The High Court has refused a judicial review challenge to RTÉ’s criteria for choosing participants in its leaders’ debates ahead of the 2016 general election. Ms Justice Baker said the criteria were sufficiently reasonable, impartial and proportionate, and refused the relief sought.
Tom Kivlehan, a Green Party member, trustee and executive committee member, brought the case as a candidate in the election. He challenged RTÉ’s requirement that a party have at least three sitting members in the outgoing Dáil before its leader could qualify for a debate. His application argued that the rule failed to account for factors including a party’s election candidates, electoral support, history, policy profile and participation in a previous government.
RTÉ’s other stated criteria were that a party be registered in the Dáil and field candidates in the election. The broadcaster said the criteria were objective and followed editorial consideration of the political landscape. Its evidence said a debate with all 15 parties fielding candidates would be unwieldy and could undermine the programme’s coherence and viewing quality.
The court recognised that RTÉ, as a public service broadcaster, had statutory duties concerning impartiality and the democratic process, and that fundamental democratic rights were engaged. It applied a reasonableness and proportionality assessment with a high degree of scrutiny, while also recognising RTÉ’s editorial expertise.
Justice Baker said no party had a constitutional right to take part in the debate and that fairness did not require mathematical equality. Given the number and variety of political parties and groupings in the election, she found that RTÉ could reasonably set a threshold to produce an informative and engaging programme. Current representation in the outgoing Dáil was an objectively ascertainable measure of a party’s support, she said.
The judgment concerned the criteria for the 2016 election. The court noted that RTÉ accepted they were not perfect and might not suit another electoral context. It concluded that the criteria were not unfair, irrational or disproportionate, and refused the requested relief.