Tuesday 25 October 2016

RTE’s failure to include Green Party leader Eamon Ryan in two leaders’ debates this month fundamentally 'unconstitutional', High Court told

Tim Healy

Published 11/02/2016 | 17:25

Eamon Ryan
Eamon Ryan

RTE’s failure to include Green Party leader Eamon Ryan in two leaders’ debates to be broadcast this month is fundamentally "unfair, undemocratic and unconstitutional", the High Court has been told.

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RTE’s decision that only parties with three elected TDs can feature in the debates amounts to telling the electorate Mr Ryan and his party "do not matter" and are not “significant players”, Siobhán Phelan SC argued.

She was making submissions in an action by Green Party trustee Tom Kivlehan against RTE.  It was launched last week after the Broadcasting Complaints Commission told Mr Ryan it could not consider his complaint he was not included because it regarded its remit as confined to considering complaints arising from programmes already broadcast.

RTE denies the claims and maintains its three TDs criterion for leaders' debates is “fair, transparent and reasonable” and applies equally to all parties.

If the court finds RTE’s decision is capable of “skewing” electoral choices and interfering with free exercise of a vote, as the Greens maintain, the court must find it unlawful,  Ms Phelan submitted.

It was “not good enough” for RTE to say it is the expert and its criteria for inclusion in debates will make better viewing.

An editorial decision that “cuts across constitutional values”, especially the democratic values at the heart of the Constitution which underpin democratic elections, must be subject to judicial review.

RTE head of current affairs David Nally says the three-TDs criterion accords with the station’s legal obligations as a public service broadcaster.

The Greens had not previously objected to the criterion and their complaint appeared to arise now because the party does not have three elected TDs, he said in an affidavit.

Given there are 20 registered political parties in the State, plus several recognisable “groupings”, RTE was also entitled to adopt criteria to ensure leaders’ debates are not “unfeasibly large”, he said.

The hearing is due to conclude Friday (Feb 11) and Ms Justice Marie Baker has indicated she will deliver judgment on Monday.

Because the first debate is due for broadcast Monday night, the judge is hearing “telescoped” proceedings, involving Mr Kivlehan’s application for leave for judicial review of RTE’s decision being merged with a full review.

In submissions for Mr Kivlehan, Ms Phelan argued Mr Ryan’s exclusion on grounds the Greens do not meet the three TDs criterion is arbitrary, overly rigid and unfair and fails to recognise the Greens are an all-Ireland party running 40 candidates in the general election and with 12 councillors here.

The three TDs criterion only applies to party leaders’ debates and not other general election coverage, she said.  RTE’s position meant unfair coverage of pre-election policies and inequality of treatment of the Green Party to its detriment.

The two RTE debates will involve four and seven party leaders, two of whom  headed parties which did not exist at the time of the last general election, she said.

Leaders debates were “significant” events which had evolved since their introduction in 1982 and had taken different formats over time.

Because the seven leader debate was intended to allow a wider platform, that begged the question why the Greens were excluded, she


The Greens contend their leader's exclusion will have a material and adverse effect on their prospects in the general election.

In court documents, RTE argues it cannot be obliged to include every party in the leaders’ debate regardless of its level of Dail representation. There is no guarantee of absolute equality, either in the Constitution or broadcasting legislation and what is required is RTE be fair, objective and impartial, it submits.

RTE denies excluding Mr Ryan and argues the Greens were rather told the criteria for his inclusion were not met.

Those criteria were set for “sound editorial reasons” and the alternative criteria advocated by the Greens would require RTE to

subjectively assess the organisational merit of political parties and the worth of their policies, RTE argues.

TV3 and TG4 planned to hold one debate with just four leaders and the Greens were not invited to take part in those debates, it added.

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