social function as political leaders of the people.


136. I would allow the appeal by RTE and discharge the Order of the learned High Court Judge.


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THE SUPREME COURT
Hamilton, C.J.
Denham, J.
Barrington, J.
Keane, J.
Barron, J.
142 & 148/98
BETWEEN
ANTHONY COUGHLAN
Applicant/Respondent
AND

THE BROADCASTING COMPLAINTS COMMISSION AND RADIO TELEFÍS ÉIREANN
Respondents/Appellants
AND

THE ATTORNEY GENERAL
Notice Party

JUDGMENT delivered the 26th January, 2000 by Keane, J.

137. The second named Respondent (hereafter “RTE”) and their predecessor enjoyed a statutory monopoly in broadcasting in Ireland from the enactment of the Wireless Telegraphy Act, 1926 until 1988. The Radio and Television Act of that year for the first time provided for competition in broadcasting with


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138. RTE at both the national and local level. It remains in a unique position, however, as a comprehensive national broadcasting organisation established and maintained by the State which receives a substantial annual subsidy in the form of the net proceeds of the television licence fees collected by An Post.


139. It is obviously important that so powerful a broadcasting medium should fairly reflect, so far as is practicable, the wide diversity of interests and views which one would expect to find competing for attention in a truly pluralist and democratic society. The Oireachtas has over the years laid increasing emphasis on the responsibilities of RTE in this area. Included in the measures intended to ensure an even handed approach by RTE was the establishment in 1976 of the first named Respondents (hereafter “the BCC”) whose principal function was to investigate and rule on complaints that RTE had not complied with their statutory duties in this area. (The Independent Radio and Television Commission established in 1988 performs a similar function in the case of the additional television and radio stations established under the Radio and Television Act, 1988.)


140. The applicant in these proceedings, who is a lecturer in social policy in Trinity College, Dublin, was of the view that RTE were in breach of their statutory responsibilities during the campaign which led to the constitutional referendum on divorce in November 1995. He had no complaint as to the general coverage by RTE in its news and current affairs programmes of the


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topic: his concern arises from the allocation by them of time for party political broadcasts. The five largest political parties represented in Dáil Eireann were allowed to make such broadcasts and the allocation to them of broadcasting time was determined by reference to their numerical strength in the Dáil. In addition, similar facilities were allocated to groups campaigning respectively for a “yes” and “no” vote. Since all five of the political parties were campaigning for a “yes” vote, the result was that 40 minutes of broadcasting time was allocated to those campaigning for a “yes” vote and 10 minutes to those advocating a “no” vote.

141. The applicant lodged a complaint with the BCC that this imbalance was in breach of the obligation of RTE to maintain impartiality and objectivity, particularly having regard to the majority judgments of this court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10 which had been delivered during the course of the referendum campaign. The BCC initially were of the view that the applicant’s complaint did not fall within their statutory remit: ultimately, however, they decided to adjudicate upon it and, in the event, rejected the applicant’s complaint. He then instituted these proceedings claiming inter alia an order of certiorari quashing the decision of the BCC and a declaration that the allocation of the party political broadcasts was significantly unequal and, as a result, constitutionally unfair. The Attorney General was joined as a notice party to the proceedings. Statements of Opposition having been filed on behalf


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of the BCC and RTE, the case came on for hearing before Carney J. In a reserved judgment delivered on the 24th April 1998, he upheld the applicant’s claim, quashed the decision of the BCC and granted the declaration sought. From that decision the BCC and RTE now appeal to this court.

142. At the outset of the first hearing of the appeal, members of the court pointed out that, since the remit of the BCC was confined to adjudicating on a complaint and transmitting their decision, together with the reaction of RTE thereto, to the Oireachtas in its annual report, it did not appear that his rights would be affected in any way even were they to exercise their powers, as he claimed they did, on an erroneous view of the law and that, accordingly, their actions might not be amenable to judicial review. Such a case did not appear to have been pressed to any extent in the High Court and was not dealt with in the judgment under appeal. However, since it was accepted by all the parties that the central issue in the case was as to whether the declaration already referred to was properly granted as against RTE, it was clear that no useful purpose would be served by remitting the action to the High Court for a new hearing on the question as to whether the determination by the BCC was amenable to judicial review.


143. The Broadcasting Authority Act, 1960 (hereafter “the 1960 Act”) brought RTE into being and provided that it should establish and maintain a national television and sound broadcasting service. Section 18 provided that:-


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“(1) It shall be the duty of [RTE] to secure that, when it broadcasts any information, news or feature which relates to matters of public controversy or is the subject of current public debate, the information, news or feature is presented objectively and impartially and without any expression of [RTE’s] own views.

(2) Nothing in this section shall prevent [RTE] from transmitting political party broadcasts.”

Section 3 of the Broadcasting Authority (Amendment) Act, 1976 (hereafter “the 1976 Act”) provided for the amendment of the 1960 Act by the substitution of the following subsections for s. 18(1):-

“(1) Subject to subsection [lA] of this section, it shall be the duty of [RTE] to ensure that -

(a) all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of [RTE’s] own views,

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(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair. to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of[RTE’s] own views,

(c) any matter whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed or sold by [RTE] is presented by it in an objective and impartial manner.

Paragraph (b) of this subsection, in so far as it requires [RTE] not to express its own views, shall not apply to any broadcast in so far as the broadcast relates to any proposal, being a proposal concerning policy as regards broadcasting, which is of public controversy or the subject of current public debate and which is

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being considered by the Government or the Minister [for the Arts, Heritage, Gaeltacht and the Islands].

Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period

[1A] [RTE] is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

[1B] [RTE] shall not, in its programmes and in the means employed to make such programmes, unreasonably encroach on the privacy of an individual.”

Section 17 of the 1960 Act, as substituted by section 13 of the 1976 Act provides inter alia that:-


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“In performing its functions [RTE] shall in its programming -

(b) uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression...”

144. It was held by this court in McKenna (No. 2) v. An Taoiseach that the expenditure by the Government of monies voted by Dáil Éireann for a publicity campaign to encourage a “yes” vote in the divorce referendum in 1995 was unlawful having regard to the provisions of the Constitution. In his judgment in the present case, Carney J. concluded that:-


“In my view a package of uncontested or partisan broadcasts by the National Broadcasting Service weighted on one side of the argument is an interference with the referendum process of a kind contemplated by Hamilton CJ in McKenna (No. 2) v. An Taoiseach] , as undemocratic and is a constitutionally unfair procedure.”

145. The wording of s.18 (2) of the 1960 Act confers statutory recognition on the practice which had been established before its enactment of transmitting


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what are described as “political party broadcasts”. They took the form of broadcasts, made usually, but not exclusively, during general election campaigns, on behalf of the political parties contesting the campaign, the editorial content of which was solely determined by the political party making the particular broadcast, and which were allotted to the political parties in proportion to their numerical strength in the Dáil. The saving proviso in subsection (2) was clearly considered necessary by the Oireachtas in view of the requirement in subsection (1) of the section as originally enacted that broadcasts on matters of public controversy or subjects of current public debate should be presented “objectively and impartially”. Manifestly, the typical political party broadcast could not be expected to meet that requirement.

146. As was pointed out by Walsh J. in The State. (Lynch) v. Cooney [1982] IR 337 :-


“[RTE] is under no statutory, or other, obligation to transmit political broadcasts but is entitled to do so.”

147. It is also clear from the judgments in that case that the sole obligation on RTE is to ensure that the power to permit such broadcasts is exercised in a constitutional manner: in particular, the allocation of time to political parties


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for the purpose of making such broadcasts must not unfairly discriminate between parties in breach of Article 40.1 of the Constitution.

148. The legislation itself offers no guidance as to what is meant by the expression “political party broadcasts”, although it obviously extended at least to the broadcasts by political parties which were made on sound radio prior to the enactment of the 1960 Act and to which I have already referred. In particular, there is no definition of a “political party” or the criteria which RTE were required to apply in determining whether any grouping constituted a “political party”. (It may be noted, in passing, that it was not until 1963 that legislation providing for the registration of political parties appeared for the first time on the statute book in the form of the Electoral Act, 1963.)


149. In an affidavit sworn in these proceedings, Mr. Tony Fahy, the secretary of a steering group convened by RTE to monitor and supervise its broadcast coverage of the divorce referendum in November 1995 (and also the bail referendum in 1996), said that that group had first been convened in 1977. He said that the approach of RTE to what was described as “general news coverage and current affairs programmes” over which RTE has editorial control differs from its approach to what he described as “special uncontested broadcasts” over which they exercised no editorial control, save to ensure that there was no breach of any law by which RTE was bound. In the first category, it was sought to ensure, as far as possible, an even handed approach so that those


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advocating a “yes” vote were given approximately the same air time as those advocating a “no”. As already noted, the applicant has made no complaint as to the manner in which RTE dealt with the general news coverage and current affairs programmes during the campaign leading to the divorce referendum in November 1995.

150. Mr. Fahy described the “special uncontested broadcasts” as follows:-


“Traditionally, these comprise Political Party Broadcasts an (sic) in recent referenda, broadcasts from identifiable groups campaigning for ‘Yes’ or ‘No’ vote in the particular referendum.”

151. He went on to explain RTE’s policy as follows:-


“It has been a constant feature of recent referenda campaigns, with the exception of the relatively uncontraversial (sic) referenda an (sic) Adoption and University Seats, that RTE has allocated Political Party Broadcasts. RTE has taken the view and continues to take the view that those parties with a minimum number of elected Dáil representatives evidence sufficient democratic mandate to be provided with air time to transmit their views on the issues raised by the particular referendum campaign both to their

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own supporters and to the electorate in general. Likewise, RTE takes the view that the electorate in general have an entitlement to hear the views of the political parties with a minimum number of democratically elected representatives on the issues raised in the referendum campaign. The air time allocated to the different political parties is done upon the basis of well established guidelines drawn up by RTE and which appear to have gained general acceptance amongst political parties.”

152. As to groups other than political parties, Mr. Fahy said:-


“Since 1983, RTE have also allocated time for uncontested broadcasts to identifiable groups, other than political parties, who are campaigning for a ‘Yes’ or ‘Not vote in the particular referendum. The number of broadcasts allocated to any such group and the time given them depends upon an assessment of what would be fair to all such interests having regard to the particular circumstances of any one referendum... In the Divorce Referendum Campaign, RTE allocated two special broadcasts to those groups advocating a ‘Yes’ and two special broadcasts to those advocating a ‘Nod vote.”

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153. The statutory basis for permitting what have come to be described as “special uncontested broadcasts” to identifiable groups, other than political parties, advocating a “yes” or “no” vote in referenda is not clear. However the expression “political party broadcasts” in s.18(2) of the 1960 Act is to be construed, it must, at the minimum, be confined to bodies which in the ordinary use of language would be described as “political parties”, i.e. groups who put forward candidates for election at general, local or European elections and who almost invariably do so on the basis that their candidates, if elected, will seek to have implemented particular policies. It is, of course, possible for “single issue” parties to be formed and contest elections and it may be that, depending on the criteria adopted, RTE would be entitled to allot them time for a special uncontested broadcast, provided that the criteria chosen did not unfairly discriminate between political parties. Thus, under the existing guidelines for general election broadcasts, any group putting forward at least seven candidates standing on a common policy platform is regarded as qualified to make a political party broadcast.


154. An organised group which is advocating a “yes” vote or a “no” vote during the course of a referendum campaign may or may not be a “political party” within the meaning of s.18(2). If it is not a political party, it does not come within the saving provisions of s.18(2) and such broadcasts can be legitimately transmitted by RTE only if they can be regarded as “fair to all


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interests concerned” and “presented in an objective and impartial manner”. Since such uncontested broadcasts, of their nature, will be unlikely to meet those criteria, and since they are not within the saving provisions of subsection (2), it appears to me that their transmission by RTE is difficult to reconcile with the provisions of s.18(1). There is of course no difficulty in inviting representatives of such groups to participate in news, and or other current affairs programmes on a balanced basis during the course of the campaign. But that is not to say that they should be accorded the privilege, denied to other citizens, of being allotted time for uncontested broadcasts to present a particular partisan view as to how people should vote in a referendum, a concession reserved exclusively by s.18(2) to political parties. That apparent inconsistency with the requirements of s.18(1) is hardly eliminated by allotting the broadcasts on an equal basis between the “yes” supporters and the “no” supporters: experience suggests that in at least some referenda campaigns there are significant sections of the community who may feel that their views are not represented by bodies at either end of the spectrum. The view of RTE that political parties should be allotted uncontested broadcasts in proportion to their representation in the Dáil during referendum campaigns is understandable. In the present case, however, because of the fact, obviously known to RTE, that each of them had supported the legislation providing for the amendment to the Constitution in the Dáil, allotting them such broadcasts resulted in all of that time being taken

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up the presentation of the “yes” point of view, the only counterbalance to this being provided by the two uncontested broadcasts of dubious legality in support of the “no” campaign.

155. When the applicant originally made his complaint, RTE adopted the position that subsection (1) had no application to political party broadcasts which they allocated in pursuance of the power recognised by subsection (2). That, however, was a misinterpretation of the provisions of the 1960 Act as amended by the 1976 Act. It cannot have been the, intention of the Oireachtas that political party broadcasts transmitted under subsection (2) would be wholly unaffected by the provisions of s.18(1): that would have the result that such broadcasts could include material promoting or inciting crime or undermining the authority of the State. Undoubtedly, the political parties in deciding on the contents of such broadcasts were freed from the constraint of being “fair to all interests concerned” and “objective and impartial”. But RTE themselves remained under that obligation when it came to allocate uncontested broadcasts in purported reliance on subsection (2) and, apart from the constitutional obligation not to discriminate unfairly between the political parties identified in The State (Lynch) v. Cooney were also under an express statutory obligation to that effect.


156. On the second hearing of the appeal to this court, Mr. Donal O’Donnell, SC, on behalf of the applicant, submitted that, since the decision of the BCC in


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effect adopted as correct the submission then being made on behalf of RTE that subsection (1) had no application to political party broadcasts, the decision of the BCC was fatally flawed and that, of itself, entitled the applicant to the relief which he had claimed and been granted in the High Court and that it followed that, on that ground alone, the appeal of both the BCC and RTE must fail. However, were this court to adopt that approach, it would be disregarding the fact that the parties, at the opening of the first appeal, agreed that the court should proceed to determine whether the second relief granted in the High Court i.e. the declaration that RTE had acted unlawfully in the allocation of the political party broadcasts, should have been granted,. irrespective of whether the High Court was also correct in granting an order of certiorari quashing the decision of the BCC. I do not think that this court should now depart from that approach. It should be added that, in any event, it is by no means clear that the BCC, in adjudicating on the complaint, did so solely on the basis of the mistaken view of the law advanced by RTE.

157. In their submission to this court, RTE accepted that, in allocating time for political party broadcasts, they were obliged by the terms of subsection (1) to be “fair to all interests concerned” and “objective and impartial”. But they also urged that, in this case, those constraints had been observed. Being fair to all interests concerned, it was said, necessitated having regard to the democratic mandate of the political parties and the entitlement of the citizens as voters to


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be informed of their views on the forthcoming referendum. In any event, it was said, the political party broadcast represented only a minuscule fraction -approximately 2% - of the entire time allocated by RTE to covering the referendum campaign, the coverage of which, it was conceded, was impartial, objective and fair to all interests concerned in all other respects.

158. I have no doubt that the Constitution envisaged that political parties would play a role of fundamental importance in the process of amending the Constitution by means of a referendum. The fact that political parties are not expressly mentioned in the Constitution is not of the slightest significance in this context. The framers of the Constitution in 1937 might have put before the people a constitutional framework in which the initiative for constitutional change rested, to at least some extent, with the people themselves. However, far from preserving the popular initiative which had been a feature of the Constitution of the Irish Free State as originally enacted - and which is to be found in other jurisdictions such as Switzerland - the Constitution provides one method only of amending the Constitution, i.e. by legislation enacted by the Oireachtas. In 1937 as in 1999, political parties were essential to the functioning of a modern democracy and, since the framers in drafting the Constitution and the people in enacting it must be assumed to have lived in the real world, they must also have envisaged that, in practice, a referendum to amend the Constitution could be initiated only by the Government of the day,


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invariably consisting of one or more political parties, or by the opposition

parties or independent deputies or senators with the support of the Government.

159. Political parties are undoubtedly among the “interests concerned” referred to in s.1 8(1)(b) and RTE would not be carrying out their statutory duty if they failed to recognise them as such in the course of a referendum campaign and ensure that their views were given appropriate coverage in the news broadcasts and current affairs programmes transmitted during the course of the campaign.


160. But it does not necessarily follow that political parties are also entitled as of right to be allowed to make party political broadcasts during the course of the referendum campaign. Even in a general election, there is no obligation on RTE to transmit such broadcasts and the situation is no different in the case of referenda: there is even less reason, indeed, for supposing RTE to be under any such obligation in the latter case. Nor is there any substance in the submission that a failure to allow them make such broadcasts is, in some sense, infringing the right of the citizens to know what the views of the political parties are. There are many ways in which the parties can make their views known to the electorate, by posters, advertisements in the print media, delivery of leaflets to houses, canvassing etc. and, in any event, as already pointed out, the fair treatment of the political parties by RTE required by s.18(1)(a) inevitably involves reasonable coverage of their views, whether by the reporting of


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speeches or the presence of representatives of the parties in current affairs programmes during the course of the referendum campaign.

161. As to the relatively small period of time allotted to party political broadcasts during the course of the divorce referendum in comparison with the extensive coverage of the campaign in the news and current affairs programmes, this cannot, in my view, be a decisive factor when it comes to considering the legality of RTE’s action in allotting the party political broadcasts as they did. If the legal validity of allotting uncontested broadcasts to the political parties depends on the proportion that they bear, in terms of broadcasting time, to the general coverage, neither the legislation nor the submissions in this case offer any guidance as to how, or by whom, it is to be determined in any particular campaign whether the point has been reached at which the time allotted is disproportionate. Either RTE were lawfully entitled to allot political party broadcasts in the way they did or they were not. If they were not, the illegality can hardly be regarded as cured, because of what is said to be the relatively small amount of time devoted to the broadcasts in question. There is also, of course, the further consideration that such broadcasts were in a wholly different category from other programmes in which the referendum campaign was covered, since the party or group afforded the facility was enabled to present a particular partisan point of view without opposition from any one else and in a form totally determined by the party or group itself. It is


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also not in dispute that the impugned broadcasts were transmitted at peak viewing times throughout the campaign.

162. It was strenuously contended on behalf of RTE that they had been established by the Oireachtas as an independent statutory body with particular responsibilities in the area of broadcasting, including coverage of referendum campaigns and the allocation of time for political party broadcasts to the different interests concerned. It was urged that, in accordance with the recent jurisprudence of this court, reflected in decisions such as The State (Keegan v. Stardust Victims’ Compensation Tribunal [1986] IR 642 O’Keeffe v. An Bord Pleanála [1993] 1 IR 39 and Henry Denny & Sons (Ireland) Limited t/a Kerry Foods v. The Minister for Social Welfare [1998] 1 IR 34 , the High Court cannot set aside a decision of a competent authority, such as RTE, on a matter within the jurisdiction conferred on them, because the court disagrees with the view of the authority where the decision, although arguably mistaken, is one at which the authority might reasonably have arrived. These are undoubtedly weighty considerations but they have to be viewed in this case in the light of the decision of the majority of this court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10 .


163. In that case, as already noted, it was held that the government were not entitled to make use of funds voted for that purpose by Dáil Eireann to promote


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their view, as a government, that the Constitution should be amended in the manner proposed. In the course of his judgment, Hamilton CJ said:-

“Once the Bill has been submitted for the decision of the People, the People were and are entitled to reach their decision in a free and democratic manner.

“The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a ‘Yes’ vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.”

164. To the same effect is the following passage from the judgment of Blayney J. : -


“The Government has not held the scales equally between those who support and those who oppose the amendment. It has thrown its weight behind those who support it. The Government’s intention, as indicated very clearly in a letter dated the 20th October, 1995, written on the direction of the Minister for Equality and Law Reform to a public relations firm engaged by the

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Department is to spend a sum of over £400,000 in inserting advertisements in the national press and having leaflets printed, the object of which is to advocate a ‘Yes’ vote. If this plan were implemented it would give a very considerable advantage to those who support the amendment as against those who oppose it. The Government would be acting unfairly in the manner in which it was submitting the amendment to the decision of the People.”

165. It is beyond argument in the present case that the allotment by RTE of forty minutes of uncontested broadcasting time to parties and groups in favour of a “yes” vote as against the ten minutes of such time allotted to the “no” vote gave an advantage to those who were campaigning for a “yes” vote as against those who opposed it.


166. As to how considerable that advantage was, in the circumstances of the particular campaign, one cannot say. As it happened, some of the monies voted by the Dáil had already been expended before the judgments of this court were delivered in McKenna (No. 2) and the effect, if any, which they had on the result was the subject of careful judicial evaluation by a divisional court of the High Court (Murphy, Lynch and Barr, J.J.) in subsequent litigation, viz. Hanafin v. The Minister for the Environment & Ors . [1996] 2 IR 321 , in which a petition was presented questioning the result of the referendum on the


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ground that the result had been materially affected by the unlawful expenditure of monies by the Government. The High Court concluded that it had not been so affected and this court declined to interfere with that finding, being satisfied that it was supported by credible evidence. There was no evidence before the High Court as to the effect, if any, of the party political broadcasts in this case on the result and, accordingly, I do not think it is possible to go further than saying, as was indicated in McKenna (No.2) that it was at least capable of affecting the outcome of the referendum and thereby afforded “a considerable advantage”, to use the test invoked by Blayney J, to those campaigning for a “yes” vote.

167. An important feature of the judgments in McKenna (No. 2) and Hanafin must next be considered. It was solely the expenditure by the Government of public funds with a view to influencing the outcome of the referendum which was found to be unlawful. It was made clear in the judgments in both cases that there was nothing to prevent the Government from campaigning, both collectively and as individual ministers, with the .utmost vigour to secure a particular result and that this would inevitably involve the use of Government resources at the expense of the taxpayer. (See in particular the observations of Barrington J. in Hanafin at p.455.) That follows inevitably, in my view, from the central role allotted by the Constitution to the Oireachtas, and by necessary implication the Government, in the referendum process.


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168. The contrast with the position of RTE scarcely requires emphasis. Unlike the Oireachtas and the Government, it is not an organ of the Constitution given a specific and crucial role in the referendum process: it is purely the creature of a statute enacted by the Oireachtas. As RTE, of course, fully accepts, it is precluded from forming any corporate view as to how the people should vote in a referendum. It is enjoined by the terms of the statutes which created RTE to maintain objectivity and impartiality in all matters of public controversy. It would be remarkable if such a body differed from the Oireachtas and the government in enjoying a freedom to interfere with the result of a referendum by allowing political parties and other bodies which supported a particular outcome a considerable advantage in the broadcasting of partisan material over which they had unfettered control, subject only to any relevant laws such as that of defamation. I am satisfied that the High Court judge was correct in holding that the allocation of uncontested broadcasting time in the present case in those circumstances was legally impermissible.


169. I do not overlook the difficulties created for RTE by this state of the law. As was emphasised on their behalf, they have no control over the editorial content of party political broadcasts. Even in circumstances where the opposition parties were advocating a “no” vote and, in the result, any significant imbalance would not normally arise, RTE would be powerless to prevent the transmission of uncontested broadcasts which were, in the event,


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unfairly weighted in favour of a “yes” vote if, for example, one of the parties concerned was to change its collective mind on the relevant issue after the passage of the Bill through the Oireachtas. It may be that, having regard to those circumstances, the present state of the law leaves RTE in the position that they cannot safely transmit party political broadcasts during the course of referendum campaigns as distinct from other campaigns. Whether the difficulties confronting RTE in this area can or should be dealt with by legislation and, if so, how, are not matters for this court.

170. I would dismiss the appeal.


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Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Barron J.
142 & 148/98
THE SUPREME COURT

ANTHONY COUGHLAN
Applicant/Respondent
and

THE BROADCASTING COMPLAINTS COMMISSION AND RADIO TELEFÍS ÉIREANN
Respondents/Appellants
and

THE ATTORNEY GENERAL
Notice Party

JUDGMENT delivered on the 26th day of January 2000 by BARRON J.

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(2)

171. In the course of the divorce referendum, the second-named respondent (RTE) transmitted five party political broadcasts all of which sought from the electorate, i.e. the people, a yes vote. They also transmitted four similar broadcasts, two by bodies which were campaigning for a yes vote and two which were campaigning for a no vote. In all, the time taken by these several broadcasts was divided as to 80 per cent for a yes vote and 20 per cent for a no vote. Such time represented only 2 per cent of all programmes covering the referendum.


172. The applicant complained to the Broadcasting Complaints Commission (BCC) that in allowing this imbalance in single view broadcasts it was in breach of its statutory obligations. This application was rejected by BCC upon the basis that the transmission of the broadcasts concerned was authorised by the provisions of s. 18(2) of the 1960 Act. By implication the BCC regarded the provisions of that


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(3)

subsection as being independent of s. 18(1) and any other provisions of the Act as for example, s. 17 which as presently enacted requires RTE in performing its functions to uphold the democratic values enshrined in the Constitution especially those relating to rightful liberty of expression. The applicant accordingly issued the present proceedings seeking to have his complaint upheld by the courts.

173. The statutory code under which RTE operates in relation to coverage of elections and referenda is contained in the Broadcasting Authority Acts.


S. 18 (1) of the Broadcasting Authority Act, 1960 as enacted by s. 3 of the Broadcasting Authority (Amendment) Act, 1976 50 far as is material is as follows:

“(1) Subject to subsection (1A) of this section - [which is not material to these proceedings] - it shall be the duty of [RTE] to ensure that-

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(4)

(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of [RTE’s] own views.... Should it prove impracticable in a single programme to apply paragraph (b) of this subsection, two or more related broadcasts may be considered as a whole; provided that the broadcasts are transmitted within a reasonable period.”

S. 18(2) of the Broadcasting Authority Act, 1960, provides:

“(2) Nothing in this section shall prevent [RTE] from transmitting political party broadcasts.”

174. What is in issue in this appeal as it was in the High Court (Carney J.) is whether the provisions of s. 18(1) of the 1960 Act as amended may be disregarded in relation to party political broadcasts. The basis of the decision of BCC was that they could be. This was also the view of RTE


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who as can be seen sought to treat such broadcasts and those of bodies campaigning on one side or the other in a separate category from all other broadcasts dealing with the referendum, the latter being conducted in an impartial and balanced manner.

175. Essentially, the answer to the question raised is a matter of statutory interpretation.


176. The obligations imposed upon RTE are set out in the provisions of s. 18(1) to which I have referred. Broadcasts relating to referenda must be fair to all interests concerned. That means they must be fair to all those interested in a yes vote as well as to all those interested in a no vote. So all programmes must contain matter in favour of both sides.


177. Clearly, a party political broadcast by its very nature cannot be fair to all interests concerned since it expresses the view of only one interest and excludes the views of all other interests. Accordingly, to enable RTE


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(6)

to transmit such broadcast, it was necessary to give it an express power to do so: s. 18(2).

178. Since RTE would not have been acting impartially towards all political interests to allow selected political interests to broadcast their views, it worked out a scheme whereby such broadcasts were fair to all political interests. This in itself was an implied admission that s. 18(2) was subject to s. 18(1) and also presumably s. 17.


179. It probably matters little as a matter of construction whether s. 18(2) is taken on its own or in conjunction with s. 18(1). When taken on its own it was operated by RTE in such a manner that it was fair to all political interests. It could hardly have done otherwise, for not to have done so would hardly have been impartial or fair to all concerned. So why not do the same in a referendum? While RTE could say that it was being impartial in relation to the political parties, it would hardly have been fair


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(7)

to all concerned if it had not included broadcasts on behalf of those campaigning for a no vote. But why balance only such bodies rather than the substance of such broadcasts? Also, on what basis did it allow such bodies which were not political parties to give such broadcasts? Obviously, RTE wanted to be impartial and to be fair.

But s. 18(2) cannot in any event be construed on its own. Like any other statutory provision, it must be construed in the context of the statute as a whole and that must include its relationship to s. 18(1).

180. As I have indicated, the need for s. 18(2) was obvious. But that did not alter the obligation of RTE under s. 18(1). In ordinary elections a modus vivendi had been worked out which satisfied the interests concerned, i.e. the political parties. Referenda, however, are different. The contest is not just between political parties. The people do not necessarily split along party political lines. They did not do so in relation to the divorce


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(8)

referendum. That upset the modus vivendi. While it may have satisfied the obligations of RTE in party political elections, it did not include the interests of voting across party political lines in referenda. In my view, for this reason, whatever the content of party political broadcasts, it could neither have been impartial nor fair to those interests and accordingly was in breach of s. 18(1).

181. Nor did RTE improve matters by allowing non-political parties to make similar type broadcasts. First, because they had no power to do so; and secondly, because it did not in fact redress the imbalance in favour of the yes interests.


182. Regard must be had to the paragraph of s. 18(1) commencing “should it prove impracticable”. In my view, this paragraph does not in any way alter RTE’s obligation under s. 18(1) as a whole. Had the Oireachtas intended it to apply to party political broadcasts, it could have


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(9)

done so by deleting s. 18(2). That was not its purpose. Its purpose is to be constructed from the words “impracticable in a single programme”. This suggests editorial difficulties where the programme could comply, but for good reason it would be thought better to have related broadcasts. Such difficulties could never have applied to party political broadcasts because from their nature there could never have been any real question of transmitting them differently.

183. In the result, the proper construction of s. 18 as a whole is that [)imposes a particular obligation on RTE which is not in any way cut by the provisions of s. 18(2). Accordingly, the ruling by BCC was incorrect.


184. Since it was against that ruling that these proceedings were commenced, it is not necessary to consider the constitutional arguments nor whether balance means equality of treatment for each side or only


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dependent on the perceived strength of each side whether measured from past election results, current opinion polls, those actively campaigning or upon any other basis.

185. The question as to when strict scrutiny would justify a lack of apparent equal treatment of the meaning of equal treatment itself should be deferred until such issues are central to the decision of the Court.


186. Finally, it appears that RTE may well have difficulty in justifying transmissions on behalf of bodies campaigning for either a yes vote or a no vote in referenda. I agree that this may well be an area which requires consideration by the Oireachtas.


187. I would dismiss the appeals.


© 2000 Irish Supreme Court


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