AG accused of trying to circumvent McKenna case ruling

The Attorney General has asked the Supreme Court to indicate whether public funds can be allocated to a government to advocate a particular side in a referendum campaign in a situation where all political parties and interest groups were also funded, on a proportional basis, from the public purse.

The Attorney General would like an indication that the Supreme Court judgment in the 1995 case taken by MEP Ms Patricia McKenna - which precluded the executive from using public funds to finance advertisements advocating one side in a referendum campaign - would not apply in a different context, Mr Eoghan Fitzsimons SC, for the Attorney General, said.

Mr Michael McDowell SC submitted the Attorney General was effectively trying to "circumvent" the Supreme Court decision in the McKenna case and to "loot the Exchequer" to secure a particular result in a referendum campaign.

The Attorney General was seeking to find a way to have public monies applied unequally in a referendum campaign through a mechanism internally fair to the political parties. This was an attempt to open "a back door" on the McKenna decision, he argued.

If the Attorney General succeeded, a majority in the Oireachtas could use public monies to advocate one side in a referendum.

The submissions were made during an appeal by RTE and the Broadcasting Complaints Commission (BCC) against a High Court decision last year upholding a complaint by Mr Anthony Coughlan, of Crawford Avenue, Drumcondra, a lecturer in Trinity College, over RTE's allocation of uncontested broadcasting time to both sides during the 1995 divorce referendum.

The Attorney General is supporting the appeal.

In the divorce referendum, RTE allocated 42.5 minutes of uncontested broadcasting time to the Yes side and just 10 minutes to the No side.

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 quashed a decision by the BCC of March 1997 insofar as it dismissed Mr Coughlan's complaint about RTE's coverage.

In the Supreme Court yesterday, Mr Fitzsimons said the Attorney General took the view that, without the involvement of the political parties, democracy was damaged. Voter turnout in the referendum on the Maastricht Treaty was just 56 per cent and that was a vital referendum.

It was the Attorney General's view that advocacy in a referendum campaign would bring out voters, whereas a neutral presentation by a referendum commission might not have that effect.

Counsel said the problem from the Attorney General's perspective was that an Oireachtas Committee on Legislation was dealing with the entire issue of referendums. The Attorney General accepted the McKenna decision was "entirely logical" but would like an indication that the decision would not apply in a different context.

Mr McDowell, for Mr Coughlan, said the Attorney General wanted the court to say it would be all right for the Oireachtas to vote funds to a referendum commission to be spent in referendums and allocated by reference to the size of political parties. If the High Court decision in Mr Coughlan's case stood, this was an obstacle to what the Attorney General sought.

The effect of what the Attorney General was seeking was that the State, through public funding of political parties in referendums, would back the majority view, Mr McDowell said. RTE was just "a small side-show" in a general move by politicians to escape the McKenna decision.

Mr McDowell stressed to the judges that the substance of any particular referendum should not be taken into account in their approach to the appeal.

The court could not presume that one referendum required impartiality and another did not. He said RTE did not even start from the principle of equality for all citizens in relation to uncontested broadcast time in referendums. It took the view that the interests of political parties were sacrosanct.

If RTE could, on its own evidence, be fair in relation to 98 per cent of coverage, it could be fair in relation to the remaining 2 per cent.

RTE's obligations under Section 18.1 of the Broadcasting Act to be fair to all interests concerned was not changed by Section 18.2, which provided that nothing in Section 18 should prevent the transmission of party political broadcasts.

Earlier, in submissions on behalf of RTE, Ms Mary Finlay SC said the issue was whether RTE had acted in excess of its jurisdiction or in breach of its statutory obligations in allocating time during the 1995 divorce referendum campaign for uncontested broadcasts to five political parties, all of which advocated a Yes vote.

Counsel said the legislature has conferred on RTE the responsibility of deciding broadcast coverage in referendums which was fair to all concerned. The courts should intervene only if RTE acted outside that, and RTE had not done so.

If RTE was obliged in every referendum to allocate equal time for uncontested broadcasts to both sides, such allocations could, in circumstances where many groups favoured one result and almost none favoured the other side, lead to an unfairness to certain groups actively participating in the referendum campaign, it was submitted.

The hearing continues today.