The Government is "hamstrung" by the interpretation of the Supreme Court decision, in a case taken by Dublin Green Party MEP Ms Patricia McKenna, preventing it from using public monies to advance one side in the 1995 divorce referendum campaign, the Attorney General argued before the Supreme Court yesterday.
Mr Eoghan Fitzsimons SC, for the Attorney General, asked the court to make clear the McKenna decision had a narrow interpretation and did not, for example, prevent a government funding both sides in a referendum campaign. It also allowed for a situation where an independent commission could allocate, on a proportional basis, funds to a government, political parties or organised bodies to advance their positions in a referendum. He argued the High Court was wrong to apply the McKenna decision in its judgment upholding a challenge by Mr Anthony Coughlan, of Crawford Avenue, Drumcondra, Dublin, and a lecturer at Trinity College Dublin, to RTE's allocation of uncontested broadcast time to both sides during the 1995 divorce referendum.
In the divorce referendum, RTE allocated 42.5 minutes uncontested broadcasting time to the Yes side and just 10 minutes to the No side. The uncontested broadcasts involved five political parties and two lobby groups advocating Yes and two lobby groups urging No.
In the High Court, Mr Justice Carney declared that the failure by RTE to allocate equal time to both sides for uncontested broadcasts had resulted in "inequality amounting to unconstitutional unfairness" and was an undemocratic interference with the referendum process.
He also found the Broadcasting Complaints Commission (BCC) had erred in law in its decision of March 1997 partially dismissing Mr Coughlan's complaint about RTE's coverage.
RTE and the BCC appealed the decision to the Supreme Court. The Attorney General supported the appeal, which was heard in February by a five-judge court, including the then Mr Justice O'Flaherty. However, judgment had not been delivered at the time of the latter's resignation, in the wake of the Sheedy affair, and the appeal is now being reheard. Mr Justice Barron has replaced Mr Justice O'Flaherty.
Opening the new appeal yesterday, Mr James O'Reilly SC, for the BCC, said it centred on construction of Section 18 of the Broadcasting Authority Act 1960, as amended. Section 18.1 obliged RTE to be fair to all interests concerned in the broadcast treatment of current affairs but Section 18.2, which provided that nothing in Section 18 should prevent the transmission of party political broadcasts, constituted a derogation from that obligation.
He argued that the High Court erred in failing to have proper regard for the limited jurisdiction of the BCC as an administrative tribunal. The BCC's decision on Mr Coughlan's complaint was made within this limited jurisdiction and it was reasonable to infer that Section 18.2 entitled the BCC to act as it had.
Ms Mary Finlay SC, for RTE, said the issue was whether RTE had acted in excess of its jurisdiction or in breach of its statutory obligations in allocating time in the 1995 divorce campaign for uncontested broadcasts to five political parties, all of which advocated a Yes vote.
She said the McKenna judgment had created uncertainty for RTE's obligations in a referendum campaign and had led to RTE not running any party political broadcasts in recent referendums.
The difficult question for the court was determining to what extent Section 18.2 of the Broadcasting Act, stating nothing should prevent the transmission of party political broadcasts, overrode RTE's obligation in Section 18.1 to be fair to all interests.
She said fairness to all interests concerned did not mean granting equal time to both sides in a referendum campaign. Fairness was not always the same as equality. The court had to ask what interests were involved. These included individual citizens who had associated in political parties. RTE was entitled to have regard to groups actively engaged in the democratic process.
She said the High Court was wrong in applying the McKenna decision to the RTE situation. To allocate equal time for uncontested broadcasts to the Yes and No sides in a referendum would not be a proper discharge of RTE's obligations under the Broadcasting Acts. RTE should be entitled to allocate a limited amount of uncontested broadcast time to the political parties to advance their views.
Could it be unconstitutionally unfair to allow political parties, who met the criteria for party political broadcast time, a small amount of uncontested airtime out of the entire time allocated to referendum coverage, she asked. It was too simplistic to put RTE into a "straitjacket" where it had to allocate equal airtime for uncontested broadcasts.
Mr Justice Keane said we "are stuck in a time warp" regarding party political broadcasts. The system dated back to the war and to a time before politicians had microphones "stuck under their noses at every opportunity". The appeal continues.