Uncontested Political Party Broadcasts
during the Divorce Referendum
(The Coughlan case)
- Allocation of free broadcasts by RTE
- Decision of the Broadcasting Complaints Commission, 1997
- The High Court case
- Implications of a decision in the Supreme Court case
- Supreme Court decision, Wednesday 26 January 2000
- Comment by Mr Coughlan, following the decision
- Comment by Donal O'Driscoll, following the decision.
- Political Parties, Elections and Referendums, Bill, (UK) (u/c)
(Ed. note: Emphasis and paragraph numbering added)
1. In the course of the coverage of the divorce referendum, RTE permitted uncontested broadcasting time:Two and a half minutes of the Yes time was stated to have been "accidental".42.5 minutes to the Yes side, and
10 minutes to the No side.
2. Section 18 (1)(b) of the Broadcasting Act, 1960, as amended requires RTE to be impartial and objective in its broadcast treatment of current affairs and matters of public controversy and debate, and fair to all interests concerned. The Section furthermore says that should it prove impracticable to achieve this in a single programme, it may be done in a series of programmes.
Section 18 (2) of the Act says that nothing in the section shall prevent RTE from transmitting political party broadcasts, which of course are partial by their nature.
3. RTE regards Section 18 (2) as a derogation from Section 18 (1), such that in a series of political party broadcasts on a referendum issue, it is not covered by the obligation regarding fairness and impartiality which section 18 (1) requires.
Thus, even though RTE's allocation of political party broadcasts in a referendum can lead to a one-sided and imbalanced coverage of the issue, because of the line-up of the parties at the time, it claims to be acting in accordance with the Act because 18 (2) releases it from its obligations under 18 (1).
4. Mr Coughlan complained of this to the Broadcasting Complaints Commission.
The Commission's decision was that in its opinion, "RTE did not breach its statutory obligations in broadcasting the various political broadcasts".
5. Mr Coughlan sought a Judicial Review in the High Court in June 1997. The Judgment delivered was to the effect that "the allocation of uncontested broadcasting time to each side of the argument was significantly unequal and thereby constitutionally unfair". The judgment was to be as narrowly based as possible.
6. The Judgement was appealed by the BCC and RTE, supported by the Attorney General, to the Supreme Court.
The counsel for the State argued that the High Court's application of the Supreme Court decision in the McKenna case - preventing the Government from using public funds to promote one side in a referendum - had created an impossible situation for RTE, the Referendum Commission and the Government. Counsel for RTE argued that fairness to all interests concerned did not mean granting equal time to both sides in a referendum campaign.
Counsel for Mr Coughlan said the State was seeking to reverse the Supreme Court decision in the McKenna case.
The decision of the Supreme Court will be made known at 10.30 am on Wednesday 26 January.
It may be noted that, in the UK, a new Bill provides for equality of public funding, and access to facilities, to both sides in referendums. In particular, it is proposed to:
1. Oblige broadcasters, in any referendum, to ensure that "each side of the campaign will have equal access to free airtime for referendum broadcasts".(UK) Political Parties, Elections and Referendums Bill (Bill 34)
2. Have a ban on foreign funding of political parties in referendums.
3. Have a cap on the private expenditure of Government and Opposition parties in the House of Commons, and on non-party organisations.
4. Enable an Electoral Commission to give money on an equal basis to designated umbrella campaigning organisations.
What the Irish political parties want, in contrast to this, is a public subsidy in referendums, so that they will not have to spend their own money at all!
Allocation of free broadcasts
in various Irish referenda
Table prepared by Anthony Coughlan
|?||?||1 Yes group, 1 No group
2 broadcasts each
|1984||Voting rights for
|No broadcasts||No broadcasts|
|1987||Single European Act||5 parties; 4 Yes, 1 No
2 broadcasts each party
8 broadcasts Yes v 2 No
(though active groups
existed on each side)
|1992||Maastricht||5 parties; 4 Yes, 1 No
2 broadcasts each party
8 broadcasts Yes v 2 No
(though active groups
existed on each side)
|No broadcasts||No broadcasts
(though active groups
existed on each side)
|1995||Divorce||5 parties: 5 Yes (Note 1)
2 broadcasts each party
30 minutes for Yes
|--||2 Yes groups
2 No groups
2 broadcasts each
Accidental repeat (Note 2)
|1996||Bail||5 Parties: 5 Yes (Note 3)
2 broadcasts each
|10||--||1 No group
|No broadcasts||No broadcasts|
|No broadcasts||No broadcasts|
|1999||Local Government||No broadcasts||No broadcasts|
Notes added by Editor:
1. One political party only, Muintir na hÉireann, was the only party to oppose the Divorce referendum, as a political party. Both uncontested and contested airtime were refused, apart from a 6 minute interview on the day before a High Court challenge. RTE's decision was upheld by the High Court.
RTE successfully contended in another High Court case 3 days later that its policy in favouring the (other) political parties, as against non-party opponents of Divorce for uncontested broadcasts, was "in advancement of the political process". "The questtion of equity was at the heart of RTE's even-handed approach to the Divorce referendum and is, in our view, in full harmony with both the letter and the spirit of the Broadcasting Acts." (RTE).
2. The repeat was stated by RTE to have been "entirely accidental". Any attempt to address the matter by way of a broadcast from the other side "would have compounded the problem", RTE said.
A similar "accidental" repeat occurred during the 1983 Abortion Amendment campaign.
3. Two political parties only, the Green Party and Muintir na hÉireann, opposed the Bail referendum. Both were denied access to uncontested political party broadcasts, while Muintir na hÉireann was denied access also to contested air-time.
End of notes.
Extract from JUDGMENT of
Mr Justice Carney,
24 April 1998:
Extract from page 12
1. Referenda always have two sides, one contending for a YES vote and one contending
for a NO vote. It is accepted by the parties that R.T.E. is free in relation to any referendum to choose not to broadcast any Party Political broadcasts or uncontested referendum broadcasts. It appears to be accepted by the parties that notwithstanding the fact that Section 18(2) of the Broadcasting Authority Act, 1960 refers only to "Party Political Broadcasts" similar uncontested partisan broadcast facilities may be afforded to non-party groups. It also appears to be accepted by Mr. Coughlan that providing there is equality as between the YES and NO sides broadcasts by political parties may form part of the equation.
2. In relation to the affording of such broadcasts and broadcast time, Mr. Coughlan contends that the starting point must be affording equality to each side of the argument namely those contending for a YES vote and those contending for a NO vote. Mr Coughlan does not contend for absolute equality. He does not say that the time afforded to each side must be equal to the second or to the fraction thereof. In this case, of course, the disparity is clear being 42.5 minutes verses 10 minutes. He also accepts that television broadcasting might properly count for more than radio broadcasting and that a prime time slot might properly count for more than a slot at a time when viewing figures are lower. In relation to matters of this kind I would refer to my judgment in Brandon Book Publishers Limited -v- Radio Telefis Eireann 1993 I.L.R.M. page 806, the tenor of which was that in relation to broadcasting decisions, R.T.E. has greater expertise than the High Court and should not be lightly interfered with.
End of p 12
Extract from part page 16, and all pp 17 to p 20:
1. R.T.E 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 democratic values enshrined in the Constitution. 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 C.J. as undemocratic and is a constitutionally unfair procedure.
2. Blayney J. dealt with the holding of the scales unequally and the throwing of weight
behind one side of the argument. At page 50 he said:-
"Has the executive observed fair procedures in submitting the amendment to the decision of the People? In my view it has not. 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 20the October, 1995, written on the direction of the Minister for Equality and Law Reform to a public relations firm engaged by the 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 amendment to the decision of the People".
3. The imbalance in time allocated to each side of the argument in the instant case must lead to the conclusion that the scales were not held equally and that R.T.É's weight was thrown behind one side of the argument.
4. Denham J. said at page 52:-
Right of Equality
Article 40. s. 1 states:-
'All citizens shall, as human persons, be held equal before the law.'
This recognises the equality of citizens. It also requires the organs of government in the execution of their powers to have due regard to the right of equality. The citizen has the right to be treated equally. This includes the concept that in the democratic process, including referenda, neither side of an issue will be favoured, treated unequally, by the government.
While there is no barrier created by the Government to People voting 'NO' in the upcoming referendum, that does not take into account the importance of media and communications in society today. To fund one side of a campaign in a referendum so as to enable media coverage and communications to promote a specific outcome, is to treat unequally those who believe to the contrary whether they may be a majority or a minority. For the Government to fund one side of a campaign is to treat unequally those citizens who hold the opposite view. It is irrelevant what view the Government takes. To fund one side in a national referendum campaign, even if only to partially so fund, is to breach the spirit of equality."
5. The principle enunciated by Denham J. applies equally to partisan broadcasting in respect of which no charge is made.
6. From the Affidavit of Mr Tony Fahy filed on behalf of R.T.É. I am satisfied:-
(a) that R.T.E. did not appreciate sufficiently that constitutional referenda involve direct legislation by the People outside the normal representative political process;
(b) that R.T.E. did not sufficiently appreciate that from the standpoint of the Constitution and the laws, political parties are not de jure involved in the referendum process;
(c) that notwithstanding the foregoing R.T.E.'s guidelines in relation to uncontested
partisan referendum broadcasts refer to them as "party political broadcasts"; and
(d) that R.T.E.'s starting point in relation to the allocation of such broadcasts is and always has been the political parties.
7. I am satisfied that R.T.E.'s said approach has resulted in inequality amounting to unconstitutional 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.
8. I will grant the Applicant 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 thereby constitutionally unfair. For the reasons already mentioned in relation to my reference to my judgment in the Brandon Books case, I want my judgment to be as narrowly based as possible. I will therefore not give any further relief against R.T.E.
9. Leaving aside the accidental repeat broadcast which is no longer in issue the Broadcasting Complaints Commission accepted R.T.E.'s submissions to them and thereby fell into legal error which went beyond error within jurisdiction. In basing their adjudication on a fundamental misapplication of the Constitution and the laws they thereby exceeded their jurisdiction. The Applicant is entitled to an Order of Certiorari quashing their adjudication. Mr. McDowell, S.C. has indicated that he does not seek to have the matter remitted to the Broadcasting Complaints Commission in the parlance of the District Court to enter continuances. There will be no further Order.
Implications of a decision in the Supreme Court case
Mr Coughlan, in a statement in January, 2000, says that if this case were to be lost now and the Supreme Court permited inequality in the allocation of free broadcasting time in referendums, it would open a legal pathway for the Government to allocate public funding on an unequal basis to the political parties on these occasions, so finding a way around the Supreme Court's 1995 McKenna judgement, which forbids the Government spending public money directly to achieve a particular result in a referendum.
There is little doubt, he says, that our larger political parties are anxious to be able to obtain public funding in referendums, and of course in general elections as well.
Comment by Mr Coughlan
Supreme Court decision, Wednesday 26 January 2000
Decision on whether to allow or dismiss the appeal by the Broadcasting Complaints Commission and RTE, supported by the Attorney General, against the decision of Mr Justice Carney in the judicial review of Coughlan v Broadcasting Complaints Commission on 24 April 1998:
following the decision:(From Irish Independent 27 January 2000)Mr Coughlan described the decision as a victory for Irish democracy.Detailed statement issued 10 February 2000:
Had the decision been the other way, it would have opened a legal path to the allocation of public funding to the political parties on an unequal basis. This would have been a far more important matter politically than the party broadcasts.
The judgment does not prevent political party or other uncontested broadcasts, but is does require RTE to act in a balanced way when allocating time.
See also immediately below
A VICTORY FOR IRISH DEMOCRACY
Revised version of the statement issued by Anthony Coughlan, secretary of the National Platform, on 26 January in response to the Supreme Court's judgement of that day rejecting the appeal by RTE and the Broadcasting Complaints Commission, supported by the Attorney General, against the High Court judgement that the 40/10 minutes imbalance in free broadcasting time in the 1995 Divorce referendum was unconstitutional . . .
Excerpts from the Supreme Court judgements in this case:-
Hamilton, J. (Chief justice): 'While this case (i.e. the McKenna case ... A.C.) 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 is based are of general application, being based on the constitutional rights of the citizens and the requirements of fair procedures.'(P.20) ... in deciding to transmit political party broadcasts and all issues 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 (p.25)...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.. 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.' (p.27)
Keane, J (incoming Chief Justice): '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' (p.13)...'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' (P.22)...It would be remarkable if such a body (as RTE ... A.C.) differed from the Oireachtas and the government in enjoying a power 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 defamation.'(p.24)
Barron, J: 'Referenda, however are different. (i.e. from elections. . A.C.) 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 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. 1 8. 1. (of the Broadcasting Act ... A.C.) 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. (P. 8) ... The proper construction of s.18 as a whole is that S.18(1) imposes a particular obligation on RTE which is not in any way cut down by the provisions of s.18(2).' (p.9)
Denham, J.: '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. . .' (p. 7) '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.' (p.9)...'the decision as to whether or not there should be party political broadcasts is for the second named respondent (ie, RTE...AC) 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.'
Statement by Anthony Coughlan
1. The decision of the Supreme Court that RTE acted unconstitutionally in allocating free broadcasting time in a significantly unbalanced way between the Yes and No sides in the 1995 Divorce referendum, as in several other referendums, is a victory for Irish democracy. Although I was not personally involved in the Divorce referendum, similar abuses had occurred in previous referendums in which I was involved, such as various European referenda.
2. This judgement builds on the McKenna judgement which declared it to be unconstitutional of the Government to spend public money in a one-sided fashion in referendums. This practice was first introduced by Mr CJ Haughey's administration in the 1987 Single European Act referendum, and was continued in the various referendums between then and 1995.
If the Supreme Court had found that it was constitutional of RTE to allocate uncontested referendum broadcasts on an unequal basis between the political parties and other groups, such that one side of the Yes/No division could be advantaged over the other by obtaining significantly more free air time, it would have opened a legal path to the allocation of public funding to the political parties on an unequal basis also.
This would have been a way round the Supreme Court judgement in McKenna and would have been a far more important matter than political party broadcasts. It was clear from the submissions to the court by Mr Eoghan Fitzsimons SC, instructed by the Attorney General's office, that this is what elements in the Government wanted, and there is little doubt that Fine Gael and Labour held the same view on it as Fianna Fall.
3. This judgement of the Supreme Court does not prevent political party or other uncontested broadcasts in referendums. What it does do is to require RTE to act constitutionally - that is, fairly - in allocating them on these occasions.
If the political parties are divided on a referendum issue, uncontested party broadcasts are clearly permissible, so long as they are broadly balanced between the Yes and No sides. If the larger political parties are mostly on one side of a particular referendum proposition, so that such balance is impossible, there seems no good reason why RTE should not invite the smaller parties in the Dáil, or the political independents, or indeed registered political parties outside the Dáil, to represent the other viewpoint, if there are political parties holding such. RTE's policy up to now of denying political party broadcasts to smaller Dáil parties such as the Greens or Sinn Fein, seems illogical and unfair.
Alternatively, if a fair balance between Yes and No is impossible between political parties, RTE has the discretion not to transmit any political party broadcasts. Any legal uncertainty regarding the validity of uncontested broadcasts by non- party groups could be overcome by the Oireachtas empowering the Referendum Commission to require such broadcasts to be allocated, for example, to designated umbrella groups in referendums, if such existed.
4. This is in fact the course proposed for future UK referendums by Mr Tony Blair's Government's Political Parties, Elections and Referendums Bill, which, by coincidence, has been going through the House of Commons this past month and will shortly become law.
Such designated umbrella groups could well include political party and non-party interests, as normally exist in contested referendums. They would be likely to reflect as well the divisions within political parties, when these happen to be internally split on a referendum issue. The prospect of receipt of public funding would be a strong incentive for such umbrella groups to come into existence on each side in contested referendums, as happens in Britain, Canada and elsewhere. There is a good argument on general democratic grounds for the Oireachtas to provide for the allocation of public funding and free broadcasting time to appropriate designated umbrella groupings of this kind in this State, if the circumstances of a particular referendum should bring them into being.
5. Britain's Political Parties, Elections and Referendums Bill:
Referendums are different from general elections, which revolve around people choosing public representatives, usually on a party basis, to legislate. In referendums the people themselves are legislating directly. In contested referendums political party members and supporters are divided between Yes and No, just like everyone else. In these circumstances for the Irish political party leaderships and machines to seek public subsidy for themselves, whether in cash or in publicly-financed free broadcasting time, so as to push one side as against the other - or to remain mute while the Government itself used public money in a one-sided and clearly unfair fashion - as happened between 1987 and 1995 - is a comment on theirlack of sensitivity to what a healthy democracy requires. Contrast the attitude of the political party leaderships in the UK. In Britain, in contrast to here, the political parties, far from looking for public subsidy in referendums so that they will have to spend as little as possible of their own money, are agreed that there should be a legal cap on private spending, including spending by political parties!
The British Bill, which is based on the unanimous report of the Neill Committee on Standards in Public Life, provides for equal public funding and equal uncontested broadcast coverage for umbrella groups on both sides in referendums; whereas the 1998 Irish Referendum Act provides for equal expenditure by the Referendum Commission in disseminating the main arguments for Yes and No, as well as factual information on what the referendum is about.
6. In my opinion, the valuable work of the Irish Referendum Commission needs now to be expanded and built upon. I think that it is fair to say that the Referendum Commission has not yet got a fair run in a referendum here, to prove its full potential as a democratic instrument. That work could be significantly enhanced if the Commission were now to be empowered by the Oireachtas, in addition to its existing functions, to allocate public money on an equal basis to representative umbrella campaigning groups, if such existed, on each side in contested referendums, and also to designate such groups for receipt of uncontested broadcasts by RTE and other licensed broadcasters.
Such groups might well encompass political party and non-party bodies, depending on the referendum issue. That would seem to be in accordance with the Constitution as interpreted in the McKenna and Coughlan judgements. Such an addition to the powers of the Referendum Commission should not of course detract from its present powers and duties, which enable the Commission to perform a valuable service for democracy and public political education in disseminating its own material on referendum issues.
7. The British Bill, moreover, bans foreign funding in referendums - something that is surely desirable in the Republic also - as well as imposing the cap on private spending by political parties and non-party bodies mentioned. Current political controversy in Britain has been about the character of this cap; but there is general acceptance by Government and Opposition parties that the principle of equality should govern the allocation of public resources in referendums, whether these be money or free broadcasting time.
8. Thanks to Mr Michael McDowell SC., Mr Donal O'Donnell SC, Mr Paul Callan SC and other counsel:- Today's verdict vindicates the personal judgement of the present Attorney General, Mr Michael McDowell SC, who presented the case on my behalf in the High Court and in the first Supreme Court hearing a year ago, and who had to remove himself from it because of conflict of interest on being appointed Attorney General. He was ably succeeded by Mr Donal O'Donnell SC, who could not have done a better job in his submissions on the second occasion in the Supreme Court, and I wish to express publicly my thanks to both, as 1 do also to my other counsel, Mr Paul Callan SC, Mr Seamus O'Tuathail BL, Dr D. Rossa Phelan BL, and my solicitor, Mr Colm McGeehin of the firm of MacGeehin and Toale.
24 Crawford Avenue, Drumcondra, Dublin 9
Tels: 608 1898 / 830 5792
10 Feb 2000
(Emphasis and parragraph numbering added by Editor)
Comment by Donal O'Driscoll
following the decision:
1. The judgment confirms the McKenna judgment.
2. That the Government should have embarked on this venture at all is a scandal.
The Government, supported by the larger political parties, was not seeking clarification of any agonising point of principle. It was seeking access to the taxpayers pocket, so as to spare their own resources.
And it gambled with taxpayers' money to do so. No expense was spared. Nine barristers plus support staff packed the left-hand side of the court room.
All in an endeavour to prove that equality is not in the best interests of democracy!
3. The cost of this case is unknown, but there is no doubt it must be substantial. It should be recovered from those who expected to gain from it. Together with the £500,000 illegal expenditure still unrecouped following the Divorce referendum.
4. But what is the liklihood of this, when not a penny of the £1/2 m has been recovered? "The victor will not be asked afterward whether he told the truth or not. In starting and waging a war it is not right that matters, but victory"1
5. One would like to enquire as to whether the Government directed the BCC and RTE to undertake this appeal to the Supreme Court, and if so, what was the legal basis for such a direction? It is not to be readily found in the 1960 or 1976 Acts.
And if the BCC and RTE were not so directed, are we going to get any public explanation for the rationale of these bodies for this dubious legal action?
Can it really be the case that no questions can be, or are going to be, asked?
Note added 13 March 2000:Donal O'Driscoll
In the event, no questions have been asked!Notes:Donal O'Driscoll
1. Adolf Hitler, 1939. Quoted by Shirer "The rise and fall of the Third Reich", p 717.End