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”, said Siobhán Phelan, SC for the Green Party.
If the court finds RTÉ’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, 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”, especially the democratic values at the heart of the Constitution which underpin democratic elections, must be subject to judicial review.
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 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 as the party does not have three elected TDs, he said.
Given there are 20 registered 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 that he was not included in the leaders’ debate because it regarded its remit as confined to considering complaints arising from programmes already broadcast.
The hearing was specially fixed for Thursday and is due to conclude today. Ms Justice Marie Baker has indicated she will deliver judgement on Monday.
Because the first debate is due for broadcast on 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 that Mr Ryan’s exclusion on grounds that 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.
For more election news, analysis and general banter join us 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. 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.
The Greens contend their leader’s exclusion will have a material and adverse effect on its prospects in the general election.
RTÉ argues it cannot be obliged to include every party in the 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, it submits.
RTÉ denies excluding Mr Ryan and says 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 RTÉ to subjectively assess the organisational merit of political parties and the worth of their policies, RTÉ argues.