Pat Rabbitte (Dublin South West, Labour) | Oireachtas source

That is certainly a thought but it should probably come from a citizen rather than an officeholder. It is argued that, taken together with the second McKenna judgment, this case ensures that the entity which arguably has the most democratic legitimacy claim to exercise persuasive force - the elected Government - is largely prevented from doing so and effectively emasculated in its leadership role. Dealing with the Coughlan case specifically, that ruling was directed only at "uncontested broadcasts", including party political broadcasts, since no complaint was made in respect of news and current affairs coverage.

In practice, however, the effect of the Coughlan judgment seems to have been to create a situation in which broadcasters feel constrained to give 50% of air time to both sides of a referendum campaign. If this is so, it is not because of the Broadcasting Authority of Ireland, BAI, or its codes. The current edition reads:

[T]here is no automatic requirement to allocate an absolute equality of airtime to opposing views during coverage of a referendum. However, the allocation of airtime must be equitable and fair to all interests and undertaken in a transparent manner.

Broadcasters should note that allocation of airtime is not the only measure of fairness. It will be necessary for a broadcaster to consider the range of ways in which fairness is achieved and to ensure that active consideration is given to ensuring its achievement whether through the selection of contributors, the scope of the debate, the structure of the programme, the make-up of audiences, the role of the presenter or through other suitable means.

Broadcasters should also note that a referendum debate is a dynamic discussion and the approach taken to airtime and to coverage in general is likely to evolve over the duration of a campaign.

None the less, it seems that 50:50 is still the default provision. We all recollect how artificial it was to seek to allocate equal time on the airwaves to those arguing against the Good Friday Agreement, the children's rights amendment or the establishment of a court of appeal. I invite the BAI and the public service and commercial broadcasters that are bound by its codes to consider what further refinements can be made to the referendum code while respecting the strictures of the Supreme Court judgment.