IT IS POTENTIALLY the most controversial issue in what is already shaping up to be a distinctly uncontroversial referendum.
Within hours of the date being set for the children’s rights referendum last Tuesday, political parties, civil society groups, human rights campaigners and others were competing to praise the wording of the proposed amendment and to tell the press how they would be campaigning to see it passed.
Unusually, almost all political parties – government and opposition – were united in favour of the referendum; the Children’s Rights Alliance, the ISPCC, Barnardos, the Dublin Rape Crisis Centre, Family Resource Centres, the Campaign for Children, One in Four, Macra na Feirme, CARI, and UNICEF Ireland were among the many groups in favour of the wording.
One of the few cautious voices came from the Irish Council of Civil Liberties, which queried some of the wording around the apparent exemption of State agencies from considering children when proceedings are taken against them.
But what about the dissenting voices?
Former MEP Kathy Sinnott became the first high-profile opponent of the referendum on Thursday. She is a member of a group called Alliance of Parents Against the State, which argues that the proposed amendment takes rights away from parents. Aside from that group, Irish Times columnist John Waters wrote a column criticising the referendum on Friday.
The referendum date is still seven weeks away so more opposing voices may yet emerge. The Iona Institute, a Catholic think-tank, has not yet declared whether it will be involved in the campaign. Other groups may form in the meantime to fill the gap.
However, if things stay as they are, radio and television broadcasters will be faced with a tricky situation.
The effects of the Coughlan judgment
A Supreme Court ruling known as the Coughlan judgment stemming from the 1995 divorce referendum means that television and radio broadcasters must give equal treatment to all sides when covering any election or referendum. It also means that a broadcaster cannot give their own views on the issue. The 50-50 coverage does not apply to print or online news coverage.
The Broadcasting Authority of Ireland has confirmed that the coverage for the Children’s Rights Referendum will, as with every other referendum, have to be balanced – which raises the prospect of a small number of individuals going head to head with the biggest political parties, charities and civil society groups in the country on radio and television during the campaign.
A source with knowledge of the situation told TheJournal.ie that if no strong opposition to the referendum emerges, broadcasters may simply cut down on coverage, rather than give airtime to fringe groups.
The 50-50 requirement has been criticised by government TDs recently: during the summer, Fine Gael chairman Charlie Flanagan described the requirement as “nonsense” and compared it to “a pair of handcuffs” on the Government. “[It] could disproportionately influence the referendum campaign”, he told the Irish Times in July.
It was not the first time the ruling has been the subject of debate. At the time of the second Lisbon referendum the then-head of the Independent Broadcasters of Ireland raised the issue of how effective the requirement was. Willie O’Reilly, then-CEO of Today FM and now commercial director at RTE, said:
Genuine balance and effective scrutiny is not ensured by simply giving equal air time. It is arguably a weakness of broadcasting in the last campaign that some claims were not challenged more.
However the ruling has also been praised for giving a voice to groups outside of political parties and large groups which have the money and resources to mount strong campaigns during elections and referendums.
Coupled with the McKenna judgment, which means that the State cannot use public funds to promote one side in a referendum, the ruling means that the referendum campaign may turn out to be more contentious than it appears right now.
The background to the equal treatment requirements
The requirement for equal treatment came about as a result of a complaint to the Broadcasting Complaints Commission over the coverage of the divorce referendum in 1995. The complainant had argued that RTE had given more than 42 minutes of coverage to the Yes side compared with just 10 minutes to the No side – although a Supreme Court judge involved in the Coughlan vs BCC and RTE case later said in his ruling that 98 per cent of RTE’s coverage had been balanced and the case was concerned with a mere 2 per cent of output.
The complaint was initially dismissed by the BCC which said that RTE had not breached its statutory obligations to be impartial and objective. However the High Court agreed with the complainant upon an appeal, as did the Supreme Court after a further appeal by RTE and the BCC.
The Broadcasting Authority of Ireland (BAI) is now responsible for a code to ensure that broadcasters follow the rules during election and referendum coverage.
In the guidance notes on how to comply with the code, the BAI says:
Broadcasters play an important role in the democratic process of elections and referenda and it is therefore appropriate that they have specific obligations in respect of the approach that they take to the coverage of an election and/or a referendum.In this regard, broadcasters should make every effort to ensure fairness, objectivity and impartiality in the approach to coverage of an election and/or referendum, including the approach to the exposure given to election candidates, electoral and/or referenda interests and political parties in the various elements of their programming.
The code also affects audience participation on shows such as RTE’s Frontline or radio shows which feature debates in front of live audiences such as Today FM’s The Last Word. It states:
Senior staff with overall responsibility for election and/or referendum coverage should ensure that a range of views is adequately represented in the questions, comments, issues raised during programmes that include an element of audience participation
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