The State (Lynch) v Cooney

Judge O'HIGGINS C.J.,O'HIGGINS C.J.,walshJ.,Henchy J.
Judgment Date01 January 1983
Neutral Citation1982 WJSC-SC 2278
CourtSupreme Court
Docket Number(44-1982)
Date01 January 1983

1982 WJSC-SC 2278

O'Higgins C.J.

Walsh J.

Henchy J.

Griffin J.

Hederman J.




JUDGMENT OF THE COURT deliverd on the 28th July1982by O'HIGGINS C.J.


In these proceedings Sean Lynch (the "respondent") has challenged by means of certiorari an Order made by the first-named appellant (hereinafter called the Minister) on a number of grounds which include the validity having regard to the provisions of the Constitution of the statutory provision under which the Order purports to have been made. The Order is the Broadcasting Authority Act, 1960(section 31) (No. 2) Order, 1982, [S.I. 21 of 1982] and the staturory provision under which it purports to have been made and the constitutional validity of which is challenged, is section 31(1) of the Broadcasting Authority Act, 1960, as inserted by section 16 of the Broadcasting Authority (Amendment) Act, 1976. This judgment will give the decision of the Court on the question of the constitutional validity so raised.


The other issues raised by the respondent will be dealt with in separate judgments by members of the Court.


The respondent was one of seven candidates standing on behalf of the Sinn Féin party in the general election of February 1982. In its coverage of that election Radio Telefis Éireann (hereinafter referred to as RTE), in accordance with established practice, allowed time on television and radio for political broadcasts by the different political parties. The time so allowed was regulated by the size of the parties contesting the election. In relation to the smaller parties, of which Sinn Féin was one, it was necessary to have seven or more candidates in the field to qualify for broadcasting time. When nominations closed, Sinn Féin had seven candidates and on this basis RTE agreed to allow to that party one two-minute broadcast on each of its five outlets (two television and three radio). These broadcasts were to be transmitted on the 10th February 1982 on television and on the 11th February 1982 onradio. The respondent was selected by his party to make these broadcasts on its behalf.


Prior to allowing time to Sinn Féin for such broadcasts RTE had considered whether it was legally entitled to do so, having regard to the provisions of a previous Ministerial Order, S.I. No. 21 of 1981. This Order had been made by the Minister under the provisions of section 31(1) and directed RIE "to refrain from broadcasting any matter which is an interview or report of an interview, with a spokesman for"a number of named organisations including "the organisation styling itself Provisional Sinn Féin."


At this point it is necessary to say that the reference to Provisional Sinn Féin is in fact a reference to the Sinn Féein party. Having been satisfied, on the advice which it received, that the allowance of time to Sinn Féin for an election broadcast did not offend against the terms of this Order, RTE extended the invitation to Sinn Féin and allowed the time already mentioned for the broadcasts on its five broadcastingoutlets. When the decision to this effect was announced the Minister made the Order which is challenged in these proceedings. It was made on the 9th February 1982 and resulted in the proposed broadcasts not being transmitted. The relevant portion of the Order is in the followingterms:


2 "(2) Radio Telefls Éireann is hereby directed to refrain from broadcasting any matter which is-


(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 SinnFéin,


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


This Order was made by the Minister in apparent exercise of the powers conferred on him by section 31(1) of the Broadcasting Authority Act, 1960, as amended. This subsection, so amended, reads as follows:


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 byorder direct the Authority to refrain from broadcasting the matter or any matter of the particular class, and the Authority shall comply with the order.


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 twelve months.


4 (IB) 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 before it, the order shall be annulled accordingly but without prejudice to its validity prior to the annullment."


The validity of this subsection is challenged in these proceedings. This challenge is based on the contention that it constitutes an infringement of thecitizen's right freely to express convictions and opinions as provided for in Article 40.6.1 of the Constitution. The respondent's submissions as to the effect of the subsection may be summarised as follows:


a 1. The Minister in making an Order under the subsection may discriminate in an unconstitutional manner against some citizens and may make an Order inconsistent with the democratic nature of the State.


b 2. The subsection contains no standards or criteria for determining when, how, or to what extent, a given use of an organ of public opinion is, or may be deemed to be, calculated to undermine public order or morality, or the authority of the State.


c 3. The exercise by the Minister of his power under the subsection is not subject to appeal in any form, save only to the extent that it may be annulled by either House of the Oireachtas when such House is in session and remains in session for the requisite period.


d 4. The exercise by the Minister of his power under the subsection is not subject to any procedural safeguardsprovided by the Oireachtas for the purpose of ensuring that the said power is exercised in accordance with the requirements of constitutional justice and is not exercised arbitrarily.


These submissions depend on the correctness of a claim made by the respondent, which is pivotal to his entire case, that the Minister's opinion expressed in the Order which he makes is not reviewable by the courts and that the Minister is accordingly given an absolute and unfettered discretion to act as he thinks proper. In the High Court Mr. Justice O'Hanlon accepted this claim by the respondent. He said in the course of his judgment:

"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."


He was particularly influenced by the use of the word "opinion" in the subsection and referred to a passagein the judgment of the former Supreme Court in In Re Article 26 of the Constitution and the Offences Against the State (Amendment) Bill 1940, 1940 I.R. 470, in which Sullivan C.J. said (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 ..."


While it is not mentioned by Mr. Justice O'Hanlon, this view was later followed by the same court in In re ÓLaighléis 1957 I.R. 93, [The learned trial Judge went on to say:

"I am not aware of any case where the use of the expression"is of opinion" has admitted of judicial review into the reasonableness of thedecision made, and the decision of the Supreme Court in the case already cited would appear to be conclusive against any suchinterpretation."


This reasoning led the learned trial Judge to the conclusion that the section empowered the Minister to act in an unfettered and unreviewable manner and that accordingly the section contravened the invoked provisions of the Constitution.


In the opinion of this Court the learned trial Judge was mistaken in this conclusion. While the opinion of the former Supreme Court expressed in 1940 and 1957 reflected what was then current judicial orthodoxy, judicial thinking has since undergone a change. Decisions given in recent years show that the power of the courts to subject the exercise of administrative powers to judicial review is seen as having a wider reach than that delimited by those decisions of 1940 and 1957. In particular it has been established by this Court in McDonald v. Bord na gCon ...

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