Green Party v Raidió Teilifís Éireann

• Jurisdiction: Ireland
• Judge: Justice Carroll
• Judgment Date: 24 February 2003
• Neutral Citation: 2003 WJSC-HC 5691
• Court: High Court
• Docket Number: [2003 No. 114 J.R.]
• Date: 24 February 2003

2003 WJSC-HC 5691

THE HIGH COURT

NO. 114/2003JR

GREEN PARTY v. RADIO TELEFIS EIREANN (RTE)

JUDICIAL REVIEW

BETWEEN

THE GREEN PARTY

APPLICANT

AND

RADIO TELEFÍS ÉIREANN

RESPONDENT

Citations:

CONSTITUTION ART 40.1

BROADCASTING ACT 1960 S17

BROADCASTING ACT 1960 S18

BROADCASTING ACT 2001 S28

COUGHLAN V BROADCASTING COMPLAINTS COMMISSION 2000 3 IR 1

BROADCASTING ACT 1960 S18(1)

BROADCASTING AUTHORITY (AMDT) ACT 1976 S3

BROADCASTING ACT 1960 S1(2)

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 1 IR 642

WEDNESBURY PRINCIPLES

CONSTITUTION ART 5

CONSTITUTION ART 40.1

MADIGAN V RTE 1994 2 ILRM 471

CONSTITUTION ART 16.2.5

BROADCASTING ACT 2001 S24

BROADCASTING ACT 1960 S17(1)

DENNING V MIN FOR SOCIAL WELFARE 1998 1 IR 34

MCKENNA V AN TAOISEACH (NO 2) 1995 2 IR 20

LYNCH V BRITISH BROADCASTING CORPORATION 1983 NI 193

WILSON V INDEPENDENT BROADCASTING AUTHORITY 1988 SLT 276

BRANDON BOOKS LTD V RTE 1993 ILRM 806

C

Synopsis:

JUDICIAL REVIEW

Declaration

Statutory duty - Whether respondent under statutory duty to act impartially - Scope of that duty - Respondent's decision not to provide live coverage of applicant's Ard Fheis - Whether respondent under statutory duty to provide live coverage of applicant's Ard Fheis - Constitutional rights - Equality - Whether constitutional guarantee of equality applies to applicant - Whether respondent's approach resulted in inequality - Whether decision irrational and unreasonable - Whether respondent's decision not to provide live coverage unreasonable - Broadcasting Authority Act, 1960 sections 17 & 18 - Broadcasting Act, 2001 section 28 - Bunreacht na hEireann, Article 40.1 (2003/1141JR - Carroll J - 24/02/2003)

The Green Party v Radio Telefís Éireann - [2001] 1 IR 558

the applicant sought to review the decision of the respondent not to provide live coverage of its Ard Fheis. It submitted that the respondent had breached its statutory duty under sections 17 and 18 of the Broadcasting Act, 1960 to treat equivalent political parties equally and fairly and its failure in that regard contravened the applicant's constitutional guarantee of equality in Article 40.1 of Bunreacht na hÉireann. It also submitted that the criteria for assessing whether political parties met a 5% threshold of support before their Ard Fheisana would be given live coverage was irrational in that it took account of first preference votes only.

Held by Carroll J in refusing the reliefs sought that section 18 of the Broadcasting Authority Act, 1960 does not impose an absolute and objective requirement of equality rather it imposes a general duty of impartiality. Once the court is satisfied that the respondent has discharged its general duty to act impartially, the court should not intervene because to do so would be to usurp the discretion given to the respondent. The applicant which is made up of individual human persons could rely on the equality provision in Article 40.1 of the Constitution. In deciding whether the approach adopted by the respondent amounted to constitutional unfairness or an improper exercise of its statutory discretion, the principles applicable to judicial review should apply. As such, the criteria which were adopted by the respondent could not be said to illogical or untenable. Neither was there a suggestion that the respondent had acted mala fide.

1 Justice Carroll delivered the 24th day of February 2003.

2 The Applicant's Ard Fheis is due to take place on the 1 ^st and 2 ^nd March, 2003. The Applicant seeks Judicial Review of a decision by the Respondent communicated by letter dated the 15 ^th January, 2003 whereby the Respondent decided to maintain the same criteria for qualification for live coverage of party conferences in 2003. These were that a party qualifies for live conference coverage if it has seven T.D.s or 5% of the first preference votes at the most recent general election. The Applicant had six T.D.s and 3.8% of the vote in the 2002 general election and accordingly did not qualify.

3 The letter also referred to live coverage of the P.D.s conferences in the past which had been raised by the Applicant. The Respondent stated that it rounded up the 4.7% of the vote achieved by the P.D.s in the 1997 election to 5% and on this basis the P.D.s were offered reduced live coverage. It said in the case of the Applicant rounding up 3.8% of 4% still left them short of meeting the qualifying criteria. The letter mentioned that with eight T.D.s in the current Dail, the P.D.s qualified for full coverage.

4 The letter did not mention that after the 1997 election, the P.D.s had only four T.D.s or that the Applicant now had six T.D.s as well as two M.E.P.s.

5 The Applicant seeks a declaration that the refusal to provide any live coverage of the party conference on the 1 ^st and 2 ^nd March, 2003 is unlawful and also an Order of Mandamus directing the Respondent to provide comparable coverage made available to political parties of at least equivalent political stature e.g. the Labour Party, P.D.s and Sinn Fein on the grounds that:-

6 (a) The Applicant has a political stature that is at least equivalent to three other political parties whose conferences are covered by live television and

7 (b) Failure to provide comparable coverage for the Applicant's Ard Fheis contravenes the guarantee of equality in Article 40.1 of the Constitution and the explicit requirements of equality and fairness in Sections 17 and 18 of the Broadcasting Act, 1960and Section 28 of the Broadcasting Act, 2001as recognised in inter alia Couglan v. Broadcasting Complaints Commission [2000] 3 I.R. 1.

8 Section 17 of the Broadcasting Act, 1960provides that in performing its functions the Authority shall bear constantly in mind the national aims of restoring the Irish language and preserving and developing the national culture and shall endeavour to promote the attainment of those aims.

9 Section 18(1) of the Broadcasting Act, 1960as amended by Section 3 of the Broadcasting Authority (Amendment) Act, 1976provides: " 1. Subject to the subsection 1 (A) of this Section, it shall be the duty of the authority to ensure that

10 (a) all news broadcasting by it is reported and presented in an objective and impartial manner and without any expression of the authority's own views,

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

12 The remainder of the subsection is not relevant.

13 Section 1(2) of the Broadcasting Act, 1960provides:

" Nothing in this section shall prevent the authority from transmitting party political broadcast"

14 Section 28 of the Broadcasting Act, 2001refers to the public service character of the Respondent's national broadcasting service.

15 The Applicant claims that the Respondent is under a statutory duty to be objective and impartial and that in reviewing the Respondent's decision, the standard of review as applied in O'Keeffe v. An Bord Pleanála (1993) 1 I.R. 39 and the State (Keegan) v. The Stardust Compensation Tribunal (1986) 1 I.R. 642 is not appropriate (These principles are sometimes referred to as the Wednesbury principles).

16 The standard of review should be more intense as constitutional values are directly implicated. Article 5 of the Constitution emphasizes that Ireland is a democratic State, therefore greater deference should be shown to the will of the elected representations then to the decisions of functionaries in State bodies.

17 Article 40.1 guarantees that all citizens shall be held equal before the law. An overriding obligation of fairness and equal treatment of equals is implicit in Sections 17 and 18 of the 1966 Act as amended. The Applicant claims Madigan v. R.T.E. [1994] 21.L.R.M. 471 dealing with coverage for independent candidates is authority that in coverage of adversarial politics

18 (a) There is an overriding requirement of equivalence of treatment, albeit not the impossible objective of mathematical equality;

19 (b) Criteria based on performance on the previous general election should not be the exclusive test for determining equivalence; and

20 (c) over rigidity in criteria is not permissible, for example a simple mathematical rule of thumb such as seven T.D.s or 5% of first preference.

21 The Applicant claims the criteria over rigid and do not make allowances for the emergence of a new small party or the merger of two parties to form a new party. The criteria are irrational/unreasonable because they take no account of the European Parliamentary elections. The Applicants have two M.E.P.s and are a member of significant block in the European Parliament (the Green group). The criteria are also irrational because the 5% aspect takes account only of first preference votes, whereas under Article 16.2.5 of the Constitution, Dáil Elections must be of way of the single transferable vote.

22 The evidence adduced by the Applicant to prove that it has a political stature, at least equivalent to that of the P.D.s and Sinn Fein parties, if not the Labour Party, is contained in Mr. Nutty's grounding Affidavit in which he sets out that the Applicant has six T.D.s and two M.E.P.s, the Labour Party has twenty-one T.D.s and one M.E.P., the P.D.s have eight T.D.s and no M.E.P. and Sinn Fein have five T.D.s and no M.E.P.s. The Applicant had candidates in thirty-one out of forty-two constituencies and...