Deputy O'Toole was in possession.
Private Business. - Broadcasting Authority (Amendment) Bill, 1979: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
I think Deputy O'Toole had finished.
Yes, I had.
I have just a few points to make and I shall do so briefly.
First of all, let me say that the headlines and the newspaper notices I saw in regard to the earlier debate on this Bill, or some of them, tended to suggest that Fine Gael were out to legalise the pirates. That is absolutely a misrepresentation of this party's position.
Dublin South-Central): That is what Deputy Keating said.
I am not attributing that misrepresentation to the Minister of State present. There is no question of our being anxious to legalise the position of people who have broken the law, bad though the existing law is. What we are anxious to do is to produce a change in the law which will make it possible for private individuals, within the law, to have access to the airwaves. The idea that we have any special soft spot for a pirate is completely wrong. I can tell the Minister of State present—if it is of any interest to him—that I received several invitations during the period this matter was last being debated, when it was last a matter of public debate—to appear on these pirate stations, to give my views on the air over those stations. I uniformly refused those invitations because I do not approve of pirates in any shape or form on the air or off the air.
(Dublin South-Central): The Deputy's colleague does.
He does not. The Minister has not understood him. The law ought not to be such that a person who might otherwise be honest is driven to piracy in order to make use of a medium which it should be his free right to avail himself of. I was going to say in the few minutes before Question Time not so much what I think about the case which can be made about private local broadcasting. Other colleagues of mine have made that case very adequately and I do not want to go back over it. I believe there is scope here for privately owned broadcasting stations. I have no doubt, as Senator Murphy said the last time public controversy about this was going on, that the cultural level of those stations will leave a lot to be desired. I have no doubt that is true, but are we going to hold a kind of cultural hurdle over which any one must jump if he is to have access to the airways? One is embarked on a downward, slippery slope if one starts dictating to other people what cultural level they must transcend in order that they can exercise their right of expression.
We do not apply standards of that kind in newspapers. If we did, I can think of a couple of newspapers that would have to be suppressed quickly enough, that is, if we were to employ the idea that anything that is not valuable and serious has no right to be printed. I do not hold that opinion. I do not read those newspapers, they do not interest me, but I do not hold the opinion that they are not entitled to be printed.
In the same way I do not hold the opinion that merely because the stations put out a mixture of unbearable pop that I would not listen to for ten seconds, that is a good reason for keeping it off the air. That is not a good reason for keeping it off the air, and a State like this is in duty bound to sustain people even though their message may not be as high minded or as culturally uplifting as we might have hoped it would be.
I would like, apart from questions of policy, to give the House, not for the first time, my opinion as a lawyer—any other lawyer's opinion is no doubt just as good, if not better—the view that the State is not entitled under our Constitution or under the European Convention on Human Rights to maintain a monopoly of broadcasting. Article 40.6.1º has a special provision about freedom of expression and states:
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
I want to draw the attention of the House to the fact that radio, press and cinema are mentioned in one breath in the Constitution. There is no kind of distinction or discrimination between them. We do not attempt to dictate to filmmakers how many of them shall make films. We do not attempt to assert a State monopoly in film making. In fact the State does not make films in any shape or form. It is an entirely free enterprise matter.
The same goes for the press. If you leave out Iris Oifigiúil and the publications of the Department of Foreign Affairs and of any other Departments, the entire press here is in the hands of private enterprise. We do not see any great sin in that. In fact, we fall over ourselves going through the ritual of praising the press for the choice of opinions it gives us. Why should the radio be in a different position? I know there is a technical distinction between the radio and the press in that we cannot have a free for all on the airwaves. I know that and I am not so childish as to pretend otherwise. I know that the number of frequencies is limited, but I would like to hear from the Minister how many frequencies would be disposable here—I am speaking about the technicality of it, not the politics of it—for stations with a radius of 50 radio miles, 100 miles and 300 miles? If there are available frequences within that kind of limited radius which will not interfere with large international stations, aviation, emergency calls, police calls and all the other interests which I frequently admit are absolutely entitled to protection, a private operator is as much entitled to access to them as the State.
The State has shown a peculiar bigheadedness in this matter down through the years. I remember it being mentioned while we were in office. The answer put into the hands of the then Minister for Posts and Telegraphs, which he read out to the House or published in some shape or form, was the usual thing about the frequencies being limited, although we were never told how limited, the necessity to keep clear airways for police, ambulances, rescue and all the rest of it which everybody admits. The statement wound up with "because the financial position of RTE has to be protected". That is all bosh. There is no possibility in a free country like this, under the kind of Constitution we have, of keeping people off the airways so that RTE will be able to have a monopoly of advertising. That cannot be done in a free country like this. If the State wants to pay for its radio stations and television stations it will have to pay for it itself without having it at the expense of other people's liberties.
I hold no brief for radio operators. I do not know any of them and I have never appeared on a private station. I have no interest in them good or bad. I freely believe and accept what I hear about the very low cultural quality of their output. They are as much entitled to put out mush on the airwaves as they are to deliver a lecture on prehistoric India. If we do not believe that we are on the first of a very slippery path.
That is the dimension of the freedom of expression in Article 40.6. Article 43 deals with property and entitles the State to regulate private property for certain objects, which have never been squarely identified or authoritatively and finally delineated. I believe that, even looked at as a dimension of property, and leaving the expression thing out of it altogether, it is not open to the State to say in this particular business of selling advertising time on the air: "We will move in and keep a monopoly and nobody else will get a smell of it." I am not as sure about this as the freedom of expression angle. I may easily be wrong about Article 43 but that is a serious point. It may not be open to the State to say "Whatever advertising is going on the air we will get it and give it to our own creature in the shape of Radio Telefis Eireann.
Not only is this monopoly, which has been pig headedly defended by the State since 1926, constitutionally questionable, but it appears to me to be also in conflict with the obligations which the State took on itself in signing the European Human Rights Convention. Article 10 of that convention clearly describes the State as having a right to licence broadcasting, television or cinema enterprises, but the ordinary legal principle on which Irish lawyers, French lawyers, German lawyers and every other lawyer works is that the expression of one idea implies the exclusion of another. When this Article speaks about the State being entitled to licence broadcasts that implicitly excludes any entitlement on the part of the State to monopolise it.
I want to be realistic, and I accept that RTE is a major achievement of the State although we have faults to find with it at times. It fulfils a very necessary function. I am in no way against a national broadcasting station, or two or ten national broadcasting stations, the more the merrier. We would be very much poorer without it. I would be in favour of giving the station tasks and allowing it to do things which it has never done so far. I do not want to destroy it or make it a financial burden. I believe the State ought to free RTE 1, at least so far as television is concerned completely from the burden of advertising. Our first television channel ought to be advertising free. If that means that it will cost the State more so be it. The aesthetically destructive effect of the intrusion of advertising needs no emphasis from me. It imposes constraints on programme planning and it is aesthetically destructive. A decent national television station ought not to have it. I believe that function should be shelved and the State should then pay for it. I would not be adverse, if this suggestion is any use to the Minister, to having the State recoup some of that loss by placing an extremely heavy tax on the issuing of licences to independent operators.
Debate adjourned.