Greens want RTÉ to favour them over other parties, court told

The Green Party wants RTÉ to apply “subjective” criteria for televised party leaders’ debates that would favour the Greens over other parties, RTÉ has argued before the High Court.

RTÉ cannot set criteria for inclusion in party leaders’ debates that start from a perspective of approving a particular policy, Nuala Butler SC, for RTÉ argued.

The Greens effectively want the importance of their position on environmental issues to be included in the leaders’ debate scheduled for broadcast by RTÉ on Monday and involving seven party leaders, she said.

Counsel was making arguments opposing the action by Green Party trustee Tom Kivlehan against RTÉ over its failure to invite Green Party leader Eamon Ryan to participate in the debate. The case has concluded after a two-day hearing, with judgment reserved by Ms Justice Marie Baker to Monday at 2pm.

Because the first debate is due for broadcast Monday night, the case has been “telescoped”, involving Mr Kivlehan’s application for leave for judicial review of RTÉ’s decision being merged with a full review.

The “objective”, “impartial” and “transparent” criteria set by RTÉ for leaders’ debates, which include a requirement parties have three TDs in the outgoing Dail, will be criticised by disappointed smaller parties who don’t meet the criteria, but that does not make the criteria unconstitutional, she added.

RTÉ was not contending there is no limit on its editorial discretion, but rather that it has “a margin of appreciation” within which editorial decisions can be made which do not amount to breach of rights.

Earlier, Siobhán Phelan SC, for Mr Kivlehan, said her client was bringing the case as a trustee of the Green Party and one of its candidates in the general election. This action was not brought by the Green Party itself, but Mr Kivlehan has the necessary legal standing to bring it on grounds including every citizen and voter has an interest in upholding the democratic process, she said.

RTÉ can and should adopt more “flexible” criteria when deciding who may participate in its leaders’ debates, she argued. RTÉ’s three TDs criterion was unnecessarily rigid and breached the constitutional guarantee of equality.

In court documents, RTÉ denies excluding the Greens from the leaders’ debates and maintains the Greens have rather failed to meet RTÉ’s “fair, objective and impartial” criteria set for “sound” editorial reasons and applicable to all parties.

The requirements of fair and impartial broadcasting do not require RTÉ to give all political parties equal airtime or to invite a representative of every party onto every programme involving a panel discussion, RTÉ argues.

In a sworn statement, David Nally, head of TV current affairs, said, when deciding the number and format of TV party leader debates, RTÉ is exercising editorial judgment which requires balancing factors including fairness, balance and inclusivity, plus practical considerations such as “achievability” and the need to deliver a “meaningful, informative and engaging” programme to viewers.

The removal of those editorial criteria in favour of a party by party analysis of historical record/current policy platform would result in a “subjective weighting” by RTÉ which would be “entirely unworkable” and have “far-reaching consequences” not just for leaders’ debates but all political and electoral coverage programming.

While RTE acknowledged current Dail representation may not be a “perfect” criterion for invitation to the leaders debate, it is “objective and impartial”, he said.

While the Greens cannot meet the three TDs requirement for Monday’s debate, the party previously benefitted from that criterion and never previously objected to it, he added.