State (Lynch) v Cooney

• Jurisdiction: Ireland
• Judge: O'HANLON J.
• Judgment Date: 16 February 1982
• Neutral Citation: 1982 WJSC-HC 1125
• Court: High Court
• Docket Number: 1982 - 58 S.S.
• Date: 16 February 1982

1982 WJSC-HC 1125

THE HIGH COURT

1982 - 58 S.S.

STATE (LYNCH) v. COONEY & A.G.

(State Side)

IN THE MATTER OF THE BROADCASTING AUTHORITY ACTS 1960to 1976

AND IN THE MATTER OF THE ELECTORAL ACTS 1923to 1974

AND IN THE MATTER OF THE COURTS OF JUSTICE ACTS 1924to 1971

AND IN THE MATTER OF BUNREACHT NA hEIREANN

THE STATE (AT THE PROSECUTION OF SEAN LYNCH)

PROSECUTOR

AND

PATRICK COONEY, MINISTER FOR POSTS AND TELEGRAPHS, AND THEATTORNEY GENERAL OF IRELAND

RESPONDENTS

1 JUDGMENT OF O'HANLON J.DELIVERED THE 16th FEBRUARY, 1982

2 In this case the Prosecutor challenges the validity of an order made by the first-named Respondent in his capacity as Minister for Posts and Telegraphs, pursuant to the provisions of section 31(1) of the Broadcasting Authority Act, 1960, (No. 10 of 1960), inserted by section 16 of the Broadcasting Authority (Amendment) Act, 1976(No. 37 of 1976).

3 By the said order (S.I. No. 21 of 1982, dated 9th day of February, 1982) the Minister directed Radio Telefis Eireann to refrain from broadcasting any matter which is -

4 (a) a broadcast whether purporting to be a political party broadcast or not, made by, or on behalf of or advocating, offering or inviting support for, the organisation styling itself Provisional Sinn Fein,

5 (b) a broadcast by any person or persons representing or purporting to represent the said organisation.

6 The Order may be cited as the Broadcasting Authority Act, 1960(Section 31) (No. 2) Order, 1982, and provides that it is to remain in force until the 19th day of January, 1983.

7 The Broadcasting Authority Act, 1960(No. 10 of 1960) is described in its long title as "An Act to enable an Authority to be established for the purpose of providing a national television and sound broadcasting service, to amend and extend the Wireless Telegraphy Acts, 1926and 1956, and to provide for matters connected with the mattersaforesaid".

8 Sec. 3 and Sec. 4 of the Act provide for the appointment by the Government of the Authority, consisting of not less than seven and not more than nine persons, and its functions are defined in Sec. 16 (1) in general terms - "The Authority shallestablish and maintain a national television and sound broadcasti service and shall have all such powers as are necessary for or incidental to that purpose".

9 In fact, no other lawful television or sound broadcasting service has been licensed or established for the State since the passing of the Act, so that it is correct to say that the national television and sound broadcasting service controlled by the Authority enjoys a monopoly for the time being of what has become in the course of time as powerful and influential a medium of communication with the public as the Press, if not more powerful.

10 Important provisions are contained in the Act of 1960 and in the amending Act of 1976 to ensure that fairness and impartiality are constantly observed in the planning of programmes - see, for example, Sec. 18 of the Act of 1960 and Sec. 3 of the amending Act of 1976. Reading the two Acts together it is apparent that many safeguards have been built into this legislation to comply with the requirements of the Constitution, as contained in Art. 40.6.1.i. which reads asfollows:

"40.6.1. The State guarantees liberty for the exercise of the following rights subject to public order and morality;

11 1. The right of the citizens to express freely their convictions andopinions.

12 The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law".

13 What we are concerned with here, however, is the Ministerial veto found originally in Sec. 31 (1) of the Act of 1960, and now found in a much modified form in three new subsections substituted for subsection (1) of section 31 by the amendment of the Principal Act effected by sec. 16 of the Broadcasting Authority (Amendment) Act, 1976. These new subsections read as follows:-

14 2 "(1) Where the Minister is of the opinion that the broadcasting of a particular matter or any matter of a particular class would be likely to promote or incite to, crime, or would tend to undermine the authority of the State, he may by order direct the Authority to refrain from broadcasting the matter or any matter of the particular class, and the Authority shall comply with theorder."

15 3 "(1A) An order under subsection (1) of this section shall remain in force for such period not exceeding twelve months as is specified in the order and the period for which the order is to remain in force may be extended or further extended by an order made by the Minister or by a resolution passed by both Houses of the Oireachtas providing for its extension; provided that the period for which an order under the said subsection (1) is extended or further extended by an order or resolution under this subsection shall not exceed a period of 12 months."

16 4 "(1B) Every order made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid be are it, the order shall be annulled accordingly but without prejudice to its validity prior to theannullments

17 In the present case the Prosecutor is a member of Sinn Fein, a registered political party, and a candidate for election in the election to Dail Eireann scheduled to take place on Thursday, 18th February, 1982. He complains that the Ministerial Order containe in S.I. No. 21 of 1982 prevents all access by himself and his six fellow Sinn Fein candidates to radio or television to promote their electoral campaign, whereas broadcasting rights are being afforded by the Authority to candidates from all other parties presenting not less than seven candidates for election.

18 On the 13th February, 1982, Barrington J. granted a conditional order of certiorari in favour of the Prosecutor for the quashing of the said Ministerial Order upon the grounds set forth in the Second Schedule to the Court Order, which correspond to the grounds set forth and relied on in the prayer in Par. 1 of the grounding affidavit of theProsecutor.

19 These grounds fall under three headings -

20 (1) that the Ministerial Order was ultra vires the Minister for a number of different reasons;

21 (2) that the making of the Order infringed certain constitutional rights of the Prosecutor and other lawfully-nominated candidatesstanding for Sinn Fein in the pending General Election;

22 (2) that the provisions of Section 31 (1) of the Broadcasting Authority Act 1960(No. 10 of 1960) as amended by Section 16 of the Broadcasting Authority (Amendment) Act 1976(No. 37 of 1976) violate the provisions of Articles 16 and 40 of the Constitution and are therefore null and void.

23 For the Minister it was argued with a good deal of force that the order was a purely administrative order and was not subject to review by the Court on grounds of unreasonableness or otherwise; that in the event of the Minister bona fide forming an opinion as referred to in the new subsection (1) of Section 31, it entitled him to make an order directing the Authority to refrain from broadcasting the matter or any matter of the particular class.

24 I am of opinion that this primary submission made by the Attorney General is correct and that the amended version of section 31 gives the Minister a far-reaching power of veto over material for broadcasting which is not, prima facie, susceptible of control by the Courts or by any other body save the Houses of the Oireachtas once it appears that the Minister has formed an opinion of the nature mentioned in thesubsection.

25 Reference was made in the course of the argument to the case of Inre Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940, (1940) I.R. 470. The judgment of Sullivan, C.J. contains the following passage at p. 479:

"In the opinion of this Court neither s. 4 nor s. 5 of the Bill creates or purports to create a criminal offence. The only essential preliminary to the exercise by a Minister of the powers contained in s. 4 is that he should have formed opinions on the matters specifically mentioned in the section. The validity of such opinions is not a matter that could be questioned in any Court. Having formed such opinions, the Minister is entitled to make an order for detention; but this Court is of opinion that the detention is not in the nature of punishment, but is a precautionary measure taken for the purpose of preserving the public peace and order and the security of the State ...."

26 A different expression was used in Part VI of the Offences Against the State Act, 1939, which otherwise contained provisions for detention without trial very similar to those contained in the amending Bill referred by the President to the Supreme Court in the intended exercise of his powers under Article 26 of the Constitution.

27 Sec. 55 of the earlier Act provided:

"(1) Whenever a Minister of State is satisfied that any particular person is engaged in activities calculated to prejudice the preservation of the peace, order, or security of the State, such Minister may by warrant under his hand order the arrest and detention of such person under this section."

28 Gavan Duffy J. in The State (Burke) -v- Lennon, (1940) I.R.136, held that the Minister in signing a warrant under the section was not only acting judicially but was...