Supreme Court of Ireland Decisions

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

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.

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.

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.

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:

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.

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

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.

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.

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:-

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.

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

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:-

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

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.

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:-

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.

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:-

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

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

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

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

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

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.

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

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:-

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

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.

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.

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.

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:

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.

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:

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:

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

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

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.

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.

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.

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.

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.

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.

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:-

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”.

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.

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”

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.

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.

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

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

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:-

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:-

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.

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.

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:-

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.

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

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

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:-

112. Further down the page he says:

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.

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.

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.

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.

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.

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”.

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

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

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:-

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

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

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

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.

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

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

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

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:-

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:-

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

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

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

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

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

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

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

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

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

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

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,

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

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

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

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

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

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.

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,

170. I would dismiss the appeal.

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

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

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

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

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

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

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

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

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.