As I expected it would be, this has been a very valuable debate, the most exhaustive, representative discussion of broadcasting in Ireland that has taken place in many years, even covering much ground that was not entered on in the debate on the original Act.
In replying to a debate so far-ranging I am in a little bit of a dilemma in that I do not want to be too exhaustive. I spoke at considerable length in opening this debate. Neither do I wish that Senators should feel that there is anything perfunctory about my reply. I think I shall err on the side of the exhaustive rather than the perfunctory. I do not think that I shall be able to conclude this evening, though I have a fair amount to say this evening. I am influenced by the fact that many Senators made the point, of which I accept the force, that in my opening statement I did not explain adequately the concept of the second channel or my concept of rebroadcasting. Many Senators on both sides made that point. I fully accept its force. I want to go into that. It requires to be gone into at some length. At the same time there are a number of other major points that were raised that need to be answered at this stage of the debate.
What I propose to do tonight is to deal with all the major aspects other than the open broadcasting or rebroadcasting, second channel, and when we resume in the morning to deal with that aspect which I think, after hearing the debate and the commentary on the debate in the country, is probably the aspect of this Bill that is of most interest, gives most hope perhaps to some and most concern to others. I would like to deal with it reasonably thoroughly.
In my reply to this stage of the debate I shall not attempt to cover all the points that were raised. Many of them will more appropriately be dealt with, as far as I am concerned, on Committee Stage, although of course they were quite rightly raised by Senators at this Stage. Important points, for example, have been raised about the subject of local broadcasting, about which there will be much to be said, I hope, on Committee Stage.
I would like to deal now with the main areas of the debate and of the Bill. Senator Markey identified these I believe correctly as the complaints commission, the control of broadcasting matter, the idea of open broadcasting as envisaged by the Minister and the procedure for the removal from office of members of the Authority.
I now propose to deal with three of these areas, leaving over until tomorrow the question of open broadcasting. These questions are not all of the same degree of importance or equally controversial. I shall take them more or less in ascending order of the extent to which they bulked in the debate.
First of all, I take the question of the procedure for the removal of members of the authority. Most Senators who considered this aspect regarded the new procedure as an improvement. Senator Horgan, I believe, put the matter in a nutshell when he referred to this and other sections of the Bill—to which I shall come later—as writing into law "the idea that a body set up by the Oireachtas is fundamentally responsible to the Oireachtas, and not just to part of the Oireachtas, the Executive". I agree entirely with that formulation. I wish I had thought of it myself. This essential concept was as I say, approved by most Senators who referred to it. Some Senators, among them Senator Killilea and Senator Dolan and one or two Senators today, suggested however that this provision represented a "shirking of" or "shrinking from" his responsibility by the Minister. I would like to say that the exact opposite is the case. This section—and the section about statutory directions which is analogous in respect—represents not a shirking or shrinking of responsibility but an acceptance of the principle of the Government's responsibility to the Oireachtas in such matters and, more important, an extension of the application of that principle in practice. It will still be for the Government to take the decision whether to remove a member or members of the Authority but if they decide to remove a member or members they will have to convince both Houses of the Oireachtas on the propriety of that decision. These Senators suggested that by adopting this procedure the Minister was in some way making things easier for himself by a transfer of responsibility to the Oireachtas.
We are all Members of the Oireachtas and I wonder if that argument can be seriously presented in the Oireachtas. I think that on consideration the Senators will see that a Government which impose upon themselves a new statutory responsibility to the Oireachtas in such a matter are not making things easier for themselves but quite the contrary: they are making things a good deal harder for themselves in order to uphold and clarify the concept of democratic responsibility in relation to broadcasting. Of course the clarification is very important here, the bringing of things before the Oireachtas and therefore before the people in open debate so there is nothing being swept under the rug, nothing being held back.
It is claimed that it does not matter that since the Government of the day enjoy the majority in the Oireachtas that they steamroll the thing through anyway and they get whatever they like. I do not think it is quite like that. If a Government have a bad case in such a matter-Governments may have bad cases from time to time— they will shrink from that test and the test is there in order to make them shrink.
When one speaks of the Minister or the Government accepting this or that limitation in this or any other piece of legislation, one is saying something which is true, but only part of the truth. If the Oireachtas makes this provision into law it will be binding on any Government unless and until it is repealed. This Bill, if passed, will ensure that no Government will in future be able to dismiss members of the Authority before the end of the term of office fixed for them when they were appointed, without first getting the approval of both Houses of the Oireachtas. I think it likely that this provision, if passed into law by us, will become a permanent part of our broadcasting law. This was a reason on which Senator Kilbride very ably touched. It will be hard for a Government to come forward and say: "Listen, I have to come before the Oireachtas at the moment if I want to sack the Authority. I do not like that, I would rather have the authority that we had before to sack them without asking anybody or telling anybody and without giving any reason. I would like to have that power back. Give it back to me."
I may not get a very good Press for this Bill. I got a reasonable one and I am not complaining. I think any Minister who came forward with that proposition who said: "I want to dodge the scrutiny of the Oireachtas, I want to recover total arbitrary power in that matter", would get a very bad reaction and so long as we have a democracy he is not likely to do that. Therefore I think this is one aspect of this legislation which may well stand the test of time for that reason. As I say, the main point about this is that decisions in this sensitive area and the reasons for them shall henceforward be made openly and be subject to closer scrutiny.
I was surprised that one or two Senators this evening stressed how easy it would be for me to abuse or dismiss the Authority. Coming from those benches, that is a strange criticism, given the history of this matter, but I shall not dwell on that aspect.
Some Senators suggested that if the Oireachtas is to be responsible for removing members of the Authority from office, the Oireachtas should also have power to appoint them. This does not follow. Within a period of appointment, which is an important limitation, the security of members of the Authority, if this legislation is passed, will be very like that of judges: who cannot be removed from office except for stated misbehaviour and then only by approval of Dáil Éireann and Seanad Éireann. But, of course, under Article 35 (1) of the Constitution, judges are appointed by the President on the advice of the Government, not by the Oireachtas, and their appointments do not require the approval of the Dáil and Seanad.
There are good reasons for that. I am not sure whether the idea of appointment of members of the Authority by the Oireachtas was really mooted as a serious proposition in itself, or whether it was not simply intended to discredit or disparage the idea of requiring dismissals to be submitted to the Oireachtas. It is clear in any case that there is an important distinction between the two concepts. The Government are appointed by the Oireachtas and the qualifications of their members can be subjected to debate there, often very sharp debate. Politicians accept that—that is what they are for. Neither judges nor private citizens, such as those who accept appointment to State bodies like the RTE Authority, have chosen to submit themselves to such ordeals, which might be actually harmful to their future discharge of their tasks. The case of a dismissal, which would be expected to be a rare event, is different in kind and in this case it might be expected that the person or persons concerned would welcome an opportunity for the vindication of his, her or their position. For these reasons the Government consider that, while the final decision to remove members of the Authority from office should be in the hands of the Oireachtas, the appointment of the Authority should continue to be on the same basis as appointment to all other public boards, that is, a matter for Government or ministerial decision, and so it will be under this legislation if it is passed.
The second area with which I wish to deal now to some extent is that of the complaints commission. I will come in a moment to what I mean by "to some extent". The number and nature of the questions posed by Senators in relation to the commission show that there are genuine and fairly widespread perplexities about what the commission are supposed to do. I should have liked to answer all these questions at this stage, but I think from the tenor of the debate so far Senators would prefer me to use their time to make a more extended statement at this stage of the debate on the open broadcasting question. Accordingly, I will deal in detail and at length on Committee Stage with the questions raised on the complaints commission in the debate, but I would just like to make a few general points on this subject now.
Senator Horgan suggested that the commission would be an example of elephantiasis, and a number of other Senators said they would be too elaborate, too cumbersome and too ponderous and so on, all of which seems to fit into the same diagnosis of elephantiasis. The sections of the Bill dealing with the setting up of a complaints commission are lengthy and seem complex with the result that Senators may have got a wrong impression—I think they have—about the proposed commission. In fact the body that would be set up would be quite simple in character. It would consist of part-time members and would consider only unsatisfied complaints alleging breaches of the requirements regarding objectivity and impartiality, of the prohibition on broadcast of any matter that may reasonably be regarded as likely to encourage or incite to crime and so forth—whatever may be the final wording of that section, or any statutory direction issued in this connection and so forth. They would operate in precisely the same way as the existing complaints advisory committee, the only difference being that, in order to demonstrate their independence of both RTE and the Minister, they would be serviced by the Department of the Public Service.
Though it is possible that the volume of complaints might increase somewhat as a result of the publicity arising from discussion of the new legislation, it is hardly likely to reach anything like unmanageable proportions. Experience with the existing advisory committee is a good enough indication of the likely volume.
Senator Alexis FitzGerald asked for information about how the complaints advisory committee have worked. Three complaints have been made to the committee to date, curiously enough, the same number as was submitted to the equivalent British body last year. The complaints concern (1), unbalanced coverage arising out of a speech by the Minister in Waterford in February, 1974 —not a complaint by the Minister; (2), unbalanced reporting relating to a public meeting at Coláiste Mhuire in June and a private deputation by LFM to the Minister for Finance on the same date; and (3), one-sided broadcasts in connection with the Contraception Bill. In all these cases the committee found in favour of RTE.
It may be asked: if unsatisfied complaints are so few, why bother with a statutory complaints commission? The answer is that it is of considerable importance to have this mechanism in existence so that when complaints are made about alleged breaches of impartiality, neither the Authority nor the Minister are seen to be judges in their own cause. That is very important because in the past the vacuum left in the legislation meant that the sole judge of impartiality and so forth was the Minister of the day. The Minister could take a position on impartiality, on matters affecting his own Department, or appearances of the Opposition on television and so on. That was undesirable.
The knowledge of the existence of this mechanism should of itself contribute to a reduction in the number of unsatisfied complaints on this important question. There are many other matters relating to the complaints commission that I have not answered here but I shall make a statement on the Committee Stage on the complaints commission, explaining in more detail how they will be expected to work and answer the various points made.
The third area of concern to which I gave quite an amount of time, perhaps too much, in my opening remarks, is that identified by Senator Markey as "the control of broadcasting matter", that is, the restriction imposed on the Authority and the power of intervention conferred on the Minister by sections 3 (1A) and 16 of the Bill, replacing the existing section 31 (1) of the 1960 Act. Though I could not undertake at present to construe with any degree of precision the attitude of the main Opposition group in the Seanad to these provisions, it seemed from the debate that there was a fairly wide concensus to the effect that some statutory constraint is necessary in this area. Senator Mullen, for example, said: "I am not advocating that the IRA, Provos or Official IRA should have a free run on RTE". Senator Robinson said, and I quote from Volume 79, column 931:
There is justification for State censorship, it is enshrined in our Constitution and it is reflected in our laws and reflected in both the Broadcasting Act and this Bill.
Both these Senators were, of course, critical both of the Bill and of existing practice, and I merely quote these particular remarks to show how far consensus appears to extend on the principle that some form of restriction on broadcasting in relation to these matters is justifiable.
In my opening remarks I spoke at some length on what one might describe, perhaps pretentiously, as the philosophy behind such restrictions. Not many Senators entered into this territory but those who did, notably Senator Horgan and Senator Michael D. Higgins and to some extent Senator Robinson, had important things to say which have to be answered at this stage, if at all, as they are intrinsically unlikely to arise in Committee.
Senator Horgan's statement was a very weighty one which I believe will be carefully read and considered by broadcasters and journalists in this country. I find myself in agreement with much of what he said, and disposed to further reflection rather than contention over much else. There are, however, some points on which I would like to comment at this stage. Senator Horgan seemed to me to rely to an extent greater than I think the Oireachtas would be justified in relying, on what might be called a kind of inner light guiding broadcasters in these matters. He said, quote:
The good professional journalist operates in terms of impartiality by the seat of his pants. He does not need maps to guide him. He has, I would hope, an in-built professional instinct born of his experience and of his training, if he is lucky enough to have any, which tells him whether or not he is being fair, not just to the people with whom he disagrees but to people with whom he agrees.
Elsewhere he said:
the proper place for this kind of concern——
and this is concern with matter which might lead to crime and so on
——is not an Act but basically in the professional conscience of people involved.
I would agree generally that the more things can be left to the good sense of broadcasters the better it will be, and I would agree that broadcasters have as much good sense as other sections of the community. But I think also that the State which is responsible to the citizens generally and not just to broadcasters, must retain a reserve right to intervene where is considers that the activities of broadcasters may be likely to endanger the community or a section of the community. It is not enough to leave this to the professional conscience of each individual broadcaster. A broadcaster's individual judgment might tell him that it was right and proper, in a particular circumstance, to broadcast most inflamatory matter and he might, quite sincerely and with a good conscience as far as he was concerned, act on that judgment. Such a case is rare but it can occur— I would even say it has occurred—and the community, through the democratic organs which represent it, has to have reserve powers of intervention in such a contingency.
This grand question of the right of democracy to protect itself is central to this part of the debate. There seems to be some misunderstanding in this area. Senator Robinson, for example—I am sorry she is not here as I do not like to criticise her in her absence; however, she will read what I say and come back later—having rightly noted the emphasis which I placed on "the fact that democracy is under attack" went on to say, wrongly, that I
identified this with criticism of the existing Government, the status quo and the establishment in this country.
I do not understand how Senator Robinson can have drawn the first two inferences from anything that I said here or elsewhere. I do not identify, and never have identified, criticism of the existing Government with attack on democracy. Quite the contrary, I regard freedom to criticise the existing Government as an essential part of democracy and I made clear in my opening statement that I took that view. Nor did I identify criticism of the status quo with an attack on democracy. Democracy provides the opportunity of changing the status quo by peaceful means, and is, therefore, the healthiest political critique of the status quo.
As regards the establishment, that is a loose term used in various senses and I am not sure what Senator Robinson means by it. She uses it quite a lot. I know, however, that the term is often used as a kind of pejorative hold-all which can include the parliament, the judiciary and the other institutions of a democratic state. In that sense I object to the term "establishment" and I consider the use of this term in that sense as a way of attacking democracy. I am not saying that Senator Robinson used it in that sense. I do not know in what sense she was using it. Perhaps at some stage she will make it clear. I am suspicious of those forms of support for a vaguely conceived ideal democracy which involve contempt for the actual working institutions of democracy, including this Oireachtas.
There are ways of setting one's democratic sights so high that the basic distinction between democratic systems and undemocratic systems drops out of view. Senator Robinson seemed to be in some danger of doing this when she said, as reported at column 928, Volume 79 of the Seanad Official Report:
I do not think that this country is as democratic as any in the world. The powers of Government and administration are highly centralised, and a substantial area of public concern is outside the control of the democratic process in a direct sense because it is under the control of State-sponsored bodies and we do not even have any parliamentary committee reviewing the performance of State-sponsored bodies.
We have failed to evolve mechanisms for allowing the individual to complain effectively against the administration—institutions such as an ombudsman or such as an impartial tribunal relating to the Garda. We do not have any regional democratic structures. On any objective analysis of the system in this country we do not come out as one of the most democratic countries either in Western Europe or in the world generally and we are fooling ourselves if we think we do.
It might be more democratic to have certain kinds of Parliamentary Committees, to have an ombudsman or a Garda review body and so on. Some people think it would be more democratic to abolish University representation in the Oireachtas. But these matters, signficant though they may be, are peripheral refinements in comparison with the large crude fact about democracy: that it is the system under which people can change the Government under which they live through the ballot box.
Over insistence on the desirable refinements which are not there, combined with a tendency to ignore the basic fact which is there, involves a danger of selling the precious reality of democracy short. It tends to undermine the right of democracy to defend it. The inference can only too readily be drawn that a democracy so flawed is no true democracy at all. There are those who are only too ready to draw such an inference for purposes which I am sure Senator Robinson neither intends nor approves. The fact is that she is herself such a sheltered flower of the democratic system that she has difficulty in realising how unusual and how menaced a system it is. She thinks, for example, that we in Ireland "do not come out as one of the most democratic countries either in Western Europe or in the world generally". The great majority of countries in the world have no democracy at all and never had any. Some had and have lost it. They are countries in which the government change when the armoured cars arrive at the President's palace, and not otherwise.
To the extent that we allow armed conspiracies to flourish among us, we too are in danger of being brought to that condition. That is why some of us think it of more importance to expose and frustrate the varied activities of these conspiracies than to dwell excessively on relatively minor shortcomings of our parliamentary institutions.
In general, I think people in this country are not sufficiently aware of how remarkable an achievement our democracy is. Two American political scientists, S.M. Lipset in a book called Political Man published in New York in 1963, and Frank Munger in a paper called The Legitimacy of Opposition; published this year in London, show that very few countries with as few resources as ours and very few countries which have attained political independence in this century, have succeeded in maintaining stable democracy as we have done. Our achievement may, in fact, be unique when these two factors are combined. I think this is one case in which we are justified in taking a sober and wary pride in our achievement rather than disparaging it by dwelling excessively on its shortcomings.
Before leaving that particular subject I would like to refer to Senator M.D. Higgins' comments. He was somewhat bridled at the mention of the democratic value enshrined in our Constitution. He thought it should be "all the values" enshrined in our Constitution. Some of the things enshrined in our Constitution have been removed by the people. The most key factor of the Constitution is that it provides within itself the means of changing it by democratic process, by the will of the people.
That is why the Bill speaks of "the democratic values" enshrined in the Constitution, that which does not change, that which cannot change as long as this country remains a constitutional democracy. It is important, therefore, that broadcasting should protect that and not any specific Article of the Constitution which, other than the democratic values, may change and which many of us think ought to be changed.
I promised in my opening remarks to give careful consideration to any suggestions by Senators which improve the wording of sections 16 and 3 (1) (a) of the Bill which provides:
...wherever it can be shown that different wording would tend to eliminate possible abuse, without seriously endangering the objectives sought in these sections...
A number of Senators, who I know support that general objective, expressed considerable misgivings about the wording of these sections, and especially the reference to "disorder", which they felt might lead in certain circumstances to use of the Bill for purposes for which it is not intended. This wording is in the British legislation: it has not been significantly misused there—not misused at all as far as I know—and I would hope it would not be misused here. At the same time I attach weight to the objections of these Senators.
Senator Halligan, in his very thoughtful contribution to this debate, made a suggestion which will, I think, lead to an acceptable solution of this difficulty. His suggestion involved the removal of the reference to "disorder"—many Senators pointed out that "disorder" could be too widely abused—and the inclusion of a reference to "the security of the State", a matter on which, as he rightly pointed out, I laid considerable emphasis in my opening remarks. I shall keep in touch with Senator Halligan and any other interested Senators on either side of the House between this and Committee Stage and I think it should prove possible to frame an acceptable amendment on the general basis of Senator Halligan's suggestion.
Senator Noel Browne said a good deal about violence in the course of his rather discursive remarks here. Much of what he said was interesting, and I agree with much of it, as the Senator knows. But I found from sad experience that there is nothing that the Senator hates more than to be agreed with. The Senator's view of the world is that he, and he alone, is sincere in believing the things he believes. Anyone else, therefore, who may appear to be saying somewhat the same things is suspect in that precise degree, and will soon need to have his insincerity exposed and his character flayed. So I will not dwell on the extent of my agreement with parts of what the Senator said. His was a rather rambling speech and I shall not attempt to accompany him on his rambles. He likes to be alone and I cheerfully respect his wish. Just one or two points, however, need to be made. As regards violence he said —Seanad Official Report, Volume 60, column 967:
It was from our teachers in our schools that we learned about this violence.
He goes on to inquire why I do not talk about that and then supplies his own answer which is that I am "a petty, cowardly bully-boy poltroon". The fact is that I was talking here about broadcasting rather than about education, because I was introducing a Broadcasting Bill and not an Education Bill. As the Senator knows, I am concerned about teaching that incites to violence and I have spoken about that in appropriate places in the Dáil—see, for example, Dáil Official Report, Volume 259, No. 2 columns 246-9—at meetings of teachers and, for example, at a conference of teachers of history. And I have discussed it with the Minister for Education, who is in full agreement with me on this subject and is also on record to that effect.
But it is broadcasting we have to discuss here. It is true that Senator Browne may not have felt much obligation to keep to the point, since he repeatedly said that he regards the Bill—the subject under discussion here—as itself totally irrelevant. The word "irrelevant" is one often used by students as a sort of all-purpose, knock-down-drag-out, term of rejection. It is used to dismiss a proposition which you do not understand when put forward by a person you do not like. I think it was in that sense Senator Browne used this term.
While the Senator was clear in the negative sense in his rejection of this Bill, he was vague, though intense, about what it was he wanted. The only specific thing he seemed to urge was that we should imitate the example of Holland, a country, he said, "notoriously advanced in its views...a very civilised and advanced country". I share the Senator's admiration for Holland. The broadcasting legislation of Holland, which the Senator holds up for our emulation, provides that, and I quote:
transmission must not contain anything that involves danger to the security of the State, public order and morality.
The Senator can tell us on Committee Stage whether he recommends that formulation.
As regards Senator McGlinchey's speech—very few of the people I am talking about seem to be here this evening—I think there is only one thing which it is needful for me to put on the record. Senator McGlinchey at the beginning of his remarks said he was sure I would be relieved that Senator M.D. Higgins would not be a candidate for the post of Director-General of RTE and that the Minister would, and I quote:
recall with sadness his efforts to ram the name of the director of his propaganda machine down the throats of the RTE Authority with no success.
That statement is completely untrue and also damaging to a person who cannot defend himself here. I, therefore, cannot leave this statement uncorrected on the record. The gentleman to whom the Senator will be understood by some as referring is the Director of the Government Information Services, Mr. Muiris Mac Conghail. Mr. Mac Conghail was at no time a candidate for the Director-Generalship of RTE and I at no time intervened to have him appointed to that or any other RTE post. The Senator appears to be relying on a Sunday newspaper report, garbled in itself, which claimed that I had tried to have another gentleman, whose Christian name also happened to be Maurice—and that is the bond between them—appointed as Director-General. The Senator took a garbled newspaper report, not only made no attempt to check it but distorted it still further and presented it to the Seanad as fact. I shall make no further comment on that Senator's utterances.
I have now reached the point in my remarks where I would be entering on the subject of rebroadcasting, so I will draw to a close. There is just one point I will make before I close. Some Senators—this needs to be cleared up here and now—referred in dealing with this to an abandonment of sovereignty, to handing over the national broadcasting resources to foreigners and so on. Nothing of that kind is involved here. The proposal is that we shall, if Parliament and the people approve, use the transmission material which we are putting in, to rebroadcast BBC services. We can drop that at any time we like. We can retain complete control over our own territory and over our own broadcasting system. If the people do not like what is being rebroadcast, we will simply drop that and broadcast something else, which could be RTE 2 or something else. There is no abandonment of sovereignty here whatever. I would like to develop the rest of my thoughts about rebroadcasting. So, with your permission, a Chathaoirleach, I will resume the debate tomorrow.
