Before we take up consideration of the Committee Stage of this Bill I should like to indicate that I have ruled out of order amendments Nos. 2 and 4 in the name of Senator Alexis FitzGerald on the grounds that they are outside the scope of the Bill as read a Second Time. The Senator has been notified accordingly.
Censorship of Films (Amendment) Bill, 1970: Committee and Final Stages.
Section 1 agreed to.
SECTION 2.
Miss Bourke
I move amendment No. 1:
To add to the section a new subsection as follows:
"( ) Notice of every application made to the Official Censor under this section, and his decision thereon, shall be published in a manner to be prescribed by order of the Minister in the exercise of his powers under section 12 of the Principal Act."
I move this amendment as a result of the debate we had last week and in consideration of the reply made by the Minister when suggestions for such publication came from all sides of the House. Senators will recall that Senator Horgan, who will second this amendment, said during the course of his contribution that:
Some system of publication (a) of films rejected and (b) of cuts made in films passed should be made available to the public.
When concluding his speech, the Leader of the House said and I quote from the Seanad debate:
I support this Bill for the resubmission of these films but I do so with grave misgivings. I support it in the hope that the Minister will see to it that the censor will give us and the public generally an indication of what films were submitted to him and what films were rejected.
I mentioned that under section 12 of the Principal Act of 1923 the Minister would have power to make orders regulating the duties of the official censor and that he would have power to require the censor to make a list of this nature. The Minister, when replying to the debate, mentioned this request from both sides of the House for the publication of an official list and his argument was that the films submitted to the censor were the private property of film distributors and that if they did not accept the cuts suggested or if they did not wish to have the film shown in such cut form, they had the right as owners of such private property to have privacy. In other words, the public need not know about what films they submitted. I quote from the Minister's reply as reported at page 222 of the Seanad debate of the 27th May:
Therefore, in my opinion, since it is entirely a matter within the province of the renter whether he will submit a film to the censor, if he does so he is entitled to do so in privacy without having the fact published later that the film was rejected or cut. The comparison between a person who is submitting a film for censorship and the author or publisher of a book, which already has been on sale publicly before it is submitted to the literary censorship board, is therefore invalid.
In other words, the Minister is making a distinction between the publication of a list of banned books and the publication of a list of banned films. On consideration of the Minister's remarks, I believe that he is viewing the censorship of films from too narrow a viewpoint. It is not solely a matter of public property of the renter: there is a public interest involved. There is involved the constitutional rights of the citizens of Ireland.
Last day we considered the constitutional right under Article 40, section 6. Under this section there is a right to see any film which is not banned on the grounds that it is either offensive, seditious or blasphemous. The Minister, being a lawyer, will be aware of the recent Macauley case in the High Court which laid down that the citizen had a right to vindicate in the courts his constitutional right and I would submit that one of our constitutional rights is freedom of expression —freedom to see any films which do not fall into the category of being blasphemous or obscene under the Common Law or which do not attempt to deprave or corrupt or are contrary to public order and morality. It is only within this rather narrow framework that the censor can act. The citizens of this country have a constitutional right to see any films which are not within this category which have been submitted to the censor. I feel it is not vindicating the constitutional rights of the citizens not to publish the list of the films submitted.
This fulfils two purposes. It safeguards our constitutional right by providing us with the knowledge of which films have been submitted and the decision thereon and it also furthers the interest of those who are distressed at films such as Joyce's Ulysses which was banned and has not appeared in this country. Those of us who have seen it outside the country may feel, when it comes up for reconsideration, that we would like to know what the decision of the censor was and whether this is one of the films, I take it as an example at random, which came up before the censor. Therefore, on those grounds, and because I believe it is not just a matter of private property, that there is a constitutional issue involved that I beg leave to move this amendment.
With reference to Senator Bourke's remarks here today regarding, if I heard her rightly, the alleged constitutional rights of a citizen to see any film he or she wishes to see——
Miss Bourke
Submitted to the censor.
——which was submitted to the censor and presumably not passed by him, although I make no claim to be a legal expert in those matters I fail to see that any such right exists. If Senator Bourke feels such a right exists I invite her to institute an action for such declaration. I should have thought the whole point of the censorship of films, of at least the political aspect of which Senator Bourke was very keen the last day, is in fact accepted generally and there has been no suggestion that the 1923 and 1925 Acts and this Bill, which is at present before the Seanad, are or might be unconstitutional.
Now, to deal with the amendments in general, I am sure the House will appreciate from what I said in my reply on the second reading that I must oppose this amendment. There are, as I see it, both objections in principle and practical objections to the amendment. There is the initial objection in principle that it would be impossible to defend the proposed publication in relation only to applications made by virtue of this Bill. If there should be publication at all, it is surely plain that it should apply to all applications. I should say in fairness to the Senators who have put down amendments that their amendments are necessarily confined, through no fault of their own, to proceedings under this Bill and not under the Acts in general.
The second but much more important objection in principle is the one I mentioned here the last day. The fact is that what is in question here is private property, a film which is privately owned and which is not yet released for public showing in the State. It is important to bear in mind that if the censor is required to disclose that such a film has been presented for censorship, he is thereby also disclosing, even if indirectly, that other films have not been so presented.
A suggestion was made here the last day that film renters were unwilling, or may be unwilling, to disclose information about their dealings with the censor lest they offend the censor and suffer in the long run. I think I should place on the records of this House that when a similar suggestion was made by a film critic in a newspaper about 12 months ago a full public apology was subsequently made to the censor. This kind of suggestion, implying as it does that the film trade do not trust the censor, is a reflection on the integrity of the censor and is without foundation. Most of the film renters, that is to say the people who bring in the films and let them out to the cinemas, are represented by an association and the association, who were consulted again on the occasion to which I have just referred, reaffirmed their position, which was that, as far as they were concerned, it was for them to release or not to release information about the products which they own. They are, and at all times have been, fully aware that, as far as the censor is concerned, they are quite welcome to publish any information they wish about the censor's decisions. They acknowledged that fact and in face of that acknowledgment, which they repeated in the full knowledge that it was going to be published by the censor, I think it is not too much to ask that the censor should not again be subjected to this innuendo.
I repeat that a film, as presented for censorship, is a single piece of property. There are not, as in the case of books, thousands of copies owned by many different people. As I have explained, the owner of the property asserts, and in my view legitimately asserts, that it is for him and not for any State authority to release information about it.
That is the main argument of principle. There are also, as I have said, practical arguments. If the censor publishes information, what precisely is he to say? Obviously he cannot give descriptive particulars of what he excludes since to do so is to publicise that very material which by his own decision he has held to be unfit for publication. If he just says that the film is "subject to cuts" he is giving no really useful information for cuts may range from something very short to something quite extensive. Considerable commercial damage, as I pointed out on the last day, could be done to a renter, and quite unfairly, by a statement that cuts have been made as this would give the impression, perhaps quite wrongly, that the film bears little resemblance to the original film and was a mutilated product.
Another point is this. Supposing a renter, on hearing the censor's reaction, withdraws the film and does his own cutting to avoid publication of an announcement of cuts, is this not going to be highly misleading to the public? Worse still, from the point of view of the public, suppose renters, afraid of the commercial damage of such publication, became afraid to take the slightest risk of an adverse decision, the inevitable result is that the renters will do their own cutting before they approach the censor at all and will necessarily be much more severe than he would be in such circumstances.
Accordingly the net result would be that the public would get no information of any value while, on the other hand, the legitimate interests of the renters could be adversely and unfairly affected and, as I have explained, the renters, in order to protect their legitimate interests, might have to impose on their products a censorship far more severe than the censor would wish to do.
These particular arguments, important though they be in practice, must take second place to the objection in principle that I mentioned earlier namely, that the film, at the point when it is presented for censorship, is private property and, in my view, there is no answer to the claim consistently made by the renters and reported fairly recently, that the release of information about a film is entirely a matter for them as the owners or representatives of the owners.
Is the amendment being withdrawn?
Miss Bourke
In view of the Minister's very full reply, although I am not quite in agreement with him because he is advocating the renters' commercial interests rather than the public interest, I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3.
Amendment No. 2 has been ruled out of order.
I move amendment No. 3:
Before section 3 to insert the following new section:
"Before 1st January, 1971, and from time to time thereafter at intervals of not more than ten years, the Minister shall appoint a committee to inquire into and report to him on amendments (if any) to section 2 of this Act which, in the opinion of the committee have become desirable by virtue of changed circumstances or which the administration of the section has shown to be desirable."
I should have preferred to address the House on the amendment which has been ruled out of order: it would have been easier for me to get the House, in particular our guest, the Minister, to consider what is in fact a new concept and which I think it would be desirable to introduce into legislation, particularly legislation of this kind. When the Minister was introducing the Bill he said that since January, 1965, a number of films had been passed for adult viewing which up to then would have been refused a certificate. He added:
Conversely, it may be assumed that a number of films that were refused certificates before January, 1965, would have qualified for a limited certificate if such a system had been in operation at the time they were submitted. There is, therefore, a very good case, in principle, for altering the present law so that a film that was cut or rejected in, say, 1964 should now be eligible to be reconsidered.
If in the earlier legislation, the Censorship of Films Act, 1923, section 7 had allied to it or as a subsection of it provisions such as the amendment I have moved, we would have reports made to the Minister by a committee concerned to examine this situation which the Minister has now found it desirable to amend; we would have had this amendment long before now and we would have had a body of persons empowered to consider the operation of that section and whether it was desirable to amend that section in the light of the changing standards and the various other considerations that properly would have had to be considered in the drafting of this Bill.
While technically in this amendment I am suggesting that a committee should sit and report to the Minister on amendments, if any, to section 2 of the Act which in the opinion of the committee had become desirable by virtue of changed circumstances, I was impressed by what the Minister said on Second Reading in regard to the cutting of films and also with the manner of his saying these things. However, I should like to see that hereafter we would have a body who in the operation of this section would consider whether the censor or the appeal board were operating in a manner which seemed to them fair and just—whether the balance was properly being kept between the liberty of the public and our duty to preserve public order and morality. I ask the Minister if he would be prepared to open his mind to this amendment. I do not press for the acceptance of this amendment in this form but I suggest an amendment would be open to him on the lines of the amendment which has been ruled out of order:
... a committee to inquire into and report to him on amendments (if any) to the Censorship of Films Acts, 1923 to 1970...
We have had the 1923 Act, amended in 1925 and in 1930, and 40 years have passed. Perhaps this Bill should have been introduced much earlier. I leave my amendment to the House.
Senator FitzGerald's idea of a periodic review of the working of the film censorship Acts is one that, on the face of it at all events, seems reasonable in principle. Whether the kind of review proposed, namely a review by a committee at least every ten years, is attractive in principle is another matter and one I propose to comment on in a moment, but before doing that I think it worth mentioning that there probably would be in any event considerable practical difficulties in the way because it would be impossible, I should think, to have a review of any value unless the committee were in a position to see the films or portions of films that were rejected, and since even the studios that make the films may have only a few copies altogether, it might be quite impossible for them, at any given time, to produce a copy of a particular film to such a committee. In fact, I should think that the odds would be against it.
Leaving those practical difficulties aside, however, I think there are quite serious objections in principle. First of all, I do not think the need for a formal review every ten years or oftener has been established or could possibly be established. Our experience to date is that, apart from a couple of minor amendments that do not invalidate what I am saying, our 1923 Act has remained adequate for close on 50 years. We have had arguments, of course, about standards of censorship but the standards were not fixed by the Act but by the official censors and the appeal boards and thus were amenable to change corresponding with change in the general pattern of what was acceptable to the general body of the public. But the Act itself, as I have said, was regarded, both by the public and the trade, as perfectly adequate until fairly recently when the need for the present Bill became apparent. Incidentally, the need for it was established and recognised without recourse to any such committee as is proposed in this amendment so that the fact that we have this Bill now is not, in itself, an argument in favour of a committee. I suggest, therefore, that experience to date does not support the proposition that a formal review at ten-year intervals is at all necessary and, as a matter of principle, I do not think committees should have to be established unless the need for them is established beyond doubt.
I have thought it right to mention these objections because I think they are valid ones and worth pointing out. I have left aside until last, however, what in my view is by far the most serious objection, and indeed an insurmountable objection, to what is proposed. To explain what I mean, I would ask the House to consider our present system. We have an official censor and, as an appellate authority above him, we have an appeal board. At present, the chairman is a judge of the circuit court. The members are persons selected because of their ability to represent and express different points of view.
I am afraid that, whatever gloss might be put on it, the reality behind Senator FitzGerald's proposal is that we would have another committee reviewing and reporting on the work of the committee which comprise the appeal board. Frankly, I do not see how any self-respecting appeal board could tolerate such a situation for a moment. I think they would say: "Who are these people who are set up to pass judgment on us? If they are competent to do that, let them take over and act as the appeal board themselves." I should like to be quite clear about this. I do not mean that the work of the appeal board is above all criticism. Any and every person or body exercising functions affecting the public must be open to some form of criticism.
My point is that we cannot have one committee superimposed on another. The appeal board are answerable to me as Minister for Justice. I am answerable to the Oireachtas. If the appeal board were incompetent it would be my responsibility to replace them. We could not have an appeal board which we accept as comprised of fit and proper persons to act on the board and at the same time have their work made subject to periodic reports by another board or group. Their standing in the scheme of things is such that they can be made answerable only in the one way and that is to the Minister and through him to the Oireachtas.
That leads inescapably to the conclusion that Senator Alexis FitzGerald's idea is in substance already given effect through the existence of the appeal board. The appeal board are a committee and because of the qualities and background which led to their members being selected in the first place, and because of their experience in film censorship, they are the people who are the most suitable committee to report to me on an amendment of the law if such amendment becomes necessary. While I feel that it is important that the right of the appeal board to communicate with me in confidence must be preserved, I feel they would not mind if, without going into detail, I say on this occasion that they contributed to the formulation of proposals now before the House. I am certain that they would do so again if and when the need arose.
In these circumstances, while I have approached the matter with an open mind, I regret I could not agree to the amendment because it would diminish in a most serious way the status of the existing appeal board.
I am glad the Minister referred to the persons who compose the appeal board. Some of them are friends of mine and it would be miserable for me if my proposal were seen to reflect on them as persons. There is an important aspect which the Minister might look at. The proceedings of those well-qualified gentlemen are held in camera. These proceedings are private in the most complete sense. In the Supreme Court the judgments are given in public and when given can be subjected to, and are subjected to, criticism by legal critics. The whole process of our law generally involves this feature of constant criticism of the judicial system. This system helps the judges themselves to revise views which they have embodied in previous judgments.
It is all very well for the Minister to say that he is responsible to the Oireachtas and that the appeal board are responsible to him. The Minister's source of information about the operations of the censor and of the appeal board is the censor himself and the appeal board themselves. We have no information at all. There is no publication at all about their procedures. From studying the composition of the board I would have thought that the balance would be weighted in favour of public order rather than in favour of private liberty.
There is a case for the Minister to have an opportunity of getting information as to the procedures of the censor and the appeal board. The Minister would be able to see whether anything defective was developing in their procedures through habit. The system of doing something and repeating it can produce compulsive habit. This happens with bodies and people can be unaware of the fact that they are acting in a reflex way to a situation. If another point of view were presented to them it might mean that they would have a different attitude to a problem.
There are property interests involved and these cannot be ignored. One of the virtues of this sort of procedure is that there would be no need for detailed publication in An Iris Oifigiúil which has a counter-productive effect. I would ask the Minister to reconsider the possibility that generally in regard to our legislation it might be wiser for the Oireachtas if one had independent committees, and committees independent of the gentlemen behind the Minister who are heavily burdened with other duties all the time, and committees whose special functions might be to consider whether certain legislation needed to be revised in the public interest. Such an independent body would be able to indicate the degree of urgency which they attached to the particular version thought desirable. I would ask the Minister to give this the necessary thought between now and the Report Stage.
I should be glad to give a great deal of thought to this matter between the end of the Committee Stage and the beginning of the Report Stage but I had hoped that the interval would be extremely short. The points which Senator Alexis FitzGerald makes have always a certain degree of validity at least. They are worthy of thought by me and by others interested in these matters. I might refer briefly to some of what the Senator has said now. The Senator felt that the appeal board, because it carried on its proceedings in camera, was free of criticism. That, in fact, is not so. As I said earlier in my reply when the Senator was moving the amendment, I do not suggest for one moment that the appeal board should be free of criticism. Any body or persons exercising functions by which the public are affected must from time to time be subject to some criticism.
It happens in practice that the appeal board are not subjected to a great deal of criticism. Although this may seem an over-simplification, I believe the reason they are not subjected to a great deal of criticism is that they do not deserve it. If a person or persons feel they have been unjustly treated by the censor or the appeal board, as I pointed out earlier today on a previous amendment and as I pointed out in my Second Reading speech, the censor and the appeal board have absolutely no objection whatever to such dissatisfied persons making public the reason for their dissatisfaction. If a certificate is refused by the censor and the appeal board for a particular film, and the renter or distributor of the film feels aggrieved, there is nothing to stop the aggrieved person writing a letter to a newspaper, or raising the matter in any other way. The censor or the appeal board would no doubt defend themselves as they saw appropriate.
I think the point the Senator makes about the procedures of the appeal board is covered by what I have already said. The point about these independent committees which he suggested is, in a wider context than the particular one we are discussing here under this amendment, a bone of some contention, which goes to the root of the whole Parliamentary procedure of this country. I should not like to make any pronouncement on it at this point in time on this particular Bill because I think any committee which might concievably be established arising out of this Bill would only be a minor one when one takes into account all the committees of that nature which might, if it were so decided, be formed in conjunction with the Houses of the Oireachtas.
Amendment, by leave, withdrawn.
Amendment No. 4 has been ruled out of order.
I move amendment No. 5:
"(1) The appeals board shall present to the Minister annually a report of their proceedings under section 2 hereof during the previous year and a copy thereof shall be laid before each House of the Oireachtas.
(2) The appeals board shall furnish to the Minister such information with regard to the exercise of their functions under section 2 hereof as the Minister may from time to time require."
This amendment speaks for itself. I should point out that I cannot take credit for the drafting of this amendment because it was taken from the Arts Council Bill with appropriate amendments made to make it relate to this particular section.
I think the censorship of films code is the only one of its kind where no report of proceedings is made to the Minister or laid before the Houses of the Oireachtas. If this were done the censor and the board would be saved a great deal of criticism. In principle I think we should by right receive a report about what the board are doing. The Minister is bringing a detached mind to this. Perhaps not all his predecessors had the same concern as he has and perhaps not all his successors will. I think Members of the Oireachtas have a duty to satisfy themselves that any institution which they create is watched by them. I think my Second Reading speech indicated that I am no libertine, in principle at any rate.
I should like to say a few words on this amendment mostly by way of asking questions regarding the present procedure. The Minister's Department kindly made available to me a document called "Film Censorship Annual Returns, 1968". I am not sure if this document is the annual report of the censor and the appeal board but if it is it would appear to me that we are already, to some extent, in possession of an annual report from the censor and appeal board.
I would not be keen about pressing this matter any further because the information in which I and many other Senators have an interest is the publication of the titles of films which go to the censor and appeal board. I hope the Minister will not mind if I make one final plea and ask him to reconsider this matter because while this document on the annual returns is of considerable interest, it gives the number of films submitted and the cuts made, it does not refer in any way to the titles of the films which were put before the board.
I very much regret that some Senators asked for information regarding specific cuts in specific films. The Minister has dealt exceptionally well with those points and his arguments have been extremely interesting. He has emphasised that the film is the private property of the renter and that the relationship between the renter and the censor and the appeal board is a private and confidential one. I accept that that is quite true but the reason a number of Senators are interested in the titles of the films going to the appeal board has nothing to do with this. Our difficulty is that we feel the judgments made by the censor and the appeal board are matters which should be open to public debate and matters where the public should be aware of the criteria being used. Under the principal Act, the instructions given to the censor are that he shall certify it,
... unless he is of the opinion that such picture or some part thereof is unfit for general exhibition in public by reason of its being indecent, obscene and blasphemous or because the exhibition thereof in public would tend to inculcate principles contrary to public morality or would be otherwise subversive of public morality.
The only evidence we have of the criteria used by the censor and appeal board is by virtue of what appears; we have no evidence of what is excluded. This means there is no way in which we can objectively attempt to assess the criteria being used by the censor and the appeal board in our name. Until a list of the full titles of the films submitted to the censor and appeal board is published in the annual report we cannot assess the standard of rejection.
We know the standard of acceptance but we also need, if we are to assess the merits of the working of our censor and appeal board, to know the standard of rejection. I do not think the publication of an annual report would necessarily lead to the type of abuse which the Minister fears, such as the situation which existed when books which were banned in this country were displayed abroad with a label on them which said, "Banned in Éire". We have nothing to fear about any film being given the label, "Banned in Éire" if we as a community are quite happy that the censor and the appeal board acting in harmony used criteria and standards of which we approve. In some circumstances we should be proud of the fact that books or films have been banned in this country. The reason why we are rather ashamed of this and the reason why we look back on it is because I think the censorship board made some rather foolish mistakes with regard to literature and quite rightly we regarded it as a matter of regret that some books which did not deserve the title were published abroad with a label on them, "Banned in Éire".
Another point I should like to make, which is separate from the general point about the publication of titles, is that historians of the cinema or film, archivists, may find that the only available list of film titles, perhaps even films written by Irish authors or produced by Irish producers, will be in the hands of the censor and the appeal board. It is a pity that historical information of this kind, because of the present way our censorship legislation is administered, should be denied indefinitely. We have had the Censorship of Films Act since 1923 and if the Minister could see his way to releasing the titles of films which went to the censor or appeal board in the first 20 years of the legislation, which would bring us up to 1943, that would be some help.
It may be that such a list might reveal Irish films of historical interest which have been lost or forgotten. If the Minister every 20 years were to release the titles of films which appeared in the previous 20 years that would be some help. This may sound a trivial matter but I am raising it because there are people with a specific interest in it. I understand it is not permitted at the present time but I feel it may be of genuine historical interest in the future.
Miss Bourke
I support the amendment put forward by Senator FitzGerald. I feel statutory bodies should present an annual report. I agree with the arguments put forward by Senator Keery. Already it raises what I consider to be an argument which many Senators would endorse, that is how can we know the standard set by the official censor and by the appeal board and how can we know what considerations they take into account if we do not know what films are being submitted to them or on which grounds they are being rejected?
I agree with the Minister that it would be wrong to expect them to give details of cuts that have been requested if the film is to be distributed here but I think it would be an important contribution to public opinion in this country and it would also be the type of accountability which we ought to have from a statutory body such as the appeal board if they would make a report to the Minister—a report that would be put before the House. The arguments in favour of the amendment have been very well put by the Senators and I should like to support it.
With regard to the amendment I should like to say firstly that, due to no fault of the proposer, if the amendment were accepted by the House it would relate only to films which came under the operation of section 2 of this Bill. I am sure the proposer would have wished, as is quite obvious from amendment No. 4, that it would apply to all films.
The Minister could take that on Report Stage.
Yes, but whether he will is another matter. If I may take the two subsections of this proposed section separately I should like to take the second one first. As drafted, the subsection may be open to the interpretation that the board would be required by the subsection to furnish to me as Minister information in the nature of an explanation for particular decisions. In other words, they would be asked to justify particular decisions to me as Minister.
I accept that the Senator probably did not intend this because any such provision would at one and the same time seriously diminish if not destroy the independence of the board and, to a corresponding extent, would impose on me a function which I could not imagine the House wishing to impose on me—a function which I could not imagine any Minister in his senses being willing to have imposed on him.
Without wishing to interrupt the Minister, may I point out that, as I said, this is the type of information the Minister and the Government are entitled to get from the Arts Council. I would happily amend this to include a proviso that there would not be any interference on their liberty as censors.
This difficulty may arise to some extent by the fact that I am discussing the second amendment first, but when I reach the first amendment the Senator will realise that a report of the type mentioned by him is provided by the board. The point that I was about to make in relation to me or any Minister appearing to ask an independent statutory board for some comment which might seem to amount to a request for a justification of their decisions is that this is a provision which this House would do well to avoid. If the precedent is created whereby a Minister, no matter how trivial a matter is involved, can go to an independent statutory board and ask them the justify their decisions, it does not need a fertile imagination to realise what such a precedent could eventually lead to. I should not care to establish such precedents in any procedures under this Bill.
I take it for granted that Senator FitzGerald did not intend it in that way, and therefore we are left with the other interpretation—that what is intended is factual information that does not amount to the defence or justification of decisions in particular cases. On that basis I would agree with the Senator's view but the difficulty is that his view is so obviously right that I cannot see how anyone could dispute it. It is inconceivable that the appeal board could refuse to give information of that kind. They have always done so, as I shall be mentioning later when commenting on the first subsection. I do not think that the appeal board would be offended by the Senator's amendment since the Senator had no direct knowledge of the way in which the board operate, but they would be offended if I were to adopt the attitude that it was necessary to impose on them a legal obligation to do what they have always done without question. Therefore, I assure the Senator that his second proposed subsection is unnecessary.
The first proposed subsection, in so far as it relates to the presentation of a report, is also unnecessary because the appeal board make an annual report already. This report includes comments which have been made in the knowledge that it is not customary to publish the comments and which, perhaps, may be all the more freely made on that account, but I should like to emphasise that the statistical material relating to the board's working is published and, indeed, it receives substantial press publicity at the time of its release each year.
The document which my Department supplied to Senator Keery at his request is, in fact, the statistical information from the board's report. It has always been customary to publish such information. It was published not very long ago in respect of last year and was commented on in the newspapers. In future years the report will have to refer to applications made by virtue of section 2. Such applications are covered by Senator FitzGerald's amendment.
I do not know whether I could agree that the body of the report as opposed to the statistical information contained therein could be published in future years. There is a difficulty that I have already mentioned of its being mainly a document prepared specifically for publication. If the board were to be more cautious their report would become less useful to me and, ultimately, less useful to the Oireachtas than if they published a document in which is written what they feel should be written in the knowledge that it will be treated with the greatest confidence.
The best I can do at the moment is to consider the matter without any preconceived idea about where lies the balance of advantage. I assure the House that I will do this before the next annual report of the board is due. This is not for almost 12 months from now. Meanwhile, Senators will appreciate that if the board have already made an annual report it would be wrong of me, knowing that, to support an amendment which purports to require them to do what they have already done quite recently and what they do each year. I give an undertaking to the House that I will discuss with the board the advisability or otherwise of publishing their report next year.
Senators will appreciate that in justice I am bound to inform the board of this and to consult with them because their report this year and reports for many years past have been written and submitted to my predecessors on the basis that they would be regarded as confidential and I would not propose to depart from that practice without putting up to the board the arguments which have been so well adduced in this House today that their report might in fact be made public. If they are agreeable I feel I should give them sufficient notice to enable them to prepare their report in the light of that.
I should like to say a few words on this. The Minister has made an effort to deal with this matter reasonably and I hope he will not regard me as in any way slighting when I say that I think his arguments in relation to this particular amendment are entirely fallacious. As I understand the Minister's approach it is this: the board already give a report and therefore it is not necessary to have it in the legislation that they should be obliged to give a report. That is precisely what this amendment is about. Senator FitzGerald takes the view, and it is one I share with him, that this is a statutory body set up by legislation of the Dáil and of this House and that in those circumstances, and having regard to the fact that other statutory bodies of a roughly similar character have, under the legislation establishing them the legal obligation, to produce a report annually, there is no reason why the appeal board, which we are concerned with now, should be relieved of a similar legal obligation.
That is valid. It is a coercive argument. It is all very well for the Minister to say that the appeal board make a report to his Department. That does not come to the Oireachtas which by legislation establishes the appeals board. As I see it, the Oireachtas are entitled to get that information. One of the purposes of this amendment is to ensure that those reports will be laid before each House of the Oireachtas. I have no doubt at all that the Minister himself would be courteous enough and that his officials would be courteous enough to give information of the sort that Senator Keery apparently obtained when he got what amounts to a statistical abstract of the work done by the appeal board. I have no doubt that courtesy would be extended to Members of the Oireachtas but it is only a courtesy. They are not entitled as of right to that. The suggestion in this amendment is that they should be entitled, as of right, to have the report laid before them so I do not consider it is any answer to this amendment to say that the board already produce a report and therefore that it is not necessary to legislate in order to make them do it.
The Minister then went on to argue that the report which is furnished by the appeal board to him or to his Department at present contains information that might be regarded as of a confidential nature and that in any event if it were a statutory obligation on the appeal board to furnish an annual report it would be a much more cautiously produced document and that the appeal board might not be as expansive in their comments. I do not think the Minister used that expression but it was the sense of his argument. I consider that also is fallacious. Even though this House or the Oireachtas in general imposes an obligation on the appeal board to produce an annual report—let them be as cautious as they like about it—there is nothing to prevent them, in addition to producing their annual report, giving whatever confidential comment or information they want to the Minister. That situation of a confidential inflow of information need not be interfered with one way or the other by the obligation to produce a report of this sort.
The Minister, as I say, is trying to deal with this matter reasonably and if he wants to get the Bill today, as apparently he does, I can understand that if he has any doubt about the wording of this particular amendment that he is naturally put on the spot. He has little option but to resist any change in the Bill unless he is prepared to accept the amendment in toto as it stands. That is exactly what I would urge on him to do.
The other point he made is not real. I remember at one time the Minister's party used to claim to be the party of reality. The suggestion was that the second part of this amendment would seem to give grounds anyhow for believing that the Minister might be entitled to demand of the board information which would be tantamount to a demand or a request to them to justify decisions which they have made. The Minister has made it quite clear that in so far as he is concerned he would not want to do that. Even if that interpretation were open on the second part of the amendment, the remedy for the situation rests entirely in the Minister's hands. He need not request any information which would be in any way, or could be in any way, interpreted as request to the board to justify their decisions.
In any event, as Senator FitzGerald has pointed out, he has his precedent under the Arts Council legislation for the actual wording of this amendment. There is not the slightest danger that the second part of it could be interpreted or could be operated in such a way as to be taken as a request to the board for justification of their decisions. I would urge the Minister very strongly to accept this amendment as it stands. I do not believe he is weakening the Bill in any way in doing that.
The Minister made another point which I think is a valid and an obvious one, namely that the amendment, because it is an amendment to this Bill, can only, if it is accepted, relate to the functions of the appeal board under section 2 of this Bill. That is so but the Minister can remedy that situation too and make it applicable to the film censorship code generally by introducing a very simple amendment either on Report Stage or introduce a very simple further amending Bill to extend the provisions of this amendment to the rest of the film censorship code.
Senator O'Higgins should bear in mind when he draws the parallel of the Arts Council that the very nature of the appeal board's work is basically extremely different from the nature of the work of the Arts Council or indeed the work of many other statutory bodies which produce and submit annual reports to the Government to be laid on the Tables of the Houses of the Oireachtas.
As Senator O'Higgins pointed out, the amendment as it stands, even if I were to agree to what is urged in principle in it, I could not accept. I would not be prepared even on Report Stage to introduce an amendment in the more general terms which would be necessary if the thing were agreed, without first having the opportunity of considering the matter at greater length.
I do not like intervening, but while the Chair does not rule on the question of a hypothetical amendment, it is doubtful if an amendment in the terms suggested would be in order because it is likely to be outside the scope of the Bill.
"The Act is an Act to amend and extend..."
The Chair is not prepared to rule on a hypothetical amendment. The Chair is merely giving a hypothetical warning.
And I am giving just a hypothetical answer.
I have gone so far and I think Senators might accept it as being a reasonable effort on my part. I have said that I am prepared to discuss these matters with the appeal board and to put the views of Senators to them to see whether they would be agreeable in the future to having their annual report made public. It would be, as the House well appreciates, absolutely unfair of me, even if I personally wanted to do it, to publish their current or any previous reports because they were prepared and submitted to my predecessors on the basis that they would be treated as confidential. At the same time, I think Senators are not being very realistic in their approach that it does not matter at all if the board do not say anything worthwhile so long as we get a report from them.
As far as I know, the reports consist mainly of statistical abstracts, which are published, as I said earlier, and which are available to any Member of the Oireachtas. The remainder of the reports consists of comments on current trends in films and on certain types of films. Those have been issued up to now on the basis that they will not be published and I would be in breach of that confidence if I were to publish them. I will go this far, and I respectfully suggest that it be accepted, that I will discuss with the appeal board the possibility of publishing their full report in future even if this has the effect of their producing a less valuable report than they have done up to now.
Although I do not say that what the Minister has said is entirely acceptable to me, I accept his mentality—perhaps we share the same mentality on this question— but I find it impossible to defend the position that when discussing this matter with people who are not Irish we adult people have to say this is determined for us by private trafficking between the censor and the appeal board on the one hand and property owners in particular films on the other as to whether films are to be shown in public without any reason being given other than that the principles of the basic Act are being applied by them.
I suggest it is difficult to justify this from the point of view of the reputation of our country. I think it is not adequate to say that the appeal board might produce a less full annual report in future if they choose to do so. Any Minister can give them the necessary power to do it. This is not a satisfactory position. The Oireachtas should be given an opportunity to consider the larger argument in respect of enlightening the public and of giving people generally an opportunity to consider questions of taste, art and so on.
With regard to subsection (2), I am not happy with the language I have used in the amendment and the Minister has drawn my attention to it. I should like the Minister to consider even at this stage reintroducing it in language of his own, containing an appropriate proviso protecting the appeal board and the censor in these matters, which are very important. I think it is an indefensible position for Irish people to have to say that even parliament is not able to know the actual procedures, practices and principles of the censor and the appeal board—that these should be a matter of confidence between the private property owners, the censor, the appeal board and the Minister.
Senator O'Higgins, the Minister will agree, made a valid point when he said that everything the Minister is told by the appeal board is not in the annual report, which is an agreed document. One knows that in exchanges between other Departments, State bodies and Ministers, much of that which is said does not and should not appear in their reports. It might not be in the public interest that it should. In any case, a clever draftsman could get a new section drafted here by tomorrow morning.
Did I understand the Senator to say that he was against private property—that a renter who rented a film must show that film, that whatever the censor did he must show the film? If the censor made cuts, I understood the Senator to say that the renter could not withdraw the film, that he must show it.
I do not know what the Senator understood me to say, but I did not say that. My position as far as private property is concerned is to be found in the Constitution.
Miss Bourke
We have reached an impasse to some extent in so far as the Minister has made known his attitude, which I consider to be rather flexible. Purely on a point of information, I wonder if he considers he has the power mentioned under section 12 of the principal Act:
The Minister for Home Affairs may by order, from time to time, make, and when made vary and revoke regulations for carrying into effect the objects of this Act, and in particular for regulating the conduct of the office of the Official Censor, the making of applications to him, the granting of certificates by him, and the bringing of appeals to the appeal board.
Under the terms of that section, does he consider he has power to have the reports made available in the Houses of the Oireachtas to such an extent that it would meet the genuine desire of Senators to have some sort of accountability or information process set up between the statutory body and Parliament?
I have not really studied section 12 of the 1923 Act with a view to ascertaining whether I have the power which Senator Miss Bourke suggests. What the Senator has suggested may be a way out of our impasse. It might well be that after I had discussed the matter with the appeal board I would consider making regulations under that section. I would not undertake to do that until I had a full discussion on the matter with the appeal board.
In reply to Senator Alexis FitzGerald, I might say that in dealing with a film one is dealing with a piece of private property, as Senator Ó Maoláin has pointed out. There may have been one copy of that particular film in the country at a time for the purpose of giving it to the censor. The censor and the appeal board may have objected to the film. The person who submitted the film may live in the United States or elsewhere. Presumably the film is sent back to him. It is unlikely that a copy could be obtained again. The rather foolish position could exist— although it is not unknown in this country—where members of the public or of the Oireachtas would form judgments and make criticisms about something they had never seen. That is another reason why I feel that the view I have taken on this particular matter is the correct one. The appeal board are in the advantageous position, which no Member of the Oireachtas or the public are in, in that they have viewed the film in question. I would go so far as to say that 99 out of 100 times it would not be possible for any Member of the Oireachtas or the public to view such a film. For that reason, ipso facto, no member of the Oireachtas or of the public is in a valid position to dispute with the appeal board about their decision in the matter. When legislating we need to be competent——
There might be a question of consistency here. I understood the Minister was arguing strongly originally that it was not necessary to have this amendment because such a report was already made.
That was in connection with one of the subsections.
The amendment stands as a whole.
The report is there.
The Minister does not want a report in case some members of the Oireachtas might not be able to read it.
That is a complete twist.
I do not think what Senator O'Higgins says is correct.
I would be very satisfied with all the Minister said if the Minister had stopped at the point where he said he was prepared to consider making an order under section 12 of the principal Act. The Minister was tempted to go on to an entirely irrelevant discussion with regard to property. The Minister was yielding to a temptation. In putting it in that way I am in a difficulty in that I do not know whether or not to invite the Minister to restate what he was saying at one point in the discussion.
Or to restate it without help from Senator Ó Maoláin.
Let us have a vote and be done with it.
I was inviting the Minister to repeat what he seemed to be offering the House. The Minister seemed to move away from it.
I will restate as follows: I am prepared, having heard the views of the appeal board and subject to my having power under section 12 of the 1923 Act, to consider making an order. I am not prepared to give a blanket undertaking that I will make an order. Having heard the views of the appeal board and of other interested parties—but principally of the appeal board—I should be prepared to consider making an order. It depends firstly on whether I have the power and whether having heard such views I consider it the proper thing to do.
If the Minister considers the matter and finds he has not the power to make an order the Seanad are deprived of their opportunity of making their voices heard on this amendment. It has been said that we will sit tomorrow. Would it inconvenience the Minister to have the Report Stage tomorrow? We can assure the Minister that there will be no discussion tomorrow on the Report Stage.
The Senator will appreciate that it would be impossible for me to consult with and to obtain the considered views of the appeal board on such short notice.
Between now and tomorrow can the Minister establish whether he has powers to make such an order under the principal Act?
The Senator should be as good a judge as I am on that.
If the Minister has not that power we want to give it to him so that we can blame him for exercising it incorrectly.
Having looked at the Act, I have concluded on balance that the Minister has not the powers. One of the objects of the Act is not to produce an annual report.
A further point occurs to me that, whether I have the power or not, there is nothing to stop me publishing the report if I thought fit to do it.
There is no obligation on them to give the Minister a copy.
I have already received one.
The Minister has given them notice that there is no obligation on them to do so.
Amendment, by leave, withdrawn.
Section 3 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.