RTÉ's failure to include Green Party leader Eamon Ryan in two party leaders' debates to be broadcast ahead of this month's election is fundamentally "unfair, undemocratic and unconstitutional", the High Court has been told.
RTÉ’s decision that only parties with three elected TDs can feature in the leaders’ debates amounts to telling the electorate Mr Ryan and his party “do not matter” and are not “significant players”, Siobhán Phelan SC argued.
If RTÉ’s decision is deemed by the court as being capable of “skewing” electoral choices and interfering with the free exercise of a vote, as the Greens maintain, the court must find the decision unlawful, she submitted.
It was "not good enough" for RTÉ 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" must be subject to judicial review, she added.
RTÉ denies the claims and maintains its three TDs criterion for leaders’ debates is “fair, transparent and reasonable” and applies equally to all parties.
The criterion accords with the station’s legal obligations as a public service broadcaster, RTÉ’s head of current affairs David Nally said in a sworn statement.
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.
Given there are 20 registered political parties in the State, plus several recognisable “groupings”, RTÉ was also entitled to adopt criteria to ensure leaders’ debates are not “unfeasibly large”.
Green Party trustee Tom Kivlehan, a former councillor, initiated proceedings against RTÉ last Friday after the Broadcasting Complaints Commission told Mr Ryan it could not consider his complaint as it regarded its remit as being confined to considering complaints arising from programmes already broadcast.
The hearing is due to conclude on Friday 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 RTÉ’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. RTÉ’s position meant unfair coverage of pre-election policies and inequality of treatment of the Green Party to its detriment.
The two RTÉ 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 said.
RTÉ was breaching constitutional rights to freedom of expression and association “essential to the democratic nature of the State” and the case raised issues of fundamental significance because RTÉ is a public broadcaster regulated by law, with express duties to be fair and impartial in its election coverage and not to favour one party in that coverage.
In court docments, RTÉ argues it cannot be obliged to include every party in the leaders’ debate regardless of its level of Dáil representation. There is no guarantee of absolute equality, either in the Constitution or broadcasting legislation and what is required is RTÉ be fair, objective and impartial.
Leaders debates only form a small part of its general election coverage and separate criteria determine the allocation of air time to political parties and independent candidates during the general election campaign, RTÉ also maintains.
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.