JOINT COMMITTEE ON THE CONSTITUTION debate -
Tuesday, 11 Nov 2008

Constitutional Referendum Process: Discussion.

Chairman

The Joint Committee on the Constitution has agreed to undertake a review of the constitutional referendum process. In undertaking this review it will consider aspects of the referendum procedure prescribed by Articles 46 and 47 of the Constitution. In the first instance, it will consider the current arrangements, whereby information is imparted to the public during the course of referendum campaigns. The committee has sought and will continue to seek the views of the public and independent broadcast media, media regulatory bodies, experts from academia and the legal profession and individuals and groups which have supported and opposed the proposals submitted to referendums. It will also consider the rules that apply in other EU member states to referendum campaigning.

This is the first of a series of meetings the committee will hold with various organisations and individuals to hear their views and perspectives on the referendum process and, in particular, the current arrangements whereby information is imparted to the public during the course of referendum campaigns. The purpose of this meeting is to consider broadcasting policy practice and regulation in relation to referendum broadcasts. The meeting will consist of two sessions. In the first the committee will hear from the Broadcasting Commission of Ireland, Independent Broadcasters of Ireland and Newstalk Radio. In the second we will hear from RTE and TV3.

I welcome from the Broadcasting Commission of Ireland Mr. Michael O'Keeffe, chief executive, and Mr. Declan McLaughlin, broadcasting standards officer. We are also joined by the chairman of Independent Broadcasters of Ireland, Mr. Willie O'Reilly. I understand that, while he is not here in that capacity today, he is also chief executive of Today FM. I also welcome from Newstalk Radio Ms Elaine Geraghty, chief executive, and Mr. Garett Harte, station edditor. We are very grateful to everyone for taking the time to attend and contribute. We also thank them for the written submissions they have supplied which have been very helpful to us. I draw attention to the fact that while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee.

We will hear initially from Mr. O'Keeffe of the Broadcasting Commission of Ireland and then from Ms Geraghty.

Mr. Michael O’Keeffe

As indicated, I have sent a short presentation. I will talk a little about its key elements. There are four dimensions to it. First, there is the legislative background. We will speak about the guidelines as they apply to elections and, in particular, referendums. We will look at some of the compliance issues that have arisen. I will then make some general observations which will be brief because in the course of the question and answer session we can deal generally with any issues that arise.

I will start with the background and introduction. The guidelines we issue to broadcasters come from the Radio and Television Act 1988. There was also a minor amendment to the 2001 Act but it is not particularly relevant. There are two elements to this, the first of which is that all news items must be reported in an objective and impartial manner. The second relates to current affairs, the key element of which is that the broadcast treatment is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner without any expression of the broadcasters' own views. There is a facility to do this within a number of broadcasts, if it is not practical to do so in one. In order to address the requirements of these sections, we issue guidelines to all licensed broadcasters in advance of all national polls. This includes all elections, general, local, European and presidential, as well as any referendums that occur from time to time.

On the guidelines — we have copies of the guidelines issued for the most recent referendum if any members wish to have them — the general principles are that the coverage is fair, impartial, balanced and objective, and without any expression of the broadcasters' own views. We require broadcasters to develop mechanisms to ensure they comply with these principles. There is a further requirement that the chief executives and programme controllers of all stations ensure throughout the process that coverage is in line with the guidelines and that the staff of all broadcasters, including on-air personnel, are familiar with and adhere to this requirement.

There are other elements. First, there is a prohibition on advertising directed towards a political end. Second, the issue which has caused most of the debate on compliance has been the moratorium on coverage from the day before the poll until polls close.

There are three requirements that are specific to referenda which I know are of particular interest to the joint committee. First, there is a requirement to comply with the provisions of the Referendum Act and to broadcast announcements. The Referendum Commission has a statutory requirement to produce announcements which must be broadcast by broadcasters. The next is interesting. It is required that both sides of the argument be presented during current affairs coverage of the referendum. We have added the proviso, "except where this is impractical". This applies both to guests and audience members on any programme. The third is a prohibition on party political broadcasts during referendum campaigns. Such broadcasts are permitted during general and other elections but not referenda.

Some other points are worth bearing in mind. Independent broadcasters have no obligation, either statutory or contractual, to include coverage of elections. An independent broadcaster can take a decision not to provide any coverage. In practical terms, that does not happen because they have a news and current affairs requirement, for which coverage of polls and referenda will count. Even if they do not carry election material — some music stations carry very little — they must carry Referendum Commission announcements.

There is no requirement in the BCI guidelines to ensure equal time. That is an important point to which we will return. There is a requirement for fair and balanced coverage of opposing views but there is no requirement to ensure equal time. That requirement also applies in other jurisdictions. I think of our colleagues in France who have huge monitoring staffs with stop watches checking the time given to one side and another. That is not the case here. The requirement here is to ensure equal treatment and fair and balanced coverage but not equal time.

These guidelines apply to BCI licensed services, not RTE services. In practical terms, the guidelines operated by the BCI and RTE are virtually identical. In previous times there were some slight differences but that proved a little complicated to operate in practice. For that reason, we have moved very close to one another. Under the Broadcasting Bill which will be enacted before the end of this year, the responsibility for issuing guidelines will rest entirely with the broadcasting authority of Ireland which is being established under the Bill.

Let me make a couple of short points on compliance. It is assessed on a complaints basis. The Broadcasting Complaints Commission takes and addresses any complaints received from members of the public or any individual who wishes to make a complaint. We also do sample monitoring within the Broadcasting Commission of Ireland. We monitored, primarily, final day coverage during the moratorium, as that had been the issue which created most controversy in the past.

During the course of many referenda and elections it is our experience that the guidelines operate effectively. Few complaints have been received or breaches of the requirements noted. In general, where complaints have arisen, they have been in respect of breaches of the moratorium prior to the national poll.

An interesting observation was made of the Lisbon treaty referendum campaign. There were approximately 14 or 15 complaints, all of which related to the requirement to ensure balanced coverage. It is unusual to receive complaints. Interestingly, 95% were from supporters of the "No" campaign who argued that the "Yes" side had received too much coverage. None of the complaints received was upheld. On the basis of the evidence, the Broadcasting Complaints Commission was satisfied that there had been fair and balanced coverage for all sides. As regards the BCI, there were queries relating to advertising directed towards the political aspect with which we had to deal. No issues arose from them. In general, compliance by broadcasters has been strong and complaints have been few and far between.

We can debate this issue further with members of the committee, but from our perspective, the current regulatory regime works well in the context of the statutory regulations. If we have a statutory regulation that requires fairness, the regime works well. If one were to change this, it may be that statutory change would be the way to go. That may be what is envisaged. Other practical alternatives may be possible, given the fundamental requirement for balanced and impartial coverage. It is not that we are not open to looking at other approaches but that they would have to be practical, transparent and fair and in line with the current statute, unless there is a desire to make any changes to it.

Chairman

What has been offered is very substantive. It is important, if there are questions, that they be answered.

Deputy Jim O’Keeffe

We will be continuing the discussion by questioning others attending today. I thank everybody for attending because we are touching on very serious and important issues. The general view of the committee is that it is important that we examine how information is imparted to the public during referendum campaigns. We are exploring the issues and examining the statutory and other requirements and how they are being interpreted.

As far as the BCI is concerned, what is sought is fair, impartial, balanced and objective broadcasting of any referendum issue. It emphasises that this does not involve a requirement to ensure equal time for both sides. I seek further clarification. If somebody on either side of a campaign can show, by counting the minutes or however it is done, that there was not equal time, how is the issue of fairness and impartiality assessed?

Mr. Michael O’Keeffe

It is for the Broadcasting Complaints Commission to make a determination. The onus is on the broadcaster of a current affairs programme to adhere to the guidelines and ensure different sides of an argument have access. As an example, Matt Cooper's programme "The Last Word" on Today FM must ensure in dealing with an issue that there is an opportunity for both sides to put their point of view and that both sides will have access, but that does not necessarily mean that if one side has ten minutes, the other side must also have ten minutes. If the side that gets less time complains about unfair treatment, it must make the case to the independent Broadcasting Complaints Commission which will adjudicate on the matter. As long as the opportunity is provided within programming to make the case for both sides, our view is that this satisfies the fairness and balance requirement.

Deputy Jim O’Keeffe

Is it the view of the Broadcasting Commission of Ireland that the legal requirement has nothing to do with equality as long as an opportunity is given to both sides of the argument? The statute and guidelines are to that effect.

Mr. Michael O’Keeffe

The statute is not specific. It does not state that side A must get ten minutes and side B must get ten minutes. It states there must be a fair and balanced approach to this and each side must get an opportunity to make its case.

Deputy Jim O’Keeffe

If a totally outrageous and unsustainable case is made for one side or the other, is it necessary to give air time to the ventilation of those views? Second, what is the position from the point of view of responses by responsible people who want to show that such views are without foundation.

Mr. Michael O’Keeffe

Let me make some general points. It is left to the discretion of the broadcaster to apply all the codes, including codes of programme standards that are in place if views are articulated by a group that may breach other codes.

We are talking specifically about the guidelines for a referendum, but if there are other elements being broadcast that are against other codes, the broadcaster can argue that he or she will not breach a programming code to allow a crazy view to be articulated. The broadcaster has control of the situation. He or she is doing the broadcasting and will take a view and make a judgment on whether something that is being articulated is off the wall. Clearly the person who was on the programme can make a complaint that he or she was treated unfairly to the independent Broadcasting Complaints Commission and that complaint will be judged on its merits. These are guidelines and the onus is on the broadcaster. Let me repeat this important point that editorial responsibility rests with the broadcaster.

Mr. Willie O’Reilly

I thank the Chairman and members for inviting us here today. I represent the Independent Broadcasters of Ireland, which is essentially all the radio stations that are not in the RTE suite of stations, that is about 27 in total. The stations that come under the Independent broadcasters of Ireland are the most listened to group of radio stations, with about 63% of what is known as the radio share.

I am delighted to come before the joint committee to make a contribution on the referendum and pick up some of the points already alluded to by Deputy Jim O'Keeffe. I think the background to the issue has been touched on by Mr. Michael O'Keeffe so I might speed through it.

The broadcasting legislation sets out the template and the authority for journalists. It puts a requirement on each to be fair and impartial in his or her dealings in regard to political commentary, current affairs and the coverage around referenda.

The Constitution provides for holding a referendum but it does not give us guidelines or sensibility about how we should conduct ourselves in the period leading up to it. The Coughlan judgment was a most significant case for journalists. Clearly in this case the Supreme Court has stepped into our territory and given an indication as to what the appropriate behaviour should be. I am not a lawyer but my reading of it is that where there is uncontested debate, which could be the case in regard to party political broadcasts, there must be equal representation. That seems logical, but it does not help because a referendum is a very different scenario. What has happened is that the interpretation in regard to uncontested debate among broadcasters and journalists alike has come down to 50:50 in terms of equal time on air.

As a former broadcaster, I query and explore this. IBI understands what Mr. Michael O'Keeffe has said, but we live in an era in which metrics are very important and the stopwatch is critical in determining what is equal treatment. My feeling is that the 50:50 requirement has put broadcasters in a straitjacket. I would not say they have gone for the easy option, but they have gone for a way of measuring that does not necessarily reflect the complexity of the debate or the representation on either side. The mere fact that a question is put to people in a referendum does not mean that genuine balance and effective scrutiny is given by ensuring equal time on air. Real balance may require that one side is subject to more scrutiny than another and the stopwatch has a perverse effect on the whole process. I should say here that I am not referring directly to the referendum on the Lisbon treaty because obviously the people on the "No" side and those on the "Yes" side had absolute entitlement to have their views represented. It is the quantum of time they received.

The perversity of it is that weak arguments can gain traction by being repeated often, and we know that simple repetition creates an echo which is then magnified in the media. Then what happens, and in some sense seems to have happened, is that charismatic leaders become fêted by people in the media because journalists seek the people who can best represent a viewpoint. These people are propelled into a situation where they are given considerable media exposure for their views, yet we do not know how that corresponds to the representation of the public viewpoint. A strange thing is that the unintended consequence of the Coughlan judgment has been — I refer to the referendum on the Lisbon treaty — that where there is a small number of parties on one side and a broad range of representation on the other side, the "No" arguments from a small base get amplified by the requirement for 50:50 representation in the media. That seems not to be what the Supreme Court really intended.

I have been mulling over this. Broadcasting is very important, but handing over 50% of air time to people just because they happen to be there and to have a voice is a mistake. It is something we need to explore. Otherwise we are empowering a crank's charter where anybody, once they adopt a position, can be put on air and have their views represented. I say this because we know that a large number of the Irish population — the reflections afterwards suggested it was as high as 70% — found that the broadcast media were most influential in their coming to a decision.

It is time for a reappraisal of the codes governing the referendum. The BCI or the new broadcasting authority could be charged with it, with the appropriate legal experts to properly interpret what the Supreme Court judgments imply for journalists. The aim is certainly not to subvert the court's judgment but to give guidance to journalists and broadcasters alike on how best to fulfil the professional onus that is implied and put on them by the Broadcasting Act.

Chairman

Thank you, Mr. O'Reilly. That was very thought-provoking. I invite Deputy Brendan Howlin to ask a few questions.

Deputy Brendan Howlin

It was thought-provoking. The written submission from the Independent Broadcasters of Ireland, IBI, is even more so. I welcome all the submissions. This is a debate we need to have in public. Let me quote this extract from the written submission, which Mr. O'Reilly did not articulate:

The caricature of every coup in a banana republic is that the first thing the insurgents do is to seize the airwaves. In effect this is what the Coughlan judgment does. It hands 50% of the airwaves over to any insurgent group regardless of the merit of their argument, the motivation of their movement or the size of their democratic mandate.

He then goes on to say: "It is a cranks' charter."

This is very strong stuff. Let me deal with some of the issues that are important for working politicians in order to see Mr. O'Reilly's attitude to them. It is clear from the legal analysis the committee has received that the Coughlan case does not apply the stopwatch and the Broadcasting Commission of Ireland does not require a stopwatch. Where does the stopwatch approach come from? Is it laziness that equality somehow means timing people? Why is it the general norm?

A question asked initially by my colleague, Deputy Jim O'Keeffe, was where was the broadcasters' other responsibility under the general broadcasting code to ensure truth and why were discernible falsehoods not challenged in the course of a political debate. Obviously some things are assertions that people cannot prove or disprove and it is the people's choice to decide, but do the delegates believe that responsible journalists have a responsibility to tackle some assertions that are clearly irrelevant to the debate that is before the people at the given time and to present arguments to people in a balanced way that requires an element of discerning truth?

I am interested in Mr. O'Reilly's comment that: "Broadcasters are required to hand over 50% of the time". Who states that broadcasters are required to hand over that time? Surely there is a more substantial responsibility on broadcasters than that? As a politician I know that sometimes it is in the interests of an argument to confuse, but is it not the broadcaster's responsibility to give as much clarity to issues as possible? Where there is a lack of clarity outside the campaigning platforms, does Mr. O'Reilly think there is a responsibility on the broadcaster as part of its public duty to objectively present an independent analysis?

Mr. Willie O’Reilly

There are many questions, but let me pick up on a key one of where this interpretation came from. I must say that you are responsible for it.

Deputy Brendan Howlin

Personally or the Oireachtas?

Mr. Willie O’Reilly

The Deputy will understand what I mean. Referenda do not come around very often and so one looks for the template for behaviour, the nearest thing being a general election. I am sure other Deputies will know how important the stopwatch is in a general election and how live the telephone can be around newstime and public affairs coverage. I do not want to be an apologist, but members can understand why a journalist might presume that is appropriate behaviour.

Deputy Brendan Howlin

On that first point, in a general election the stopwatch is linked to a democratic mandate. My party, unfortunately, does not get the same amount of time as the Fine Gael Party or the Fianna Fáil Party. That is not the stopwatch one applies to referenda. Why would there be a variation of it?

Mr. Willie O’Reilly

That is the reason I am here to discuss this issue. I am positing the suggestion that we need to explore why this has happened. I am suggesting the reason it has happened is that good journalists have looked for a template to adopt and the Coughlan judgment states that equal time should be given in uncontested debate. Let me point out that journalists come under a great deal of pressure. If I put on my Today FM hat, for instance, we would have been careful to ensure that views were represented while the debate was ongoing so that different people got representation. However, we judged that a one on one interview with the Taoiseach was appropriate and we came under severe scrutiny from the "No" side who stated this was not acceptable. We took the view that it was acceptable and we did an eight to eight and a half minute interview and were unapologetic about it. We struggle with this ourselves, which is why I am here today.

On one occasion we had an outside broadcast and on one side were the duly elected representatives of the country and, on the other, three people, one of whom had been previously elected by the public and neither of the others had been. Given the nature of that type of debate, it is very difficult not to have some form of metric, and the stopwatch is a simple one.

Deputy Brendan Howlin

Could Mr. O'Reilly comment on the responsibility of journalism to seek the truth and challenge untruths?

Mr. Willie O’Reilly

There is that responsibility and it is done regularly. The point is that journalists are somewhat unprepared for this situation because it does not arise very often.

Deputy Brendan Howlin

Could Mr. O'Reilly comment on the confusion issue, given that the conduct of a referendum does not simply involve giving air time to the contesting voices but objectively putting forward the journalistic take of professional journalists on the merits and demerits of each of the cases?

Mr. Willie O’Reilly

That is intrinsic to the work that broadcasters and journalists do. When one looks at any individual broadcast, that is what happens. However, when one bulks it up, it is the effect of the repetition and the echo which distorts everything. In the hypothetical situation where everybody in the country wanted a "Yes" vote and only one person wanted a "No" vote, that single person, in the system that operated recently, would get 50% of the air time. We would all say that is utterly ridiculous.

Deputy Brendan Howlin

I wish to ask a final supplementary question because it is related to that. Would the nature of the issue determine the broadcaster's attitude? If, for example, the referendum proposal involved doing something intrinsically right, could Mr. O'Reilly see the broadcasters giving the same time allocation to an argument that was patently absurd and damaging? I am taking an abstract example now but the issue is fundamental.

Mr. Willie O’Reilly

It is an abstract point. I hope we will not get to that situation. It could happen. Journalists are challenged because, as I have posited, there is a conflict between the need to be fair and impartial and what we seem to have adopted in the 50:50 stance. It could be dangerous. At its most ridiculous it could be a danger to our democracy because who is to know what the agenda of these people really is? They are not elected. Have they a hidden agenda that, in our questioning and in our attempts to get to the truth, the media has not been successful in extracting and have we, by default, set something amok in the process that we never intended?

Deputy Michael Woods

Has the IBI had recourse to the Referendum Commission in respect of the truth it wants to broadcast? Statements which were patently untrue were put out at the time and that was a major problem. The Referendum Commission existed independently to deal with that. Did journalists have recourse to it when they found themselves faced with that kind of situation?

Mr. Willie O’Reilly

No, they did not.

Deputy Michael Woods

Journalists did not have recourse to the Referendum Commission but, on the other hand, I believe the commission had a duty to take an interest if it believed there was an imbalance or that something was not right.

Chairman

It was agreed that the members present would ask one supplementary question and then we would discuss the general question. I will immediately come back to Deputy Woods at that point.

Ms Elaine Geraghty

I will try not to go over ground already covered, but there are similarities in some of the things we have to say. I thank the committee for inviting Newstalk. We are delighted to contribute.

Newstalk has been in operation since 2002, originally in Dublin but nationally for the past couple of years. Our business is all about talk, current affairs and news. It is different from many of the other independent stations because much of their output is music. Whether we are involved in a general election or a referendum, this is our business every minute of the day. It is pertinent that we are able to make a contribution to this forum because we face challenges every day, regardless of whether we are in this environment. Since 2002 Newstalk has covered three national referendums, the referendum on the Lisbon treaty this year, the referendum on citizenship in 2004 and the referendum on the second Nice treaty in 2002.

While nobody would question the basic principles of fairness, equity and balance, we believe there is an urgent need to define, or perhaps redefine, what fairness, equity and balance are in a referendum context and in a political context. It is reasonable to question the workings of the present mechanisms designed to achieve balance. In the most recent referendum the balancing mechanisms may inadvertently have resulted in a distortion of the balance they were intended to deliver.

The referendum on the Lisbon treaty proved especially challenging for us as a broadcaster. I am probably going to duplicate some of what Mr. Willie O'Reilly and Mr. Michael O'Keeffe have said, but we faced a situation, like all stations, where the major political parties with the exception of Sinn Féin, business organisations and many other interested groups declared themselves in favour of a "Yes" vote. What I will call the 50:50 requirement obliged us to give what we believed was equal air time to both sides of the argument. It meant that every time Newstalk featured any one of the myriad political or business figures supporting a "Yes" vote, the select few interests advocating a "No" vote were given equal air time. It meant that a select few organised groups, such as Libertas and Sinn Féin on this occasion, ended up providing the bulk of the balance or the biggest share of voice, with the broad spectrum of Fianna Fáil, Fine Gael, Labour, the Green Party and the Progressive Democrats, a range of business groups, some trade unions and others comprising the "Yes" side.

At a practical level, to comes back to what Deputy Howlin said; the stopwatch was never used in a lazy manner. It is challenging and we try to be fair and balanced at all times. It is an interpretation of what 50:50 is but regardless of whether one is timing the contribution and ensuring the air time is equal as much as possible, all those other rules apply whereby the presenter and the producer are in charge of ensuring the truth is there, that views are challenged and that it is fair and balanced at all times, regardless of whether we are talking about the Lisbon treaty or anything else. At the end of a live broadcast day we go into repeat programming and it is ensured that when a whole other audience post-midnight are tuning in for what went out live during the day, they are getting balanced and fair views at that time. We are confident that we met our contractual obligations with the Broadcasting Commission of Ireland to be fair and balanced, but it certainly is challenging and perhaps we could have a little more discussion about it once this is through.

We would like to take this opportunity to highlight the issue of the moratorium which Mr. Michael O'Keeffe touched on briefly, governing broadcast media on the eve of a referendum. We would strongly encourage legislators to re-examine the entire area. It seems a little nonsensical that broadcasters are precluded from engaging in discussion of any description on a referendum when other media such as print and on-line are free to do so. Given the predominant role played by the Internet in modern politics, for example, a television and radio moratorium would appear punitive, archaic and, ironically, unbalanced. As with most other outlets, Newstalk places greater emphasis on its on-line presence. It is a natural extension of any media brand nowadays. It poses problems. How, for example, does the constitutional requirement for equal coverage of a "Yes" and "No" viewpoint impact on the content of a radio station's website presence? We are involved in blogs and podcasts. How can we feasibly place free downloadable podcasts in a moratorium context? We would be interested to hear the views and intentions of the committee in this regard.

Text messaging is a major phenomenon and one in respect of which it is very difficult to ensure balance and control. Many programmes are driven by the text content that comes in. It forms the basis for some of the editorial ideas that are broadcast. When it first emerged, Newstalk noticed a text campaign that was orchestrated by one specific political interest regarding a particular point of view. It was during the second Nice treaty referendum. It was noticed at an early stage by the station's production teams. We decided we had no choice but to be selective in reading out particular views in order to achieve a required balance. That is a challenge every day.

A final point in relation to the coverage of referenda is the issue of political advertising and restrictions that currently apply to broadcast media, especially commercial broadcast media. We believe it is another example of the inequity that exists between governance of print and broadcast media in Ireland and we urge that legislators should include this in any analysis and reform of referenda and general election coverage.

While the obligation to adhere to constitutional requirements has not to date been too much of a drain on our resources, it has been a challenging exercise and warrants a comprehensive review.

Senator Alex White

I thank Ms Geraghty for the interesting submission before us. In the context of the Coughlan judgment, it might be no harm to remind ourselves exactly what the Chief Justice said in that case. Briefly, he said that RTE was "obliged to hold the scales equally between those who supported the referendum [that was the divorce referendum] and those who opposed it". Some of the other judges made different comments. Some commentators have suggested that they came to perhaps slightly different conclusions, or the same conclusion by different means. That is the quotation that most of us remember from that case. It may well be the basis and motivation for our old friend, the stopwatch. It would seem to suggest that equality in terms of duration is required, as opposed to the kind of equality being canvassed by Mr. O'Reilly, which a somewhat more subtle determination of what equality might consist of.

Newstalk's presentation concentrated more on the practical effects of this and how it is implemented rather than any particular objection in principle, which we certainly did hear from Mr. O'Reilly. I wonder if I am right that it is a commentary on how it is implemented rather than a request to us to address it. Ms Geraghty does say that nobody would question the basic principles of fairness, equity and balance. Newstalk thinks there is an urgent need to define or perhaps redefine what fairness, equity and balance are in a referendum context and a political context. That is as far as she would go in terms of the issue of principle. Perhaps she would deal with that aspect.

There is an element of self-reflection here for all of us, politicians and everyone else. I am a member of a political party whose leader found he was getting a lot less coverage than politicians who were advocating a "No" vote, who in some cases were the leaders of very small organisations or very often not the leaders of any organisation. As a politician I understand the context in which we are dealing with this. We all have to understand that we cannot seek to adjust the legislative environment or even the constitutional context to seek to achieve particular political outcomes. That would be absolutely offensive to our sense of equality in the Constitution. We have to be very carefully. My first question is whether Ms Geraghty agrees with that. There does not seem to be any objection in principle. She referred to the moratorium the day before polling. I find myself in agreement with what has been said in respect of that. However, there is the objection that a point could be raised at the last minute, say at 6 o'clock the night before, and there would be no opportunity to challenge it.

The Broadcasting Commission of Ireland makes the point that in the case of referendum coverage there is a requirement that both sides of the argument be present during current affairs coverage, allowing for certain exceptions. I am a little surprised that this is believed to be the best way to ensure balance. It may be one way, but surely your journalists need to be sufficiently trained and expert, as many of them are. Media have to ask if their people are sufficiently well informed and aware of the issues. I am not saying they are not, but it is an issue to be considered. Can they challenge people without relying on the fact that a person representing the opposing case is in the studio? It is no answer for the journalist to sit back and let them have a go at each other. It is the responsibility of journalism to go after what is perceived to be the crank.

Mr. Garrett Harte

We fully support what Willie and the IBI have said. We may not have put it as forcefully in our presentation. Newstalk coverage is wall-to-wall news and current affairs. From 6.30 a.m. throughout the day our challenge was to ensure balance. There is a need for an open discussion on what equal treatment actually means. The stopwatch is a practical means for Newstalk. On any given day, we literally placed a white board in our newsroom and as each programme finished its broadcast the minutes allotted to the "Yes" side and the "No" side were marked up. On any given day, the "Yes" campaign could have had three press conferences back to back, and we could end up having one full day where 80% of coverage was for one side. We took a decision that the most practical way to ensure equal treatment was a stopwatch and 50:50 coverage was given to "Yes" and "No". On many occasions it served the listener better that there was a one-on-one interview with a "Yes" supporter or a "No" supporter. Listeners are intelligent enough to assess the facts and make up their own minds.

Ms Elaine Geraghty

It is not just a stopwatch which clocks that 50% of coverage is given to each side, regardless of subject matter. It is not for us to decide whether a particular matter should be a referendum issue. It is our job to cover what is happening. It is down to the presenter, the broadcaster, to recognise that he or she must achieve balance and fairness in any interview and he or she has a role to play. It is not for them to sit back. This is our job, 365 days of the year, and we do it very well. I understand why the moratorium exists and I take the point that something might change in a last dash for the line. We are asking for a level playing pitch. It is difficult, particularly when the web comes into it.

Chairman

I welcome Mr. Peter Feeney, secretary to RTE's referendum steering group, Mr. David McMunn, TV3 director, and Mr. Andrew Hanlon, director of TV3 news. We are grateful to them for attending and taking the time to assist us in our deliberations. Members of the committee have absolute privilege which does not pertain to witnesses.

Mr. Peter Feeney

I thank the committee for the invitation. I was head of current affairs for most of the 1990s and in charge of the coverage of two general elections, two referenda and one Presidential election. For the past seven or eight years I have been secretary to our election and referendum steering committee. I have been steeped in elections for 20 or 30 years and, therefore, have vast experience of how RTE interfaces with politicians during elections. One of my tasks is to act as a conduit within RTE, whereby lobby and pressure groups can contact the organisation during elections or referenda to say they are unhappy or raise concerns about our coverage and so on.

I can see the dilemma in any election or referendum about how important it is to get one's message across on the airwaves and that broadcast journalists take it seriously. In my experience RTE takes nothing more seriously than elections and referenda. We make a maximum effort to provide fair, balanced, impartial and objective coverage and where issues arise during a campaign, to address them immediately in order that by the end of the campaign all the political parties, lobby and pressure groups and critics can say the coverage was fair on RTE radio and television and on-line.

I have circulated my presentation and refer to a number of issues that came up earlier. RTE is independent of the BCI and self-regulated for elections and referenda. This will change under the new legislation but we sing from the same hymn sheet as the BCI regarding coverage. Essentially, RTE and every other broadcaster have the same legal requirements and in terms of codes. We carry a considerable range of single interviews during referenda. It is not only a question of having debates. We will interview, for example, Mary Lou MacDonald on her own on the "News at One" one month before the election. That means that on that day ten minutes on the programme is given to the "No" side but this will be balanced earlier or later by an interview with somebody on the "Yes" side. We welcome the 1976 legislation which provides for a balance to be achieved in one or more related programmes. That is very important, as every programme cannot be a 50:50 debate.

The issue of a journalist's ability to challenge what is said in a referendum was raised. We organise training seminars in RTE before a referendum on what the referendum is about, the main issues and so on. All our journalists are trained and encouraged to do their own work on understanding the referendum in order that they can challenge assertions made by either side. It is not just a question of going to the other side and saying, "How do you respond to that?" That is the easy and lazy way of chairing a debate. If a journalist is doing a single interview, it is his or her responsibility to challenge what is said. During the recent referendum, where our journalists challenged what was said, we were immediately accused of being biased. If our journalists said, "That is not true" or "Here is an argument against what you are saying," the accusation was immediately made that they were on one side or the other. All the accusations in this year's referendum tended to be that our journalists were on the "Yes" side because when they challenged some of the assertions made on the "No" side, the "No" side jumped down our throats and said, "You are biased. You are in favour of the 'Yes' side". It is a journalist's job to get at the truth and that involves challenging what he or she hears on occasion.

We also tried to inform our audience on radio and television about the issues behind the referendum. For example, we had our Europe editor, Seán Whelan, back in Dublin for the three weeks of the campaign to go on "Morning Ireland", "Today with Pat Kenny" and the "News at One" to explain what were the issues. It was a single report by the journalist on his own. His colleagues such as Tony Connolly did the same to try to explain the referendum. We did our best to inform the public as to what were the key issues in the referendum. We provided space for politicians, lobby groups and pressure groups on both sides to debate and we carried a range of single interviews.

An issue in the referendum this year was that all the major parties were on one side. We addressed that by looking at those campaigning on the "No" side and made as good an effort as we could to apportion who we would invite in on the "No" side. As most of those on that side were not elected representatives, that inevitably meant that on occasion elected representatives would be lined up on one side and entirely unelected people on the other. The alternative was for us to give the one party campaigning on the "No" side an excessive amount of space. The party ended up getting considerable space but not an excessive amount.

Following the referendum, we examined our figures for apportioning space on both sides. With regard to principal opportunities on the "Yes" side, Fianna Fáil had 42, Fine Gael, 23, the Labour Party, 14, the Green Party, four, the Progressive Democrats, three, and Peter Sutherland, Barroso, Marian Harkin, Alan Dukes and so on, one. On the "No" said, the largest group was Sinn Féin, the second largest was Libertas, the third was broadly left — the people's movement, the Socialist Party, etc. — the fourth was broadly right — Kathy Sinnott, Senator Ronán Mullen and so on — and the fifth group comprised 11 others. There were, therefore, five groups on the "No" side with few public representatives among them. The opportunities for the "Yes" side were roughly proportionate to party size.

Deputy Howlin raised the point that his leader did not get a sufficient look-in but a ratio of 42 Fianna Fáil, 23 Fine Gael and 14 Labour Party opportunities is not bad. It may not be perfect but it is not bad.

Deputy Brendan Howlin

I made the point in a different context. In a general election, my understanding is that time is allocated on that basis. That was the justification for using the same yardstick in the referendum but it was not used because if it were, 98% of the opportunities would have gone to one side. That was not a complaint relating to the Labour Party leader.

Mr. Peter Feeney

I was asked what would happen if everybody was on the same side in a referendum campaign. It is an issue which could easily come up. There could be a referendum shortly where 98% of the people are likely to vote "Yes". RTE would not hold debates where we give equal time to the "Yes" and "No" sides when common sense says everybody is virtually on the "Yes" side. That would be a distortion of the reality. In those circumstances, we would have to curtail our level of debate coverage but we could still continue to do all our reporting as before. We would have less coverage if there was not a common sense, reasonable argument on one side.

There was clearly a good argument on both sides in this year's referendum and, therefore, it was not difficult to get people arguing "Yes" and "No". The issue, which was difficult, was treating unelected people as equal to elected people. I do not have an alternative and it is a model we have followed for almost 50 years, which has stood the test of time very well.

Deputy Denis Naughten

Will Mr. Feeney outline the statistics for principal opportunities for Sinn Féin and Libertas?

Mr. Peter Feeney

The figures refer to principle opportunities and are only indicative, rather than providing names. I have Sinn Féin here at 27, Libertas at 25, the People's Movement — Patricia McKenna, McGrath, Gregory, etc. — at 12, the Socialist Party at 9, Cóir — Richard Greene, etc. — at 7, People Before Profit Alliance — Richard Boyd Barrett — at 2, Peace and Neutrality Alliance at 3, the Campaign against the EU Constitution, CAEUC, at 1, Shane Ross at 1 and there are a lot of other 1s, like Colm McCarthy, Dana Rosemary Scallon and Jim Power.

Deputy Brendan Howlin

What side was he on at that stage?

Mr. Peter Feeney

A fair question.

Chairman

Mr. O'Reilly suggested that "weak arguments gain traction with repetition" if they get a certain amount of focus. Charismatic leaders are feted by the media , the "No" side arguments are amplified because of the 50:50 provision and it is sometimes the populous, vacuous type of argument that is attractive despite the fact it may be irrelevant. To me, television is the cause of this rather than radio. Is that a fair assessment?

Mr. Peter Feeney

What I might try to do is to throw that question back at the Chairman. Primarily in debate, if someone says something untrue, inaccurate or a distortion, the other side is offered an opportunity to rebuff it immediately. Much of programming, both on radio and television, is debate. Therefore, if somebody on one side says something which is manifestly untrue and the chair of that debate just goes back to the other side and asks it to respond, that is the best opportunity to respond. On several occasions, we were accused during the referendum of being biased because our journalists challenged some of the assertions being made by some of the people arguing in the referendum. Our journalists accepted they had a responsibility to say that was not true and to provide the facts. The primary source of the argument is the other side, but it also comes from the journalists. This would be no different for Newstalk or Today FM. Their journalists would also challenge such assertions.

Deputy Brendan Howlin

Is that not a fundamental flaw? Take, for example, the most recent referendum. If I can make an assertion that is patently untrue and the opposition's time must be used to debunk that, it never gets its agenda put forward. The debate is set by one side. With the stopwatch on, the defence never can put a positive case because of having to rectify fact.

Chairman

Why was that provision not kicked out of court by journalists initially?

Mr. Peter Feeney

I think the answer to that is that if an assertion is made which is untrue, either the other side or the journalist can challenge it. If the politician on the other side spends all of his or her time rebutting assertions without the opportunity to put across his or her own message, there is a question to be asked about the politician. Politicians should rebut the other guy quickly and then get on to their message. They should not allow the other side determine the agenda all the time. That seems to be the message.

Chairman

I am going to watch TV3 now. We will take that reprimand.

Mr. Andrew Hanlon

I thank the committee for inviting us here. We sent some information to the committee in advance which members may have had a chance to look at. The material provides some statistical analysis which I will go through quickly so as not to bore members with too much detail. The idea of providing these charts is so members of the committee can see the media landscape in Ireland as far as television is concerned and how this plays out where referenda or elections are concerned. They show, too, the effect, for example, that moratoria have on Irish broadcasters and the fairness and balance provision.

I will run through the charts quickly. The numbers on page 1 are from Nielsen, the official ratings company subscribed to by both RTE and us, TV3. The first chart shows the millions of viewers that tuned into television during the month of October 2008 for a minute or more. TV3 is there with 3.72 million viewers, RTE1 with 3.88 million, RTE2 with 3.81 million and then the BBC and other terrestrial stations that can be seen in this jurisdiction with the BBC1 with 2.9 million, Channel 4 with 2.83 million, the BBC2 with 2.78 million and UTV with 2.46 million. The figures for two of the bigger satellite broadcasters are Sky 1 at 2.45 million and Sky News at 1.91 million. These are the viewers that tune in for a minute or more, in this particular case for the month of October.

The chart on page 2 is a chart of news and current affairs output. These are TV3 estimates, not from Nielsen data. These show the amount, in hours, of news and current affairs coverage that is available from the various terrestrial broadcasters. We can see TV3 has 26.3 hours per week, RTE1 has 17.5 hours, RTE2 has 1.9 and TG4 has 6.5 hours.

On page 3 we look at TV3's news and current affairs coverage and the audience levels tuning into the programmes we provide. "Nightly News with Vincent Browne" reaches an audience of 267,000, "News at 5.30" reaches 261,000, the morning show "Ireland AM" reaches 204,000, the "Political Party" reaches 114,000 and "Midday" reaches 58,000.

In the chart on page 4 we set these figures against those of other broadcasters that can be received in this country. For example, we compare how "News at 5.30" performs against other programmes like "Channel 4 News", Sky's "News at Six", ITN's "Evening News" and "UTV Live". As members can see, there is quite a variation in the numbers.

I will skip through the next two pages and get to two that are pertinent to this discussion. We have made the point that trying to get politicians to engage in debate on some our programmes was, at times, very difficult. It was exceptionally difficult to get Cabinet Ministers, despite repeated requests. There is no question that getting senior politicians makes a big difference with regard to getting a message out.

On these pages we are looking at the crossover between the television audience we have and the people who voted "No" in the Lisbon referendum. We know that in the referendum some 56% of females voted "No". That figure comes from the Eurobarometer report of June 2008. If we match the profile of that 56% against all television viewers, it comes in at 54.3%. For RTE viewers it was 59% and for TV3 viewers it was just shy of 62%. This means we outweighed ourselves as far as female viewers were concerned and 56% of them were the ones that voted "No" in the referendum.

On page 8 we can see the percentage of adults, aged 25 to 54, who voted "No". The result according to the Eurobarometer report was that 59% voted "No". The profile against all TV viewers is 54%, with RTE1 at 44.8% and TV3 at 55.1%.

On the last page we see again from the Eurobarometer report that 74% of manual workers and 56% of unemployed voters voted "No". The result as we know was 74% of those groups voted "No" but against total TV the profile is 57%. With RTE1 it is 56% but with TV3 the profile was 61.5%. Therefore, TV3 has a lot of the "No" voters as viewers. Next time round, if there is a rerun of Lisbon or any referendum, we would welcome it if politicians — my colleagues from the independent broadcasting sector have said this quite eloquently — sat up and took more notice of the independent broadcasters in the country.

I will make a few more points reflecting what my colleagues have said about the equal airtime issue and the fairness and balance issue. It is up to broadcasters to ensure there is fairness and balance in every broadcast we transmit on the national airwaves or the local airwaves as the case may be. The BCI may not specifically prescribe the stopwatch mechanism, but that is what broadcasters need to do. We need to be very careful. When Michael O'Keeffe from the Broadcasting Commission of Ireland washes his hands and kicks it off to the Broadcasting Complaints Commission, it is all very well and good to do so. However, the problem is that if a broadcaster is the subject of a complaint and that complaint is upheld by the Broadcasting Complaints Commission, the broadcaster can receive an endorsement on its licence. An endorsement being placed on a broadcaster's licence has a material effect on its business and what it ultimately may be worth further down the line. That is a very important point.

There needs to be a better system. The stopwatch is cumbersome and very difficult. Mr. Garrett Harte from Newstalk radio spoke about having a whiteboard in his newsroom. We have an electronic log in ours, which sounds very fancy. It is basically somebody working with an Excel spreadsheet, but it is the very same principle. That is what needs to be done. The timekeeping is required because we need to protect ourselves against complaints. We are unlike RTE, which does not get endorsements on its licence. Commercial broadcasters are there to make a living. They have shareholders and are run as businesses. RTE is a completely different model. If there is a complaint to the BCC, it can simply say, "Well, that's fine" and put it in the bottom drawer. It is done and dusted. It does not really need to take it too seriously and certainly not in the manner or with the concerns that commercial broadcasters would.

The moratorium on broadcasters immediately in advance of elections and referenda is completely outdated and outmoded. It is a ridiculous blunt instrument to have in place for broadcasters in this day and age because there are hundreds of satellite television channels available here. With Sky, Chorus ntl or any other systems that are available, at the flick of a button with most of these packages the viewer can receive CNN, Sky News and many other news channels. Undoubtedly if there is a rerun of the Lisbon treaty referendum, while Irish broadcasters will be muzzled with this blunt instrument of the moratorium, without question all those foreign broadcasters that are received on satellite and cable television in this country will be blasting in news stories about the referendum which may break within 24 hours of polling commencing.

Closer to home, national newspapers, which are entirely unregulated, can print whatever message they desire. The headline "It's payback time" on the front page of the Irish Independent a number of years ago comes to mind. For independent electronic broadcasters the moratorium makes no sense. We would lobby Government and the Legislature to do away with it because it serves no purpose. We have the Internet, newspapers and satellite broadcasters, which are all available to the electorate on the day of polling. While the intentions of the moratorium may be very good in order to allow people to reflect before going to vote, they cannot reflect without being bombarded by channels from outside the country and getting messages from newspapers and the Internet.

TV3 and independent broadcasters might claim we should be allowed to carry political advertising. Why would we not as commercial broadcasters? There is a very good reason for allowing political advertising in this country, as it is in the United States. Advertising can engage people who do not want to engage with or hear the debates that take place in other media. Political advertising has an effect and can engage people who do not otherwise engage with traditional media. I believe it serves a useful purpose also.

Deputy Michael Woods

Many of the issues affect all those present. I will not suggest that while we failed miserably, Mr. Hanlon also seems to have failed miserably to get the message across in that most of the "No" voters came from his channel's female viewers. To be more serious, we want to ensure there is balance and that the truth comes out. If things that are patently untrue are said, there must be some means of dealing with those. We have had various aspects of that. A broadcaster does not want to take up either the "Yes" or "No" side and should deal with the issue independently.

Does Mr. Hanlon have any idea what the Referendum Commission might do to assist TV3 in that? How could it assist TV3 in getting across the factual position? We heard how RTE was criticised when it tried to put factual aspects across. I always find Seán Whelan a very level-headed balanced person when talking and he has a deep knowledge of the subject. What could the Referendum Commission do for TV3 or what could TV3 do for the commission to help get that balance? Should there be a better form of communication from the commission during that period? It publishes a document which purports to have all the facts and to be a balanced document. However, that is not how the game is played afterwards. We need a referee to say afterwards, "Hold on a minute, that just isn't true."

It is interesting that Mr. Hanlon mentioned the situation with women in his experience getting a higher percentage, like 56% voting "No". In meeting many women at all sorts of gatherings that they hold normally, one of the things that came up repeatedly with them was conscription. They believed that people would be subject to conscription. Somebody needs to come out with authority to clear up such an issue that is not true. It was said after the referendum was all over. It is quite possible some journalists tried to make some interventions on that and get some ideas across. There must be somebody who can stand for the truth in these situations and be clearly seen. Mr. Hanlon mentioned women in that context and that was very much a factor.

Mr. Andrew Hanlon

It is difficult to answer the question of what the Referendum Commission could do. At the end of the day the Referendum Commission produced its document and held a press conference. I think it got itself into a spot of bother during its press conference because the issues in the referendum were so complex. It prints leaflets that are distributed to homes. It places advertisements in the national newspapers and on radio and television. By and large it does that fairly well. The problem for the Referendum Commission was that the treaty document caused all the confusion. This goes back to Europe. It is up to our legislators to ensure that where issues as complex as those raised in the Lisbon treaty are brought up, the master document must be comprehensible. That is where the Referendum Commission comes in. That is after the fact. I was asked to outline the practical things the Referendum Commission could do to assist broadcasters. The problem is that decisions are taken by producers and journalists on a second-by-second basis during live programming, such as political debates and on-the-day news broadcasts. I do not see what role the Referendum Commission can have in that regard.

Deputy Michael Woods

One could phone a friend.

Mr. Andrew Hanlon

Yes. Mr. Michael O'Keeffe mentioned that he has received many telephone calls. He also spoke about the moratorium. The problem with the moratorium is that broadcasters, producers and journalists are left scratching their heads as they try to decipher what they can and cannot cover during the final 24 hours before polling commences. If the Government announces a major new initiative that has nothing to do with the election or referendum that is about to take place, should the announcement be mentioned on the airwaves? In such circumstances, would the Opposition contend that the Government is electioneering, in effect? Could it be argued that the announcement of an initiative amounts to an attempt by the Government to get the support of the public? In other jurisdictions, exemptions are provided for during election time. Government parties are allowed to engage in news interviews, for example. In the United States, presidential press conferences are not deemed to be an interference with the electoral process and can therefore be covered. Section 3(15) of the US Communications Act of 1934 makes for interesting reading. The committee may want to take a look at it.

Chairman

Does Mr. Michael O'Keeffe want to respond?

Mr. Michael O’Keeffe

While we did not mention the moratorium in our presentation, I would like to comment briefly on it. We have adjusted the moratorium requirements which apply to referendums. In the case of a referendum on a treaty, the moratorium now applies only to broadcasts which relate directly to the content of the treaty. We have narrowed the requirements of the moratorium. It now applies only to the issues which are at stake. In the most recent referendum, the moratorium applied to issues pertaining to the Lisbon treaty only. The moratorium is not provided for in legislation — it is a policy of the Broadcasting Commission of Ireland. We undertook a process of consultation on it three years ago. As Mr. Hanlon has eloquently articulated, some broadcasters believe it should be abolished.

There is an alternative view that supports the retention of the moratorium on the basis that it is a good idea to provide for a period of reflection. It has been argued that if misinformation is broadcast the day before polling, there will not be enough time to correct it before the polls open. We will probably initiate further consultation on the issue in the years to come. Television and radio are powerful arms of the media. That is one of the reasons it is considered appropriate to provide for an arrangement of this nature. In other countries, the moratorium period can be much more extensive than the 24 hours provided for here. We are happy to debate the matter. Sky Television, which is probably the most well known of the other broadcasters, applies the moratorium voluntarily in this jurisdiction. Sky voluntarily does not cover the final day of Irish referendum and election campaigns.

Chairman

I know that the moratorium engages the participants here. It is not in our focus at the moment, however. We will move on to general questions. I would like the witnesses to bank the questions that are asked. A number of members — Deputy Naughten, Senator Boyle, Deputy Jim O'Keeffe and Senator Alex White — will ask questions before I invite the various witnesses to respond.

Deputy Denis Naughten

I thank each of the groups which have made presentations. I apologise to Mr. Michael O'Keeffe for my absence during his contribution. I am not like our Lord — I cannot be in two or three places at the same time. All the contributions were thought-provoking. They will help the committee to decide where it should go from here.

Mr. Hanlon made an interesting and valid point about the EU treaty — the document itself — being double Dutch. It was not accessible to the public. No one could actually read it. When one tried to read it, one could not do so unless one had various reference documents to hand. I do not want to talk about the Lisbon treaty. That debate is over. There is an onus on the European Union, particularly the Commission, to get its act together in that regard. Ireland is the only country to hold a referendum on each treaty. That should not mean that an accessible version of the document should not be available to citizens in all other EU member states. There should be an obligation on the Union to produce a legible document. All domestic legislation is accompanied by an explanatory memorandum to ensure that the contents of even the most complex legislation is set out in plain English.

I thank Mr. Feeney for his contribution, especially the statistics he provided. I would like to delve into the statistics on the Lisbon treaty. Mr. O'Reilly spoke earlier about the issue of repetition. Anyone who has examined what has been going on in the United States over recent months will be aware of how effective President-elect Obama's campaign was. All the political commentators pointed out that Barack Obama stayed on-message throughout the campaign. I am mentioning that in the context of the statistics Mr. Feeney gave us.

During the Lisbon treaty referendum campaign, Sinn Féin had 27 slots on the major programmes, whereas Fine Gael had just 23 slots. If one breaks that statistic down, I am sure one will find that many more Fine Gael spokespersons were represented in its 23 slots than Sinn Féin spokespersons were represented in its 27 slots. I speculate that most of Sinn Féin's 27 slots were taken by Mary Lou McDonald, MEP. The Labour Party had 14 slots and the People's Movement had 12 slots. I presume more Labour Party individuals were given speaking time than People's Movement individuals.

A broad spectrum of the political class was represented on one side of the debate in the Lisbon treaty referendum. Each of the political parties on that side of the debate had to be given a proportional share of contributing time. Various non-governmental organisations, such as the Irish Business and Employers Confederation, also had to be represented on that side. Each of the groups on the "Yes" side approached the treaty from a different angle. The Labour Party, Fine Gael and Fianna Fáil had diverse views on the treaty. By contrast, the number of spokespersons on the "No" side was limited. They were articulating a small number of messages. They were able to achieve the level of repetition that was mentioned earlier. Even though broadcast time was divided equally, the "No" side was at an advantage in so far as being able to get its message through to the public consciousness was concerned. That needs to be taken into consideration when we are talking about fairness, equality and balance. We need to achieve more balance in this regard.

I do not want to deal solely with the Lisbon treaty. That can muddy the waters to a certain extent. There will be plenty of referendums on other issues in the future. The best example is the potential referendum on children's rights. I was interested in Mr. Feeney's comment that there will be less debate, and consequently less coverage of the referendum, if 98% or 99% of people are in favour of a proposal. That, in itself, is a failing.

It is important that the public is fully aware of what it is voting on. If political confrontation does not take place in respect of any given issue, the necessary information will not get into the public domain. Mr. Feeney seems to have a great deal of experience of dealing with elections and referendums. There has to be broadcasting equality during a general election campaign. The amount of air time given to each political party is based on its performance in the previous general election. At the last general election, the Government parties had a pact and brought an agreed agenda to the people, and the Opposition did likewise. The two sides were not given equal coverage, as the level of coverage was based on the percentage of the vote achieved by the political parties at the previous general election. While there are two sides to the argument as to who should govern the country for the following five years, the broadcasting organisations did not give each side equality. Given these facts, why have a 50:50 balance during a referendum? Should we consider the use of a stopwatch on the basis that a precedent has been set for general elections?

Mr. Hanlon made an interesting point on the need for politicians to pay more attention to independent broadcasters. He also indicated that it was difficult during the previous referendum campaign to get Cabinet Ministers to make arguments. In this regard, I reiterate my point on repetition. Did the absence of a consistent message by individuals who are looked up to have an impact on the referendum result in terms of TV3 viewers? I did many local radio interviews because members of the Government parties did not appear to be available to contribute to debates.

Senator Dan Boyle

Listening to the contributions, I am conscious of the lack of detail. Despite the constraints and confusion surrounding the Coughlan judgment and other matters, there is still a a degree of editorialising as regards the choice of representatives for each side of a debate. How are these editorial decisions taken in the broadcasting organisations? Who decides which individuals validly represent the respective sides of an argument? The most prominent individuals in the most recent referendum appear to have been those with access to funds or organisational structures outside the State and who represented viewpoints not represented in Irish political life. While this is legitimate, people have achieved a prominence during referendum campaigns which do they do not otherwise enjoy in public life. It appears mechanisms are not in place to identify who should represent particular points of view in referenda. As I have argued at previous meetings of the joint committee, other jurisdictions seem to have resolved this issue by allowing their referendum commissions to decide who should argue for and against each referendum, Denmark being the classic example. Perhaps such an approach would assist broadcasters here. Despite this, editorial decisions are being made on which individuals should put arguments. I have not heard an explanation of how such editorial decisions are made.

On the moratorium and political advertising, a case can be made for structuring the moratorium differently. The purpose of the moratorium is to ensure good practice because it is possible that additional information provided on election day could distort how electors cast their vote. This applies equally to the Government which would otherwise be able to announce an initiative that could have a similarly distorting effect. Other jurisdictions appear to operate without a moratorium. The United States which has recently had a successful election is a good example. Nevertheless, we should not go down the road followed by the United States in terms of political advertising. The idea that people can buy air time to articulate a viewpoint would grossly distort political debate. One of the better features of our political system is that politics has not been opened up to the negative campaigning which results from allowing people to purchase air time on radio or television.

Several contributors referred to the role of the Internet in political campaigns and its impact on referenda. The Internet is a growing broadcasting arm in its own right, one which is not subject to regulation or legislation. How should this issue be addressed, given that the Internet is, in one respect, the most democratic of media but, in another, the medium most open to abuse in the sense that the technology would undermine democratic behaviour if put to the wrong purposes? I would value further responses from the broadcasters before us.

Deputy Jim O’Keeffe

I will return to the central issue of the discussion, namely, the balance between equality, on the one hand, and fair, balanced and impartial coverage, on the other. Both sides of this equation are interlinked. On the equality side, the Broadcasting Commission of Ireland has made an emphatic statement that there is no requirement in the guidelines to ensure equal time is given for the different sides in a referendum campaign.

The Coughlan judgment is, to some degree, linked to that issue. As my colleague noted, the Supreme Court referred to balancing the scales. Is it accepted that the basis of the Coughlan judgment was a specific issue, namely, the use of uncontested broadcasts, in other words, party political broadcasts? In that case, do our guests accept that we no longer have party political broadcasts and, as such, the Coughlan judgment is no longer relevant to the current debate?

If there is not a requirement for equality, why have all those before us indicated that they give equal treatment to both sides? Ms Geraghty from Newstalk Radio indicated, for example, that her organisation gives equal treatment in referendum campaigns, irrespective of the issue or who is on either side of the argument. The organisations represented indicated that they do this because they believe they are required to do so but this argument does not stand up.

I will cite a ridiculous example. In the event of a constitutional amendment being proposed in the area of child protection with which every Member of the Oireachtas agreed and for which a referendum would be required, would a group — let us be ridiculous and call it the paedophilia association of Ireland — opposed to the referendum be entitled to 50% of all broadcasting time devoted to coverage of the referendum?

On the other side of the equation, what is fair, balanced and impartial? It has emerged that one party, Sinn Féin, which secured a percentage of the vote in single figures in the previous general election, received much more coverage than the Labour Party, despite the latter receiving many more votes and having a much more representative role in politics than Sinn Féin. To take the matter a step further, an individual, Mr. Declan Ganley, formed an organisation and appears to have received more coverage from RTE than the Fine Gael Party I represent. Is that fair, balanced and impartial? Does it result in the issues being properly mediated to members of the public and balanced coverage of the issues or does it lead to complete distortion and the possibility of off-the-wall views receiving traction and currency because of repetition by a side which has access to substantial broadcasting time? Does it lead then to a situation whereby what is a complicated document may be quite improperly presented to the Irish people? Incidentally, that document was not drawn up by the Government or the Dáil, it was negotiated over four years by 27 different governments with the European Commission and it was approved by 27 different governments. Of necessity, it was enormously complicated because it amended all the previous treaties. As one of the people who tried to plough through it, one ended up with 388 articles, 40 appendices and two protocols, and that needed to be explained. The treaty document was approved by 27 governments, including our own.

In a situation where we are the only country in the European Union that has to approve changes to certain treaties, are we getting the job done properly in the way we are dealing with referenda? The question may arise in regard to other referenda also. Although there does not appear to be a legal requirement or a requirement on the Broadcasting Commission of Ireland for equality, all broadcasters say they have to give equal treatment to both sides, irrespective of who is on each side. Does that lead to what is an unfair, partial, unbalanced and unobjective expression of the views of the Irish public? Are people getting the proper picture? It appears they are not getting the fair, impartial, balanced and objective picture to which they are entitled. They are the central issues on which we must focus. If that is the outcome, what changes should be made?

Chairman

The Deputy would make an excellent member of the Supreme Court.

Senator Alex White

Absolutely.

Deputy Denis Naughten

Follow that, Senator.

Senator Alex White

Yes, I am trying to follow that. Deputy O'Keeffe has brought us back to the nub of the discussion and he is right to do that. I will return to that point.

The question is whether there is an alternative to the current regime. It is one thing to point to the perverse and preposterous implications of what happens. I can point to some cases regarding my party and that offends me. I described the situation earlier. It is all very well for a politician to be offended — we are good at that — but what system do we put in place that stands up to scrutiny and is constitutionally sound if we are to consider revisiting some of those issues at that level?

In any referendum the job of advocating a "Yes" or "No" vote is principally the responsibility of politicians, not of the media. I accept the media have a hugely important role but it is principally the job of politicians. and not just individual politicians. Deputy Naughten is absolutely correct. He made an important point on whether treaties or documents that are being advanced and advocated are digestible and understandable. That is a political question for politicians in government or in opposition. In the first instance, it is not a question for the media. I recall being on one of Mr. Hanlon's programmes at one stage towards the end of the referendum campaign and being asked by one of the presenters whether I had read the treaty in the context of various other luminaries admitting they had not. When I told the presenter I had read it, the presenter said I was not to be believed, but that is beside the point.

Chairman

There is a difference between reading it and fully understanding it.

Senator Alex White

As a good lawyer, I listened carefully to the question and gave the answer that was required. I wish to return to the point made by Mr. Michael O'Keeffe. It is a side issue but what is interesting to me is the rationale behind the requirement that both sides of the argument ought to be present in any debate on a referendum. Other speakers have elaborated on the point so the Chairman will know where I am coming from regarding it.

In its submission, the Broadcasting Commission of Ireland stated:

There is no requirement in the BCI guidelines to ensure equal time [for both "Yes" and "No" sides in a referendum]. There is a requirement for fair and balanced coverage of opposing views.

By implication, Mr. O'Keeffe is saying they are not the same thing. The requirement for equality is not the same thing as the requirement for fair and balanced coverage and vice versa. Mr. O’Keeffe might well be going to the Supreme Court but when one looks at the Coughlan judgment one could be forgiven for interpreting it as requiring a mechanical equality. That interpretation is one perfectly reasonable interpretation of the Coughlan judgment. It may not be the only one but it is certainly a reasonable interpretation that it is a stopwatch situation.

That brings me to what the alternative would be. Some of the submission was put in very colourful terms and I am not sure I agree with a lot of what it contains but, in fairness to Mr. O'Reilly, his submission puts something before us to consider. He stated: "The mere fact that a question is put to people in a referendum does not mean that genuine balance and effective scrutiny is given by ensuring equal time on air." He suggested that real balance might mean that the scrutiny of some claims and some groups requires more time than others. He explained that the use of the stopwatch in that way might diminish the quality of broadcasting. That is the best example from what we heard this morning of where we might go in terms of looking for an alternative.

RTE has indicted that it will not advance a corporate point of view on the matter. I do not wish to be mean to Mr. Feeney who was quoted recently at a conference, perhaps not directly on behalf of RTE, where he fairly said that giving equal time to groups and individuals who might not have the same mandate was a price worth paying for balanced journalism. I understand where he is coming from. There is a difficulty in trying to find an alternative to the stopwatch. Is there such an alternative? Is there a basis for exploring more what Mr. O'Reilly is canvassing?

What is the position of the other media outlets? I note Newstalk has agreed broadly with what was said by the Independent Broadcasters of Ireland. Despite the fact that it has not changed its view, does RTE, based on its wealth of experience, contemplate the possibility that equality could be achieved other than by means of a stopwatch and equality of time in that mechanical way? What does Mr. Feeney think of what Mr. O'Reilly said in respect of that? Does he think there is room for some exploration of a different way to ensure equality, balance and fairness while not being mechanical about it?

Mr. Willie O’Reilly

I shall pick up from where Senator Alex White left off. I came here in a period of reflection, looking back on something that is not unique but not a regular event in Irish politics. I run a relatively small organisation and while I have utter confidence in my journalists, in some sense repetition is where they learn. They are familiar with the electoral process in terms of general elections but perhaps less so in terms of referenda. It seems that the shortcoming in the entire election process is the lack of weight in regard to elected representatives. That is at the core of some of the pain in this room. The electoral commission, our interpretation and the input from the Coughlan judgment suggests 50:50 for the "Yes" and "No" sides. Yet we have seen scenarios where on the one side there are all elected officials and on the other side there is none. The deficit in it is that it does not have due regard to the weight of elected representation on each side. If there were some more of that in it, we would be approaching a better system.

Chairman

How does one achieve that?

Mr. Willie O’Reilly

I realise my big shortcoming is that I probably have more questions than answers. We must explore them. As I stated, the preposterous point is that the three biggest political machines or parties are on one side, yet the codes have no regard for this. Given that these elected representatives have sought votes and have been duly elected, one would expect some regard to be had to that fact. However, it seems to be missing in the process.

Mr. David McMunn

To follow up on the points of Deputy Jim O'Keeffe and Senator Alex White on what we can do to move away from the present system, there has been much argument over the BCI. It is correct that in its guidelines document last year it did not refer to "equal time". It used the phrase "equal treatment". Ultimately it is a question of what "equal" means and many lawyers will argue over it. As a result, in the broadcasting sector "equal" means "equal". As has been said, for all the practical reasons, the stopwatch is used.

There are two issues to be addressed in this regard. The first is that there is probably a surplus of regulation, such as the BCI guidelines, particularly in respect of the moratorium. The Radio and Television Act, which established the independent sector, and the Broadcasting Act, which established RTE, refer to fair, balanced and impartial coverage. These are broader concepts. Ireland does not have a history of irresponsible broadcasting, and broadcasters should, therefore, be allowed to interpret those general requirements appropriately. Obviously, if there are abuses, they can be dealt with by the Broadcasting Complaints Commission or another body.

The other issue that needs to be addressed concerns the procedure for referenda, particularly the referendum on the Lisbon treaty, which has many articles. I am sure the committee is aware of the ruling in the Crotty v. An Taoiseach case of 1987, which basically set the standard in respect of referenda on EU treaties. There is a lot of legal argument over it but it could be argued referenda are required only if the broad direction of the European Union is to be changed and not where it is a matter of procedural change. Ultimately, as has been stated today, the Lisbon treaty was very much based on procedure. I am not suggesting the referendum could have been avoided but this needs to be considered in the overall examination of all the issues.

Mr. Michael O’Keeffe

On the question of equality of treatment and equal time, we are very clear that there is no requirement for equal time. Mr. O'Reilly states that some of the wilder suggestions of one or other side may require greater scrutiny and therefore more time. I agree absolutely. Allowing more time to journalists and broadcasters to challenge a point is not breaching our guidelines, although more time might be devoted to one side than the other. It is perfectly legitimate for the broadcaster to make a challenge in this regard.

On my first point, we give the onus to the broadcasters and provide them with the guidelines. The word "guideline" is important. We stipulate the basic principles that must be applied and ask the broadcaster to apply them. One cannot have it both ways. At times the BCI is criticised for being too interventionist and for regulating too much but it disagrees and states it puts particular principles in place which the broadcaster must adhere to and in respect of which the consequences must be accepted.

Mr. Andrew Hanlon said that if he is informed of a breach by the BCC, he gets a mark on his contract. That is perfectly legitimate.

Senator Alex White

Does it happen much?

Mr. Michael O’Keeffe

Very infrequently. It is legitimate in that if one is given a licence and responsibility, one must accept the consequences of one's actions. I have outlined the difference between what we regard as equal treatment, namely, giving a voice to each side, and equal time, which is not an absolute requirement. It is legitimate for broadcasters to state the manner in which they intend to proceed in this respect.

On the point about having both sides present, I blame my editing slightly. We actually state the proponents and opponents of any proposition should be represented in the same programme, but this is clarified with the phrase "where practicable". The rationale for this can be understood in respect of a referendum. A referendum is a debate requiring a "Yes" or a "No" response; one cannot respond "Maybe" or "I am not so sure," although one can do this when making up one's mind. The broadcaster making a programme must consider the arguments in favour of and against the question in a referendum. We contend it is very difficult to do this unless, within the confines of the programme, one affords the different sides the opportunity to outline their arguments. It does not mean one must have both sides going head to head but that both views can be represented within a programme. If Matt Cooper of Mr. O'Reilly's station, for example, is covering the referendum, he should afford the opportunity to both sides to be represented within the programme and challenge them as he sees fit. These are the key points.

Let me touch on the point made on the lack of weight in respect of elected representatives. It is a question of whether one should change the system. In other jurisdictions there are quota systems. It is argued that, because an elected representative has been voted in by the people, greater weight should be given to him or her when determining the air time to be given.

Deputy Jim O’Keeffe

In what countries does that happen?

Mr. Declan McLoughlin

A good example is Portugal which has a quota system for covering news and current affairs. It requires broadcasters to devote 50% of news coverage to the Government and affiliated organisations, including Government-supporting trade unions; 48% to the Opposition and 2% to unelected groups not affiliated to either. The Portuguese broadcasting authority has ten full-time staff who listen to and code, using statistical software, all content, after which they produce a report. That approach obviously has heavy administrative consequences, not that this should determine one's approach. It is a very different system from ours and obviously would require greater intervention by the regulator in regard to monitoring coverage and, to some extent, decisions on broadcasters.

There are other examples but I do not have them to hand. Systems vary. Some countries have moratoriums which can be of different types, while others allow different sides different lengths of time. Some have different quota requirements. The United Kingdom, for example, does not use a quota system. The procedure varies considerably across jurisdictions but there is a precedent for both approaches. There are different thinking processes involved in determining which is necessary and desirable. In key places where quotas are used they are used in the principled belief elected representatives should be given greater weight in debates.

Chairman

Will Mr. McLoughlin make that information available to us?

Mr. Declan McLoughlin

Yes.

Mr. Michael O’Keeffe

If one were to have a system such as the Portuguese one, questions would be raised if there were a referendum in which the vast majority of political parties held the one position. It would be very difficult to be fair and balanced. In the Irish case, the time allocated to those not affiliated to the Government and the Opposition would amount to 2% of the total, in addition to whatever percentage would be allocated to Sinn Féin. This raises the question of balance and fairness.

Mr. Peter Feeney

In thinking about any alternative to the present system, I ask the committee to bear in mind the public. How would the public feel if it saw a debate in which three people were on one side and only one on the other? There is a sense of fairness about presenting both cases in an argument, irrespective of whether the case is presented by an elected representative or an unelected person. A strong sense of fairness demands that both sides are given equal opportunity. No stopwatch is applied in RTE in referenda coverage to ensure exactly the same time is given to one side as the other. Broadly speaking, RTE ensures both sides get a chance to make their cases and rebut the arguments of the other sides. RTE does not insist they get, say, ten minutes each.

RTE recognises and ensures its audience knows the elected representatives are on one side. A good example of this was during the recent referendum coverage on the "Today with Pat Kenny" programme. It held five debates with a "Yes" and a "No" person. It then had a separate interview with the Taoiseach. A complaint was made to the Broadcasting Complaints Commission alleging RTE was biased in favour of the "Yes" side by giving the Taoiseach an uncontested interview on his own. The commission did not uphold the complaint because it stated the interviewer asked the Taoiseach the appropriate questions and put all the arguments the "No" side would have made. That is a practical way of recognising that elected representatives are on one side and the unelected people on the other.

Regarding the reason RTE gave Libertas so much space, we had two choices. RTE could have given the coverage of the "No" side to its elected representatives, Sinn Féin and two Independents. Alternatively, it could have tried to create a balance between the elected representatives and the various pressure groups. RTE put considerable effort in trying to represent all the pressure groups' arguments, whether it was a pro-life, a left wing, a right wing, an anti-conscription or a Sinn Féin point of view. Inevitably, that meant Sinn Féin got much more time than the Labour Party. As Senator Alex White said, that may be a price worth paying for democracy.

Senator Alex White

I thought it was Mr. Feeney who said that.

Mr. Peter Feeney

There is a difference between news and current affairs coverage. The legislation that applies to all broadcasters states they must be impartial and objective in news and impartial, objective and fair in current affairs. In a referendum where everyone was on one side, it would have no impact on news. News will still report and give much more time to the "Yes" time. It would only be in a debate on a current affairs programme that the issue would arise.

RTE on-line was an important part of its coverage of the referendum. The number of hits received ran into millions. RTE imposes the same obligation to be balanced in its Internet coverage. I accept the Internet is almost entirely unregulated and there is scope for a large amount of distortion of coverage.

More than ten complaints were made to the Broadcasting Complaints Commission about RTE's recent referendum coverage and none was upheld. To the best of my knowledge, the only time ever in the 50 years of RTE covering elections and referenda in which a commission complaint was upheld was the Coughlan judgment. The BCC upheld RTE's position and the case was subsequently appealed and it went all the way to the Supreme Court. The judges, in coming to their decision, referred to party political broadcasts, not the rest of RTE's coverage.

RTE, in theory, could have party political broadcasts in a referendum if the parties were, more or less, evenly balanced. What RTE cannot do is give the entire coverage of the "No" side to Sinn Féin in a party political broadcast because it is the only elected party on that side and divide the coverage of the "Yes" side between the other parties because that would be a distortion. By law, RTE is not allowed give party political broadcast time to non-political parties, pressure groups or lobby groups. That is the main reason we do not hold party political broadcasts in referenda. In future it is possible we will do so if the parties are evenly balanced.

Mr. Garrett Harte

The civil definition of equal treatment for two parties is 50:50 and that matter is worth considering again. On the point about scrutiny, it is more difficult to quantify terms when one is scrutinising, which leaves the issue open to interpretation. That is not practical when working in a broadcasting outlet as opposed to the print media where opinion is in written form.

Chairman

Thank you all very much. It has been a very informative morning and very helpful to us in our deliberations.

The joint committee adjourned at 1.22 p.m. until 11 a.m. on Tuesday, 18 November 2008.