It is suggested that amendments Nos. 1 and 2 be debated together with separate decisions taken if required.
Broadcasting Authority (Amendment) Bill, 1975: Committee Stage.
SECTION 1
I move amendment No. 1:
To delete lines 14 and 15.
My amendment is simply to delete lines 14 and 15 relating to the definition of "rebroadcast". The principle adopted within our group, and indeed supported by other Members of the House from the universities and the trade union movement, is that section 6 should be deleted in toto. Section 6 gives power to the Minister to direct the Authority to rebroadcast programmes broadcast from any source other than the Authority. Subsection (2) goes on to say that the Authority shall comply with the direction under this section. Because of our opposition in principle under section 6 to any Minister of a free democratic State being empowered to direct an independent radio/television authority to rebroadcast programmes and that the Authority must comply with that direction to rebroadcast such programmes as the Minister may direct, we are opposed to the definition of “rebroadcast” as incorporated in section 1. It means a simultaneous broadcast by the Authority of a broadcast of another broadcasting organisation. This is consistent with our approach to section 6. The two are entwined. I must relate my arguments on this amendment to those that will be used subsequently with regard to section 6. They are both concerned with the rebroadcasting by another broadcasting organisation.
It is on this point of principle that objection is taken by a number of Senators here of all persuasions. The proper procedure, having established under the Broadcasting Authority Act, 1960 an independent Irish Radio Television Authority and having given it the authority to broadcast what we know as RTE, it flows from that——
The Chair should like to intervene here. Does the Senator wish to have the substantial debate on the principle of section 6 of the Bill to take place on this amendment?
No, I am merely seeking to say that this amendment is consistent with what will be our argument on section 6.
The Chair appreciates that the matters are connected but it would be wrong to do more than summarise the arguments in relation to section 6 at this point. It would not be possible to have two substantial debates on the principle, one on the definitions section and the other on the empowering section.
I appreciate that and I did not intend to do that. I intended merely to refer to the logic behind the amendment to delete "rebroadcast". The terms in which "rebroadcast" is set out in section 1 —"rebroadcast" being defined as "simultaneous broadcast by the Authority of a broadcast of another broadcasting organisation"— obviously tie in with what the Minister has proposed in section 6 and on which I can assure the Chair and the Minister we will have a very wide debate. Because, on that principle, we have very strong views on Irish sovereignty and the independence of the Irish State to order its own affairs through institutions established by the Irish State, the institution in this case being the radio television authority. By defining "rebroadcast" in section I as meaning "the simultaneous broadcast by the Authority of a broadcast of another broadcasting organisation" and then referring in section 6 to the direction to the Authority to rebroadcast programmes, we have here a definition in section 1 that is related to the ministerial directive to the Authority that is incorporated in section 6.
It is consistent with our proposed amendment to delete section 6 altogether. We put in this amendment here to delete the definition of "rebroadcast" because we are totally opposed to "rebroadcast" as defined in section 1. We are opposed to that, in principle. We are opposed to it under section 6. We do not see any need to have the term "rebroadcast" used. We see the need for RTE to be given a mandate to broadcast another series of programmes on a second channel that would be taken from the best programmes throughout the world. We do not acknowledge that there is any need to have a definition of "rebroadcast" written into this section when, in effect, it means taking for good or ill and in toto the broadcasting system of another country, that the Minister may direct the Authority to beam its news and its programmes for good or ill into this country without any control over such broadcasts.
I have no fewer than two points of view of this. Whereas, basically my contention would be very close to that advanced by Senator Lenihan, irrespective of what happens we should examine the actual terminology of this definition and see whether it means anything. Unless the Minister is attempting to do a legislative equivalent of Gertrude Stein, one cannot define a thing in terms of itself. When one looks at the word "broadcast" it appears in this definition section no fewer than four times either as "broadcast" or "rebroadcast". It seems to me that the very modest drafting amendment I suggested at least makes the definition read as sense whatever may happen to the definitions and to rebroadcasting under the provisions of section 6.
Might I support the amendment proposed by Senator Lenihan? As he says, we are totally opposed to the provisions of section 6 and when we come to that section we will explain in more detail why we are opposed to it. In addition to this point, there is also a technical point on the definition of the expression "rebroadcast" which the Minister should consider. As Senator Horgan has said, the fact that we may be opposed to section 6 does not necessarily mean that we cannot try to improve the wording of this. I suppose one could say that if the Minister insists on doing what he wants to do in section 6, he might as well do it correctly.
I put it to the Minister that the word "simultaneous" here is unnecessary and from his point of view could have undesirable results. Indeed, I am not at all sure why he wants to insert the word "simultaneous". The point I am making is that at present we have the same time as they have in Great Britain; we had last year and are likely to have next year, but one can never be sure. There have been from time to time quite strong proposals in Britain that they would, for example, go over to summer time all winter. Nor is there any real guarantee from year to year that our summer time will start and end at the same time as it does in England. The result of having summer time in England when we are still in winter time here would be that all broadcasts that would be normally at, say, 7 p.m. would be at 6 p.m., 9 p.m. at 8 p.m. and so on. If the Minister wants to do this at all, he should do it correctly. From his point of view the sensible reaction in that case would be that Radio Telefís Éireann would record the entire BBC programme, hold it an hour and then broadcast it an hour later so that it arrived in the homes of Ireland at the same time as it normally would have.
I cannot see that the word "simultaneous" adds anything to what the Minister wants to do. It could be restrictive in the way I have suggested. It would seem to be sensible either to delete the definition altogether — and I do not see any reason really for having it, everyone knows what "rebroadcast" means — or at least delete the word "simultaneous". If necessary I can put down an amendment on Report Stage to deal with this. It would be interesting, in any event, to get an explanation from the Minister why he wants to have these broadcasts simultaneous, in the sort of formal sense that he actually wants to include it in this definition.
Obviously there is the semantic difficulty that has been raised by Senator Horgan on the question and I am not sure the problem will be met by either amendment. If Senator Horgan's amendment were adopted it would mean, with regard to section 6, that the Minister may, after consultation with the authority, direct the authority to rebroadcast programmes broadcast from any other source than the authority and specified in the direction. The problem would still remain for us. First of all there is the difficulty that arises out of the statement in section 1:
"rebroadcast" means the simultaneous broadcast by the Authority of a broadcast of another broadcasting organisation.
I must agree with Senator Horgan that that definition would lead to Gertrude Stein looking as if she were horse-drawn. Indeed, if one might quote from a poem the Minister is very fond of quoting in other contexts, Yeats's The Island of Statues, I could remind him of the phrase “mirror upon mirror, mirror is all the show”. That seems to be what is happening within that section of the Bill. Even if either amendment is adopted, one will still be left with the problem in section 6, that the Minister may, either simultaneously or after an hour, broadcast the entire output of another station or rebroadcast a single programme from that other station. To me the difficulty about this is that it leaves in the hands of the Minister, particularly under Senator Horgan's redefinition or amendment, the right to direct the authority to broadcast a programme. Supposing the programme in question had been a programme which was in the can; supposing it was a programme interviewing the Minister himself for an hour or so on problems in Ireland and so on, the Minister could, even under Senator Horgan's amendment direct the Authority to rebroadcast that.
Not under this section.
But ultimately this section reverberates against the other section. If the Minister in question was a very vain man, or a man who was very keen on airing his views in public, it seems to me he could actually abuse that section no matter how it is amended. We cannot always hope to have a Minister as modest as is the present Minister for Posts and Telegraphs. Therefore, it seems to me that particular problem would arise. I wonder whether it would not be better to let these questions of definition rest, or indeed even withdraw them, until we come to the substantive material of section 6. It seems we could get snagged on this one all day. But it is when we come to section 6 that the crunch of this matter will arise.
First of all, I should like to extend to the Chair and to Senators my sincere apologies for inability to be here this morning. I was in Wexford and, by a misunderstanding, I was not aware until I was called there that I was expected here. I know inconvenience has been caused to several Senators. I greatly regret that and hope the Senators will accept this statement.
As regards the amendments, Senator Lenihan pointed out that amendment No. 1 is linked with the strong opposition of himself and his friends to section 6. As I am in favour of section 6, it follows that I cannot accept his amendment which I regard as consequential. I agree with Senator Martin — as I understand also did the Chair — that the main debate on this should be on the proposed deletion of section 6. I do not intend to pursue that matter further on this amendment.
As regards amendment No. 2, in the name of Senator Horgan, I should like to refer here to Government amendment No. 60, which refers to rebroadcasting an entire programme service. That is what is involved here. I do not think Senator Horgan's amendment gives me that. The wording of the proposed definition may appear cumbrous but it gives what we want to achieve under section 6. I believe and have had increasing reason to believe that what we want here is in accordance with what the people living in the single-channel area want. Stronger confirmation of this is coming in all the time. Therefore, I regret that I cannot accept either amendment No. 1 or amendment No. 2.
I asked the Minister to explain the purpose of the inclusion of the word "simultaneous" and its definition. Perhaps he could enlighten us.
Because that is what I want, and that is what the people, as I believe, of the single-channel area want — simultaneous rebroadcasting, to get the degree of simultaneity which viewers in the multi-channel area are already getting, and I think that is what they want.
I would like to refer also to something Senator Yeats said: he referred to improving the wording of the definition. When a Senator disapproves the entire intention of the section and of the wording designed to implement the section, I treat his efforts to improve it with a certain amount of scepticism.
I do not think that is good enough. One has a certain sense of order which makes one dislike the idea of legislating without making efforts to improve Bills which Ministers introduce. Frequently Ministers introduce Bills of which one may disapprove. Seldom do they introduce Bills of which one disapproves as much as certain parts of this one. nonetheless, I have every intention, in the course of this debate, of trying to improve certain parts of the Minister's Bill. I do not think the fact that I approve of the principle or not affects the issue. He has not attempted to give any answer as to why he wants to put in the word "simultaneous". I take it that what he wants is that, under section 6, the entire programme of BBC 1, UTV and so on should be broadcast to the people of Ireland and he can direct the authority to do this. He can direct the authority to settle in at 10.30 in the morning or whenever the BBC starts and continue until 1 o'clock the following morning or whenever they stop broadcasting. He has the power under section 6 to direct them to rebroadcast the entire programme of BBC 1 and so on without deletions, corrections, changes or, as he would put it, censorship. I am suggesting that he should leave himself the power to allow a variation of an hour as might be required by differences in time between Ireland and Britain. It seems sensible to me that he should do this. He has complete dictatorial control given him under section 6. He can direct the authority to do this whether they want to or not and to insist that they broadcast the entire daily programmes of BBC or UTV. Therefore, the word "simultaneous" is in no sense required in order to achieve that, to him, desirable effect. I am suggesting that he should allow himself some flexibility in this matter.
We are legislators here, and whether we approve of what he is doing or not, we should ensure that the Bill leaves here in as accurate a form as possible.
In relation to what Senator Yeats has said, I should clarify what I meant by what I said about improving the Bill. It is quite clear to me that Senators on both sides may very well improve this. Indeed, I am accepting certain amendments. What I remain sceptical about are attempts by Senators to improve something of which they fundamentally disapprove; they are apparently quite passionately against this section. I do not know that their suggested improvements are necessarily improvements from my point of view, which is the exact reverse of their point of view. I do not know what is the difficulty which some Senators seem to have about what I am looking for with the word "simultaneous". What I am looking for with that is oddly enough, simultaneity; the capacity of simultaneous broadcasts. This is what is wanted here. I should say that the use of "simultaneous" in the definition of a "rebroadcast" is standard in international usage, for example, in the Rome Convention on Copyright. Some Senators do not seem to be aware that there is any international usage in this matter. They seem to think this is the first time anything has been rebroadcast, which is far from being the case.
There are also extra costs involved if the rebroadcasting is not simultaneous. The main point here is that people in the single-channel area— though Senators opposite seem to have difficulty in believing this, but it is very true — want the nearest approach they can get to what is available in the multi-channel area. What is available in the multi-channel area involves, of course, simultaneity that reaches direct. They want that too, and it is the policy of the Government to try to provide those areas with the kind of service they actually want and not the kind of service that some Senators think may be good for them.
We have a number of amendments here. We want to get this debate on Committee Stage off the ground in the proper manner. The Minister comes in with a simplistic type of argument seeking to divide the Government and the Fianna Fáil group in regard to this matter. He has referred to these two amendments as being the amendments by the other side of the House. One has been put down by Senator Horgan. We in the Fianna Fáil group have put down a number of amendments. Very positive views opposed to the principle of the Bill to which my amendment is related, were expressed on the Second Stage debate by Senator Mullen of the Minister's party, by all six of the university representatives, who expressed themselves very positively on Second Stage and who — consistent with that opposition, in principle, to what the Minister proposes — have put down constructive amendments to the Bill. There is no point in trying to separate sheep from goats. There is no point in adopting a simplistic attitude. The Minister tends to have certain skill in putting up Aunt Sallies to knock them down. This is not a matter between the Government and the other side of this House. This is a matter between people, such as the Minister, who apparantly believe that there is no point in having a sovereign Irish State with its own broadcasting authority and people who believe that there is a sovereign Irish State that has a broadcasting authority established by law and that that authority should be asked to get on with the job of providing an effective second channel; in the course of doing that, it can with an inch of discretion, take the very best in the way of broadcasts from other stations throughout the world, including Great Britain and the North, that would be complementary to the first channel. That is what this is all about. And the Irish Transport and General Workers' Union, through their paper, "Liberty", have come out strongly in support of this point of view. It is a matter on which people in the trade union movement, in the Labour Party, in the universities and in the Fianna Fáil Party have very strong views because they believe in these basic principles.
For the sake of a constructive debate on Committee Stage, I would ask that we stop this nonsense of the Government taking this view and Fianna Fáil are against it. Stop the nonsense that it is a question of providing something for the single-channel area which the people in the multi-channel area have and which the Minister wants to give to the single-channel area. I would suggest to the Minister that that is not the issue. The issue is that, in the multi-channel area at present, there is a spillover from certain channels adjacent to us. This has nothing to do with a specific decision by the Irish Government, through legislation passed by the Oireachtas. What the Minister is seeking to do in this legislation, by an Act of this Oireachtas, is to empower himself to direct the Irish television authority to rebroadcast through the entire country.
The Senator is now anticipating the debate on section 6.
With respect, this part of section 1 which I seek to have deleted is consequential on section 6. The Minister agrees with me here.
The Chair is concerned that a substantial matter should not be debated twice in the course of Committee Stage. It would be perfectly feasible to debate section 6 in its proper order and to make any consequential amendments to earlier sections on Report Stage. The Chair has allowed an anticipatory debate on the definition section in order to facilitate Senators, but it cannot be allowed to develop into a full-scale debate on the principle of section 6.
I respect what the Cathaoirleach says, but I was merely following on the Minister's remarks seeking to ask him——
While the Senator was following the Minister's remarks the Chair did not intervene.
The Minister, in seeking to separate this House by talking about the Fianna Fáil Party as if we were the only people opposed to this Bill in principle, and indeed in detail on many sections, is putting the matter in an entirely false context. This is a matter on which we can have a debate and which everybody, except the Minister and the people he can whip through the Lobbies, opposed on Second Stage. The six university Senators, all the Fianna Fáil Senators, and Senator Mullen of the Labour Party, representing the major trade union in the country, are opposed to the principle of this Bill. If the Minister wants to get the debate going in a proper manner to suggest that only the Fianna Fáil Party oppose it is not the way to do it. There are many other people who believe in Ireland and its future and who are opposed to what is underlined in this Bill.
I cannot understand Senator Lenihan's attitude. Either Fianna Fáil have put down and intend addressing themselves to further amendments or not. So far they have not. Senator Lenihan apparently resents the fact the Minister points out that Fianna Fáil have taken a certain view and he has taken another view. As far as I know, that is exactly the situation. It may be that other Senators, whether they represent university constituencies or not, share to some extent, with regard to certain aspects of it, the Fianna Fáil view. That does not alter the situation that Fianna Fáil take a particular view and the Minister takes another view. The Minister has indicated that when a Senator completely disapproves of a section that he views with some scepticism efforts to improve that section. That was a perfectly fair remark.
I am intervening because I resent this debate being conducted in the manner Senator Lenihan wants it conducted, namely, whatever criticism Fianna Fáil want to voice they are free to voice it, but that if the Minister has the temerity to answer that criticism he is doing something which is in some way out of order, according to Senator Lenihan's book.
As regards the point made by Senator Yeats this underscores the difficulty the Minister was talking about. He urges that it is unnecessary to have the word "simultaneous" in the definition of "rebroadcast". Whether he is right or wrong, that is what the Minister wants. That is the difference between the Minister and Senator Yeats. If Senator Yeats deletes the word "simultaneous" from the definition section, then it is something else. It is not a rebroadcast of the type the Minister is asking the House to adopt; it is a rebroadcast of a type Senator Yeats wants the House to adopt. There is a conflict there. As I understand it, "simultaneous" means at the same time. The Minister wants a rebroadcast at time it is going out over the other channel. Senator Yeats wants the authority to vary it by an hour or two in case summer time is changed in England and not changed here, or vice versa. It is not then the same thing.
If there is a rebroadcast of a live programme, for example, under the definition as it stands in the Bill, and if Senator Yeats's position were to be adopted and the Minister were accordingly to order a rebroadcast an hour later, the Irish viewer is not getting the live broadcast the English viewer is getting. There is a clear distinction. They are two different things. One is a simultaneous broadcast; the other is not.
I do not want to labour the point, but everything the Minister said convinced me that most of this definition section is totally unnecessary. If the word broadcast means something in common parlance, then the word "rebroadcast" means to do the same thing again.
If the only import of these two lines is to ensure a simultaneity of rebroadcasting, I would suggest that the specific aim would be better met by an amendment to section 6 rather than by importing it into the definition section. When we get section 6 we will have another debate on this. The Minister might consider between now and Report Stage whether his desideratum of simultaneity is best met by this rather cumbersome definition in the definition section or by the simple addition of a word or two words in section 6.
I would like to return briefly to the Minister's suggestion. There are amendments from this party to sections of which he knows we disapprove. The suggestion is that somehow or other he need not bother much about them because he is suspicious of our motives. I suggest that he forget about the motives and look at the actual wording of the amendments. If he does that we will all get along better. After all, we are trying to frame legislation and I do not think our motives need worry him unduly if he looks at the small print.
When I raised the question of simultaneity, it had not occured to me that there was any deep matter of principle involved. It occurred to me to return to the matter which Senator O'Higgins raised. If somebody was going to look at a football match he might prefer to have his lunch eaten before it started and he would not worry if he saw it an hour later than somebody in Birmingham. I thought, in my innocence, that this would be a reasonable suggestion. However, it now seems that both for the Minister and Senator M.J. O'Higgins it has become a matter of deep principle that not one Irish hand should have any concern with BBC broadcasts, even to the extent of allowing an Irishman to run a tape recorder. At all costs, these rebroadcasts must bypass anyone in Ireland. To the Minister and Senator M.J. O'Higgins that is the basic meaning of the word "simultaneous". We are not on the same wavelength.
I was simply trying to explain the meaning of the word.
Before putting amendment No. 1 I would be glad to know if the House wishes to have separate decisions on amendments Nos. 1 and 2?
I do not propose to move amendment No. 2.
Amendment put and declared lost.
Amendment No. 2 not moved.
Section 1 agreed to.
SECTION 2.
It is suggested that amendments Nos. 3 and 32 be discussed together.
I move amendment No. 3:
In line 17, to delete "are" and substitute "have been".
I brought in these amendments in connection with another problem of what I might describe as simultaneity. The words are ambiguous. The Government may be removing a member of the authority and have tabled a resolution for debate by the Oireachtas but not actually have passed it. It is plainly the intention of the Government and the Minister that removal should be only consequent to the passing of resolutions by both Houses of the Oireachtas calling for the removal of a member of the authority. The intention of my amendment is to make this absolutely clear.
I support Senator Horgan's amendment. It seems to be palpably the intention of the clause and I would be very surprised to discover that the Minister held a contrary view.
I will give consideration to the point made by Senator Horgan in relation to amendment No. 2. As regards these amendments, under the sections, as drafted, a member of the authority or the commission could not be removed from office until after a resolution had been passed by the Oireachtas. The proposed amendment does not appear to add to the subsection or clarify it. I regret that I do not agree with it.
On the Minister's assurance I do not propose to press the amendment any further. Nothing could be clearer than that.
Amendment, by leave, withdrawn.
Question proposed: "That section 2 stand part of the Bill."
If it is necessary to have this brought before both Houses of the Oireachtas to remove a person from office, the same standards logically should apply to the appointment of the Authority. This section says:
A member of the Authority may be removed by the Government from office for stated reasons, if and only if, resolutions are passed by both Houses of the Oireachtas calling for his removal.
The logical conclusion to draw from that should be that if it takes both Houses of the Oireachtas to remove a person the same principle should apply to appointing people to the Authority, rather than giving the Minister the authority of appointing them.
I referred in my conclusion to the Second Reading to the analogy of other appointments, that judges cannot be removed except by the Oireachtas. They are, of course, appointed by the Government. I indicated then the reasons why I proposed to follow that precedent.
We are in favour of the change made by this section because it is an improvement on the existing situation. While the status of the members of the Authority is improved by the fact that they can no longer be dismissed except by a resolution passed by both Houses of the Oireachtas, nonetheless in the event of this Bill going through as it stands, they will be far more under the control of the Minister and the Government than they ever were in the past. We will deal with these matters later on. Under a number of sections of this Bill there is a greater element of Ministerial control over the Authority than ever before.
Question put and agreed to.
SECTION 3.
It is proposed to group amendments Nos. 4 to 10 and debate them together.
When it comes to the point of decision, I do not propose to move amendment No. 4 in my name because I believe my amendment was largely met, although perhaps not wholly satisfactorily, by the Ministerial amendment.
Let us be clear on this point. In order for the debate to take place there must be a motion before the House. Accordingly the Senator must decide now either to move or not move amendment No. 4.
I move amendment No. 4:
In page 2, line 23, to delete "news" and substitute "matter".
I would like to concentrate my attention on Government amendment No. 6, which is now being debated. To a certain extent it is an improvement on the original wording of the Bill. There is one particular aspect which leads us into the realm of nonsense. The second last line of the amendment refers to matter which is:
published, distributed, sold or exchanged by the Authority is presented by it in an objective and impartial manner.
It is one thing to say that matter published by the Authority should be presented by it in an objective and impartial manner — we can have a useful debate about that and particularly about the concept of impartiality — but it is another to say that material which is not just published but distributed, sold or exchanged by the Authority is presented by it in an objective and impartial manner. In the first instance, the Authority has control over both the publication, that is, the content of the matter and the presentation, the way in which the matter is delivered. I fail to see how any matter which has been released, sold or exchanged by the Authority can be controlled by it as envisaged by this section. For example, the Authority may sell a programme to another broadcasting station which will have total freedom to decide how, in what manner or at what time they are going to show that programme and in what context. As far as the Authority is concerned, they can even show it backwards for all they can do about it. What happens with what may be called split programmes or parts of programmes which are in themselves highly tendentious and are only balanced within the general programming of the Authority by other programmes or other parts of the same programme? How is the Authority to carry out its statutory duty under this subsection with regard to material of this kind which is distributed, sold or exchanged by it? We are dealing with a situation here where the horse is most definitely gone and any attempts by the Authority to close any stable doors could be totally ineffectual.
On the general area of impartiality I do not propose to go over the grounds I went over on the Second Stage of this debate, and which I still hold. Has the Minister considered the way in which the requirements of impartiality generally might operate so as to exclude special interest groups, particularly minority interest groups, from access to the airwaves? This is a major problem which every broadcasting station in the world is trying to cope with at the moment and which, as technology becomes more expensive and less accessible to people, especially to minorities, should be taken very seriously. However well meaning the requirement of impartiality as evidenced here without a saving clause to allow special interest groups access to the airwaves it could lead to the creation within the broadcasting service generally of a bland uniformity of a consensus point of view.
There are good and bad things about the consensus point of view but, especially in public service broadcasting, the consensus viewpoint should never be the only viewpoint expressed. Naturally, it will be the viewpoint most often expressed, but any impartiality requirement which rules out anything other than the consensus viewpoint, or anything which cannot be balanced by something equal and opposite, will inevitably militate against the smaller groups, the different, and perhaps multifarious shades of opinion in our society.
Like everybody else, I am very much in favour of the motion that a national broadcasting station should be objective and impartial in the presentation of current affairs and news. It is not because I object to that principle that I have tabled these amendments, but because that principle is almost unobtainable, if obtainable it is almost indefinable and finally, it cannot really be legislated for. Section 3 (1) (a) says that:
all news broadcast by it is reported and presented in an objective and impartial manner and without any expression of the Authority's own views".
But I would be much happier if it read "all news broadcast by it is presented without any expression of the Authority's own views".
There are several reasons why this could cause a good deal of trouble. That requirement of "an objective and impartial manner" is not embodied in the BBC Charter. It is in the ITA Charter and causes a good deal of difficulty because it leaves people endlessly open to prosecution if it is infringed. In other words, this Bill will become law, and if that requirement is made law, then it makes anybody infringing it, or seeming to infringe it, liable to legal action. That is a difficulty we have to concern ourselves with. Even though we would be passionately attached to the idea behind the Minister's concern for objectivity and impartiality it could raise difficulties of a very considerable kind. Senator Horgan's point about minority groups is very powerful. Somebody once remarked about television that if you really look for impartiality if somebody comes on the air and says that the world is flat, you have to immediately send somebody in who is equally convinced that the world is round, in order to balance the programme. That is a rather melodramatic representation of the crux which can arise.
There is very grave danger that the minority interests could ultimately be annihilated by such a consideration, which I do not think is necessary. I was looking recently at some of the issues that have arisen on television. It could happen that there would be an extremely eloquent man on one side of the debate and a rather fumbling and inadequate man on the other. Could it not be argued that that programme was not impartial? They could have two men with equal capacity, eloquence, decisiveness and knowledge. Legally speaking, you could even make a case along those lines. Recently an ex-Minister of the Opposition was given a half an hour on the "Late Late Show" to air his views about the entire spectrum of Irish affairs. He expressed them well, with charm and in a most civilised and exemplary way. Does it meet the requirements of impartiality if one gives such a man half an hour of peak viewing time on a popular programme to expound his sometimes controversial views?
The Minister for Education had two hours.
That underlines my point. I am not making a party political point. I am merely saying that within our recent memory we saw this phenomenon. How did that phenomenon tie in with the notion of current affairs and comment being presented in an objective and impartial way? That would lay a burden upon programmers which would make their difficulties so acute that ultimately it would lead to paralysis.
I am going to stress in every stage of this Bill that while there are many excellent things in it, nowhere to be found in its specifications is a challenge to broadcasters to produce great television. It is too cautionary. It is too negative. It is constantly telling them what they may not do. It is a restraining Bill. It does not have a creative charge which would make for a great television service. It is good in some ways, but in many ways it will augment the sense of frustration and paralysis which exists within the station at the moment. The saddling of our broadcasters with that clause could make for paralysis of an early "Joycean" malignancy. I beg the Minister to remove the words "in an objective and impartial manner" not because I am against objectivity and impartiality, but because that provision will create more problems than it will dispel.
I disagree completely and fundamentally with Senator Martin on this. The point which is of basic and absolutely paramount importance here is not the broadcasters, not RTE, but the viewing public. They are paying either through tax or through their television licences for this service. They are entitled to get a service which will be impartial, properly balanced, and will not be offensive to any section, be it a majority or a minority.
It is totally negative thinking.
No matter how you describe it, it must satisfy the viewers. They are the people to be considered. If we give a carte blanche to either the RTE Authority or individual broadcasters, we will get into a situation quite clearly where it becomes a service which encourages the axe grinder rather than the person who is prepared to present a programme in a dispassionate and objective way for the consideration or entertainment of viewers.
The fundamental point here is that the people to be satisfied are the viewers, the people who are paying the piper and who are entitled to call the tune. I shudder to think of any set-up in a national broadcasting service where this House would abdicate its responsibility entirely and hand over a service of such tremendous impact and importance to any authority, no matter who selected it, who in turn are entitled to delegate to individual broadcasters the right to do what they wish on the air with the people's money.
I should like to speak on my amendment No. 10, but before I do so, and I hope it will not upset the Leader of the House too much, I should like to say that on the whole I agree with what he has just said. I think that paragraphs (a), (b) and (c) of this section on the whole, in so far as they apply to RTE, are necessary and we accept that.
My amendment deals with one specific point, paragraph (c), seeking to delete the word "written" from the first part of that paragraph. Most of us would agree that where you have a service of such tremendous potential and actual influence as radio and television you, must have provisions such as this, and though we disagree with the detailed way in which it is set out, in principle one can accept that there ought to be a commission as laid out in section 4 to deal with complaints of breaches of impartiality and so on. Because radio and television have supreme importance in the lives of people and have a great influence by their very nature, there is need for a provision such as this. Written matter is another thing. The term "written" is presumably intended to cover particularly the RTE Guide but also any other magazines, books, papers or printed material that might at any time be put out by the RTE Authority. However one may disagree with newspapers, periodicals and so forth in this country, such as The Irish Times, The Irish Press, The Irish Independent and with the Minister's friends in Hibernia, many of these publications from time to time certainly could be accused of unfairness, of lack of impartiality. Nonetheless, being a democratic country we accept the right of newspapers and periodicals, within reason, provided they do not obviously break the uttermost bounds of public morals, to print what they wish. They are not subject to any kind of censorship of a political nature.
It seems inconsistent and contrary to the principles that we would all accept, that in this otherwise desirable paragraph we should have this provision on written material included. I do not know if there is any specific reason for this or whether it got in by some kind of chance. It does not seem to me that there is any real justification for saying that the RTE Guide or any other publication the Authority might put out should be subject to this kind of censorship under section 4 subject to being under the aegis of the Broadcasting Complaints Commission. Indeed, the very title “Broadcasting Complaints Commission” makes it rather odd to feel that this commission should be dealing with printed matter under this paragraph.
I suggest to the Minister that he should consider very seriously the possibility of taking out the word "written". In doing so he would also do away with a slight and unimportant error in the wording of this paragraph when he speaks of "any matter, whether written, aural or visual...", "which pursuant to section 16 of this Act — the Principal Act of 1960 — is published, distributed, sold or exchanged..." It is all very well having section 16 of the Principal Act saying "aural or visual matters" can be sold or exchanged, but in the corresponding subsection, written material can only be published, distributed or sold. There is no way in which it can be exchanged under that Act and I cannot imagine why anyone would want to exchange printed material. In quoting section 16 of the Principal Act in this way, he is unwittingly incorporating in this legislation an error in suggesting that under section 16 of the Act written material can be exchanged which, in fact, it cannot.
However, that is only a matter of detail. A more important point is that we should not introduce into this legislation a situation where alone of all the periodicals, newspapers and printed materials of all kinds published in Ireland this single exception existed simply because it happened to be published by RTE, that it be subjected to censorship of material, Ministerial instructions, to being considered by the Broadcasting Complaints Commission and so on. I suggest that the Minister would be wise to delete the word "written" from this paragraph.
I should like to add my voice to those of Senators Horgan and Martin who I think made a very reasonable point concerning the difficulty of translating what might be a very good professional norm into a legal norm. They spoke of the difficulty of defining impartiality. I feel that this is too great a difficulty to be solved at the present time for a number of reasons. We know very little about the impact of communications technology. Certainly we have available to us an insufficient body of evidence to tell us how, in fact, communications technology influences opinion and attitudes. Given that situation, it might be more useful to have the maximum possible freedom, and for that reason I am dubious about the usefulness of retaining "impartial" as a legal norm. It is vague. It may very well have the real effect — as adverted to by Senator Martin — of stultifying creativity and of creating an atmosphere perhaps of excessive caution leading ultimately to a lack of development in communications technology. I appreciate the difficulty the Minister is facing. In order to be consistent, I offer this viewpoint as I, unlike other Senators, am less sure as to the basis of consensus in society.
Senator Martin may have unwittingly introduced into this section something I had attempted to stamp on fairly severely in my own contribution on the Second Stage in discussing the concept of impartiality. I mentioned in it, following an empirical analysis of some length, that we have really defined impartiality in terms of a partiality which we accept as being impartial. I do not think we should stray too far from what actually happens in broadcasting as distinct from what we should like to conceptualise.
The other point is that there can be confusion between impartiality and balance. This seems to me to be a mistake Senator Martin was making. I do not see anything wrong in terms of impartiality in putting on a "flat earther" on television, giving him the whole of "The Late Late Show", providing that the way in which he is treated is in itself to the ordinary man in the street seen to be impartial and objective. That is to say that he is not put on in such a fashion, for example, where information relevant to his viewpoint, to other people's analysis of it, is knowingly withheld by the presenter or distorted or exaggerated although he is not interviewed on a current affairs programme in a consistently hostile fashion — he is not presented in a damaging light. One does not have to rely solely on what is said in terms of television. I could think, for example, of a director using very unflattering and unfavourable camera angles simply to achieve a distortion of personality. Anybody involved in the media, particularly for advertising, knows the importance of visual presentation as well as verbal presentation.
I think there is a need to re-emphasise for broadcasters in general that impartiality does not equate with balance in a programme. In any event, the balance can be achieved over a whole series of programmes. I would classify "The Late Late Show" as being a series of programmes in which balance can be achieved not only over a given series of programmes but over a number of series because the gentleman in charge of that programme has brought politicians before the public in a way in which they do not normally appear. I think he has chosen pretty equitably between the various political viewpoints in this country and presented them in a fair and objective fashion.
I agree with the observations of the Leader of the House that the phrase which Senator Martin seeks to delete could be needed from the viewpoint of a fall-back position. None of us is so naïve as to believe that access to the media itself does not bring with it the temptation to engage in what we consciously engage in as a profession — the presentation of one's own viewpoint. It is very well to say that the Authority shall not present their viewpoint, but how does one distinguish between the Authority and one who works for the Authority — between a programme maker, a presenter, a journalist and the Authority?
The Authority can say they have not issued as the RTE Authority a statement or an attitude on a particular angle in any matter of controversy. Of course that does not prevent the medium for which the Authority is ultimately responsible being used by programme makers or broadcasters if they want to put forward viewpoints of a personal nature on a given social, political or economic problem. I do not think that that is done, but we would all admit that the temptation is there. For that reason it is best to have that provision down as a marker. One cannot legislate for creativity or for goodness or any of the desirable virtues. If that were the case the proceedings of this House would be very much more attractive to all of us: the results of our deliberations would obviously be much more manifest.
Before I come to the specific amendments there are one or two general points which have been made on which I should like to speak. There has been objection to the inclusion in the Bill of references to impartiality and objectivity. I understand the point of view in question. Objectivity and impartiality are probably philosophically unattainable by human beings. You cannot quite get that.
I agree with the Minister.
Yes, and the Senator demonstrated it by his presence. I think that on balance it is desirable that a public corporation, supported by all the people, should have the obligation enjoined on them to seek to move in that direction. If you failed in that the Authority should then have the obligation to examine their conscience in relation to such proposed falling off. It is a means of subjecting the broadcasting Authority to a continuous reference, which this Bill seeks to institutionalise, to the Complaints Commission in relation to that and other aspects.
Although I sympathise with those Senators who have made this point I think it important to retain these concepts as part of the Bill. It is, of course, a question of retention and not essentially an inclusion of new matter.
Senator Martin made the point that there is nothing inspiring about this Bill and that there was no challenge to produce great television. I think Senator Halligan really answered that. I would add that I do not see how legislation can be made into inspiration. The inspiration has to come from somewhere else rather than from the legislation. It has to come from the creativity of broadcasters themselves. It has to come from the wise choice of the Authority in picking broadcasters who have creativity. Legislation is essentially concerned with restriction, not always with the imposing of restriction. Sometimes it is imposing restriction, sometimes it is removing restriction, sometimes it is relaxing and sometimes it is tightening up. Legislative and creative processes are two separate departments. This is the way I see it. In our debate the concept of that challenge should be referred to. I think Senator Martin performed a service in that respect.
As we are now dealing with a group of amendments all of which deal with section 3 of the Bill, it might be appropriate for me to say a few words about that section. Sometimes when we are discussing amendments we may tend to forget the section as a whole, what its intent is or what it replaces. Section 3 replaces section 18 (1) of the 1960 Broadcasting Act which reads as follows:
It shall be the duty of the Authority to secure that, when it broadcasts any information, news or feature which relates to matters of public controversy or is the subject of current public debate, the information, news or feature is presented objectively and impartially and without any expression of the Authority's own views.
Paragraphs (a) and (b) of the new section broadly restate the provisions of section 18 (1) of the 1960 Act. Subsection (1) (c) requires the Authority to apply the same standards as regards objectivity and impartiality to any magazine, book, printed matter or recorded aural or visual material they publish or distribute under section 16 of the 1960 Broadcasting Act. I shall come back to that in relation to the amendment.
The final sentence in subsection (1) gives statutory backing to the existing practice in RTE in regard to interpretation of the provisions regarding objectivity and impartiality. It is not always possible to cover all significant views within a single programme, and RTE regard these provisions as being complied with if all such views are covered in two or more related programmes broadcast over a reasonable period. This seems to be a sensible interpretation and it has been incorporated in the Bill for the sake of clarity.
Subsection (1) (a), which prohibits the authority from broadcasting, publishing, distributing, selling or exchanging anything which may reasonably be regarded as being likely to promote or incite to crime or to lead to disorder, overrides the provision with regard to objectivity and impartiality. Subsection (1) (b) relieves the RTE Authority of editorial responsibility in these areas in relation to programmes rebroadcast by the authority by direction of the Minister. Subsection (1) (c) is self-explanatory. It covers the whole section in relation to forthcoming matters.
One Senator made the point — I think it was Senator Martin but it may have been Senator Horgan — that the BBC do not have obligation of objectivity and impartiality imposed on them. It is true they do not have it imposed on them by statute, but they sometimes have their own way of doing things. The BBC Handbook for 1975 states on page 283:
The Secretary of State in a memorandum takes note of certain assurances then given by the then Chairman of the BBC, the late Lord Normanbrook, in a letter dated 19th June, 1964, and since re-affirmed. In that letter the BBC's Chairman recognised the BBC's duty to treat controversial subjects with due impartiality and to ensure that as far as possible programmes should not offend against good taste or decency, or be likely to encourage crime and disorder or be offensive to public feeling.
These are all, strictly speaking, obligations which the BBC have imposed on themselves, but their formal communication by the BBC's Chairman to the Minister and the latter's formal acknowledgement of them, having dealt with them with something of the nature of a prescription, that is how they do things there. Of course, those restrictions go further than what we have here. Let me come to the amendments. Senator Horgan's amendments, Nos. 4 and 7, which I understand he is not insisting on though he is formally moving them——
I may change my mind about those.
I am rather surprised at that coming from Senator Horgan in the light of his remarks on the Second Reading and what I understand to be his general outlook. The amendments would widen the statutory obligations on the authority regarding objectivity and impartiality and could cause serious problems in programme production, for example, light entertainment programmes, that is, substituting natter for news. Natter would cover, say, the "Frank Hall Show". If Frank Hall were in "Ballymagash" or wherever, if he were not behaving with objectivity and impartiality which, of course, he never does, then he could be proceeded against in some way.
So I would consider the amendments as being unduly restrictive on the authority and therefore, I could not agree with them. Possibly that is not what the Senator may have intended but I am quite satisfied it would have that effect. I have already said something about amendments Nos. 5 and 8, Senator Martin's amendments. The arguments put forward in favour of them do not seem to justify removal of the statutory requirement on RTE to report and rebroadcast news in an objective and impartial manner. Of course, that is also affected by the fact, one might argue — I would not agree — that these should not have been inserted in the first place. They are in the existing Act and if we take them out now one could possibly imagine seeing the joy at Montrose: "We do not have to be impartial and objective any more". I am sure there would not be any such scenes of joy. Senators will see that once that requirement is there, to remove it would be liable to a quite serious misunderstanding.
The objectivity and impartiality requirement is distinct from the requirement that the Authority should not express their own views in news broadcasts. The provision in the Bill is essentially the same as that contained in section 18 of the 1960 Act, and I am not aware that this has caused any problems for broadcasters. I am sorry, therefore, that I cannot agree with these amendments.
Amendment No. 6 is, of course, the Government amendment, and it follows discussions with the RTE Authority. I have had a number of discussions with the chairman of the Authority regarding these matters and there have also been discussions between officials of my Department and officials of the Authority. It was the Authority's feeling that the wording which we have now replaced was unduly restrictive, very much in the same sense which I thought Senator Horgan's amendment was unduly restrictive, that is to say, it went beyond current affairs. This brings the requirements in question into focus on current affairs.
Although it is unlikely that the Authority would ever wish to publish or distribute any written, aural or visual material which was not presented in an objective and impartial manner would be anomalous to have a situation where the restrictions in the case of published matter were more stringent than in the case of broadcast — I would think less stringent. This amendment is designed to restrict the objectivity and impartiality requirement to the same area as that applicable under paragraph (a), that is to say, to news, current affairs and to matters which are of public controversy or are a subject of current public debate.
Amendment No. 9 in the names of Senators Horgan and Martin raises similar issues. It is logical that the Authority should be required to observe the same standards as regards objectivity and impartiality in any matter they publish as are applicable in the case of broadcasts. However, on reconsideration, I agreed that the provision as it stood in the Bill was too wide and I decided to introduce amendment No. 6 to restrict the requirement as regards objectivity and impartiality in published material to publications involving news and current affairs matters. I regret, however, that I cannot agree with amendment No. 9. Senator Horgan made the point that the constraints of objectivity and impartiality might be interpreted in such a way as to prevent minorities from having their viewpoints heard. I would certainly hope not, and I do not think that the authority would construe this in that sense. In the past, minorities have had a fairly good hearing. I would, of course, exclude from that minorities which are addicted to pursuing their minority objectives by force and violence. I take it the Senators would also wish that done.
As regards amendment No. 10 on written material, Senator Yeats has said that newspapers have the right to say what they like within the limits of general laws but publications produced by RTE are on a different footing to newspapers in the sense that they are produced by a corporation created by statute and bound by statutory restriction, a corporation financed out of public licence fees which are, of course, paid primarily for broadcasting. In their ancillary activities of publishing, it is legitimate and right that they should have the same restrictions on them as they have in their main operation — that of broadcasting. Therefore, I cannot accept that amendment.
I am grateful to the Minister for his explanation of the reasons why he is not accepting the amendments. Let me make one or two points consequent on what he said. The aim that I attempted to bring into operation in my amendment No. 4 relates to a certain difficulty I had in distinguishing between news and current affairs. As the Minister suggested, it was not my intention to make the section more restrictive or hampering than it already is. There is no difference of any significance that I can detect between news and current affairs as broadcast or as published. There is a difference of treatment. There is rarely, if ever, a difference of subject matter. There is no difference of any significance that I can detect between news and current affairs as broadcast or, indeed, as published. There is a difference of treatment. There is rarely, if ever, a difference of subject matter. Current affairs are usually individual items of news treated at greater depth than is possible in a news bulletin.
I am not altogether sure as to what the distinction between news and current affairs relates, apart from that fact that I presume it is located in the original Act. I am not aware, for example, whether it relates to a distinction which is already made within the internal structure of RTE. It is true to say that the news in RTE is, by and large, under a single division, whether it is radio or television, and is handled in a reasonably integrated way. On the other hand, I suspect that there are many programmes on RTE, both sound and television, which could be described as current affairs programmes, or which deal with current affairs from time to time, which may not come under current affairs in the case of television and, as far as I know, there may not even be a current affairs section in radio at all.
I do not know whether the "Late Late Show" comes under current affairs. In the particular structure of television authority, it probably does not. There may be many such programmes which come under the heading of light entertainment in the television field, or general features in the radio field, which are effectively current affairs. I am unsure of the reason for the distinction or, indeed, if the distinction matters greatly. Perhaps the whole matter might be met by incorporating in (b) of the Ministerial amendment the words "news or" so that it reads: "the broadcast treatment of news or current affairs..." and let the rest of the section stand.
With regard to (c) of the ministerial amendment, what puzzles me is perhaps a certain ambiguity about the word "published". I now see on reading the Ministerial amendment closely that the word "published" in (c) is meant, presumably, to differentiate it from the word "broadcast" in (a). Yet, speaking from my imperfect and rather rusty knowledge of the law, broadcast in certain circumstances is publication. No doubt Senator Alexis FitzGerald will correct me if I am wrong.
I am unaware in a sense, what paragraph (c) relates to other than to two things: the actual sale of programmes or parts of programmes or the actual distribution of printed material such as the RTE Guide. If I am right in assuming that this is what it relates to, I would ask the Minister how he can ensure — this is the basic question my amendment was intended to bring out — that material which has been sold by the Authority is subsequently presented in an objective and impartial manner in circumstances in which the Authority have lost any control over the presentation of material.
I realise that the question raised by Senator Horgan is one which the Minister will need a little time to consider. I should like to thank the Minister for having answered the points I raised in my amendments so scrupulously and so persuasively. That is not to say that he has persuaded me, but his answering was persuasive. I have enough objectivity to see that in comparison with others.
A question still arises in my mind and it is that if section 6 is carried, that will involve two competing broadcasting services in Ireland, RTE and BBC 1. On BBC 1 there would be enormous resources but apart from everything else there would not be, as the Minister again scrupulously admits, a statutory imposition of impartiality. I must compliment him on the speed with which he got out the 1975 BBC Handbook and quoted the genial and, it seems to me, very civilised arrangement they have over there. The difference between that arrangement and the arrangement enshrined in our Bill would be that the one in this Bill would have legal force. Therefore, it would leave the station open to legal action, which is not the case with BBC. That was the distinction I was pursuing.
That relates in a way to the question of creativity. Of course, you cannot legislate creativity. I agree with Senator Halligan and the Minister on that. But what you can do is give as much room as possible for creativity to blossom. It seems to me that, in the present circumstances, BBC are unhampered by this legal albatross of impartiality and objectivity, whereas round the neck of RTE, which is struggling hard enough to survive even as it is, and in competition with this English mammoth, would be this impartiality. You would see the BBC with an extraordinarily free charter to deal, for instance, with the whole area of Northern Ireland, which they do in a free way than we do in the South. You would see a competition arising specifically in the whole area of current affairs in which the BBC would have an extraordinarily and, it seems to me, a very unfair advantage, as well as which they could never be brought to book as RTE could for a breach of impartiality or objectivity. In fact, we would have no control of any kind over them. Therefore, I should like to ask the Minister whether he foresees any difficulty within the perimeters I have sketched just now — the fact that two kinds of legal systems would be applying to two stations competing for the attention of citizens in this country.
I should like to return to the subject of my amendment, No. 10. The Minister said that the difference between the RTE Guide and any other printed material RTE might issue and other periodicals is that, in the case of RTE, it is a State concern which is issuing them and, therefore, they need to be controlled in this way. I would put it to the Minister that there is a wide variety of State concerns that issue literature of various kind. For example, Bord Fáilte have that well-known article and well produced periodical, “Ireland of the Welcomes”. Aer Lingus, amongst other things issue “Cara” which we all read from time to time in our endless plane journeys. CIE have at least one weekly periodical. The Department of Education control “An Gúm” which issues a wide variety of literature in Irish. These are all State concerns. In one way or another they issue printed materials, reports, periodicals, and so on. Not one of them is to be censored or controlled or otherwise dealt with in this way. We cannot just relate this matter to section 3. We have to consider that, because of its existence in this form in section 3, it becomes liable to the activities of the Broadcasting Complaints Commission.
It is over 50 years since the original Radio Éireann were set up. I do not know how long they have been issuing printed material. I suppose it must have been for the greater part of that time or all that time. About half a century has passed by and I imagine I am right in saying that there has never been any complaint with regard to impartiality, and so on. There has never been any suggestion that anything written in either the RTE Guide or anything else RTE or their predecessors may have published required to be——
They have been under a statutory obligation at least since the 1960 Act.
I do not think so. This is new. If it had been there only since 1960 I would still be inclined to object to it. So far as I know it is new. I do not think it is necessary.
They had to depend on the permission of the Minister under the old Act.
It is one of these curious things one finds in this Bill. With the one hand the Minister increases the power given to these people. In a later section he says that they can publish in future without his permission. On the other hand, he clamps down on them, so what is taken in with one hand is more than returned with the other. They needed his permission to publish before; they no longer need it now. Whereas before they did not have any of these injunctions laid upon them when they published printed material, they now have. I would put it to the Minister that it is not in the least necessary and that nothing has happened in the past 50 years which would suggest that it is necessary. It is contrary to prevailing practice, not merely in the Press and periodicals as a whole, but more particularly in the other semi-State concerns and in the Department of Education in so far as it relates to "An Gúm".
I would also repeat the point I made to the Minister only in more detail this time. Owing to the existence of the word "Britain" in paragraph (c), the provisions of section 16 in the Principal Act are laid out incorrectly. Subsection (2), paragraph (j) of section 16 of the Principal Act states that the Authority are given power to publish, distribute or sell written material but not to exchange. It is inaccurate to suggest that section 16 of the Principal Act gives them power to exchange written material. It is a small point but since we are legislating we ought to do it right. It is simply an inaccurate statement of section 16 of the Principal Act. More important is the fact that we are creating a precedent here quite contrary to the existing situation in all the other semi-State companies and in "An Gúm". Nothing has ever happened to suggest it is necessary.
Senator Horgan raises the point: how can I ensure that materials sold by the authority will conform with the requirements?
The duty is laid on the authority.
That which they produce, whether it is sold, or so on, shall conform to these requirements. If the people to whom they sold it should cut it in such a way that it ceases to be objective and impartial, they have no control over that after they have sold it.
Senator Martin makes the point that legislation should give as much room for creativity as possible. I agree with that, subject to the requirements of the general good which impose a certain need for restrictions in regard to which I went into tedious detail perhaps in my opening statement.
The next point is whether I fear difficulties arising from competition between the RTE Authority, which is legally restricted in certain ways, and the BBC which is restricted in other ways. It is a more complicated, if you like, a more gentlemanly way of saying: "We will do this and we are telling you that we are doing that and thereby in a way you are accepting an obligation to do it." It is a different way of doing things. Whether one is preferable or the other, might be open to discussion, but our way tends to be the way we do things, and their way tends to be the way they do things. I suppose most people would like to keep it that way.
In practice, Senators and other people often speak as if this competition was not there already. Of course it is there already for about half the country. What we are proposing to do here simply balances up, to some extent, though not fully, the position between what is now the multi-channel area and what is now the single-channel area. The competition which exists and the competition which is likely to be extended are between entities of a different shape. It is much less a question of what are the legal restrictions that govern them than of the structure of society out of which they came. Styles, manners and so on will always be different. Indeed, one of the reasons why people in the single-channel area want this kind of choice is that they want the difference. They do not want to be getting much the same thing through two channels. That is the way they see it, and this is a major matter in relation to the Bill which will come up under section 6, on which, as Senators have told us, we will have a full discussion. On this matter, the short answer is that I do not foresee any particular difficulties and I do not think any particular difficulties have shown themselves on the question of the legal requirements.
There is the matter which is not so much a matter of legal requirements and obligations as of the way in which people construe these obligations. For example, the treatment by the two organisations of appearances by people who belong to illegal organisations here has differed. Of course it differed much more while those organisations were not illegal there than it is likely to do in the future. But there is that difference. It has been pointed out and it certainly exists. I do not think the strictly legal framework affects the matter much. The framework which they have in fact voluntarily accepted appears to be more restrictive than our wording would be. They tend to interpret it in a less restrictive way than our authority would. The differences are essentially of convictions and how large things bulk in people's eyes. It would be fair to say that people concerned with broadcasting in Britain were not much concerned about, say, the IRA before the bombings in Birmingham. After that there was a change. We are all affected by the actual context in which we live. I think that is what will affect the kind of competition we will have.
With regard to the examples cited by Senator Yeats of other State corporations which publish various things, I do not think they are precisely analogous to publications of RTE for the reason that there are no basic restraints or restrictions laid down for these other organisations in relation to their other activities of the character of those laid down for RTE in relation to their main activity which is that of broadcasting. I understand the Senator accepts the need for those restraints in respect of broadcasting. The Broadcasting Authority certainly have not given me to understand that they object to the same requirements which apply in respect of broadcasting also applying to written publications, which seems to me normal and logical.
The Senator also argued that I am taking with one hand and giving with the other in that I lay down requirements about publication while removing the requirement of ministerial permission. If the Senator looks again at the Bill as a whole, he will see that this is fully in line with the general attitude and philosophy behind the Bill, which is to reduce the Minister's power of more or less arbitrary intervention and to replace that by known ascertainable published legislation. I think that the public on the whole will accept that as a desirable direction in which to move.
Senator Yeats referred to section 16 of the Principal Act. I will consider the Senator's points before Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 2, lines 23 and 24, to delete "in an objective and impartial manner and".
Amendment put and declared lost.
Government amendment No. 6:
In page 2, lines 26 to 34, to substitute the following for paragraphs (b) and (c):
"(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of the Authority's own views,
(c) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed, sold or exchanged by the authority is presented by it in an objective and impartial manner."
Amendment put and declared carried.
Amendments Nos. 7 to 10, inclusive, not moved.
An Leas-Chathaoirleach
It is proposed to take amendments Nos. 11, 12 and 13 together.
I move amendment No. 11:
In page 2, line 35, to delete "In applying" and substitute "Should it prove impracticable in a single programme to apply".
These three amendments in different ways are trying to get to the same point. The Minister has put down an amendment, amendment No. 13, somewhat on the same point. I do not think it goes far enough. Briefly what we are seeking to achieve in the amendment in the name of Senator Killilea is that we should emphasise that in broadcasts relating to current affairs, or matters of public controversy or the subject of current public debate, fairness, objectivity and impartiality are required. We emphasise the fact that such impartiality should be incorporated as far as is practicable in a single programme.
I do not have to tell the Minister, who is fairly expert on the whole question of media communication, that this is a contentious matter. If a point of view in such a matter is presented in a particular broadcast and if the other point of view or the rebutting point of view is not included in the same broadcast, or if that is not practicable as soon as possible after such a broadcast, then the first point of view is the one that tends to lodge in the mind of the receiver. The first story gets out. The first point of view gets across. If it is a point of view that requires correction, amendment or rebuttal, if that is not incorporated in the very same programme, then a totally wrong view of the subject may be taken by the public. It is a well-known fact that the first news story in a newspaper if not rebutted or amended, if the first broadcast by radio or television is not amended or rebutted on the spot, it is these initial impacts—made either through newspapers or particularly through television with its powerful visual content—that tend to lodge in the public mind.
Speaking frankly I do not understand why, since the Minister became Minister for Posts and Telegraphs, the confrontation political programmes which used to be a feature of RTE appear to have been dropped. I disagree with what was said here earlier in regard to having a member of any political party or, indeed, anyone with a contentious point of view to put on a programme on his or her own, without so far as is practicable the alternative point of view also being put by some other person on the same programme. As far as practical that should be the objective.
Impartiality in matters of public controversy and current affairs is best achieved by having the varying points of view presented at the same time. If one point of view is projected in one programme, and a period of time is allowed to elapse, then that point of view becomes the established point of view even if there is a very credible alternative story and even if the first broadcast is totally fallacious. In that context I move this amendment in the name of Senator Killilea.
The Minister seeks to do that in another way in his own amendment. He proposes to delete line 37 and substitute "the broadcasts are transmitted within a reasonable period". That strengthens the emphasis on the immediacy of the alternative point of view being put. I would suggest that the immediacy should be emphasised to a greater degree by putting in what I suggest, that is, that as far as practicable different points of view should be incorporated in a single programme. I deprecate the departure that has been made in the past two to three years from confrontation political programmes. When politicians or people engage in any form of public controversy, or have a public point of view to make, the fairest and most equitable and balanced way in which that can be presented is for the different points of view to be put face to face by the people concerned. Then let the public judge accordingly, as jurors, as it were, having seen the open and fair confrontation.
Senator Horgan tries to meet the point by deleting lines 35, 36 and 37 altogether. Looking at the three amendments dealing with this point, the Minister's, Senator Killilea's and Senator Horgan's, on consideration of the matter Senator Horgan's approach is probably the best one of the three. It really is superfluous to have the three lines there at all. I want to get this point of view over, however one amends the section to meet it. To ensure impartiality in regard to current affairs broadcasts, it is not enough to suggest that there should be an interval between the broadcasts and that two or more related broadcasts may be considered as a whole even when there is an interval between them.
The trouble is that impartiality may be eroded substantially if a point of view is presented first and another point of view is presented second. The point of view that is presented first is the one that tends to lodge in the mind of the individual looking at the programme. The other point of view put forward after an interval tends to be lost. In my view that is a breach of balance and impartiality.
I should like to say a word first of all about the distinction between impartiality within programmes and impartiality as between a connected series of programmes and, in particular, to refer to Senator Lenihan's plea for more confrontation on television. This is a valid plea and something which the punters in whichever area they live are always interested in seeing.
But there is another aspect to it. It is something I drew up in my Second Reading speech which I think is relevant as well, that is, that if you are going to insist very much on balance within individual programmes, as opposed to balance between a series of programmes, you are opening up the kind of situation in which persons involved in a confrontation situation which the media wishes to report or discuss may effectively ban any reasonable discussion of these issues on the media by refusing to take part. In other words, by ensuring that only one point of view can possibly be represented, they are effectively compelling the Authority—by virtue of the statutory obligations made upon it—not to transmit a programme.
In the nature of things, and in the nature of politics, it is very obvious that, in the majority of cases, it will be the Government of the day which is more likely to operate this kind of mechanism than the Opposition of the day. One's point of view about the advisability and desirability of confrontation politics on television will vary rather sharply depending on whether one is in Government or in Opposition. The Kennedy-Nixon debates in the United States taught many politicians in this area a lesson they are never likely to forget.
In regard to the amendments we are discussing at present, these lines that my amendment seeks to delete were actually necessary in relation to the section, as originally drafted, but are not necessary in relation to the section, as amended by the last ministerial amendment. In the section, as originally drafted, there was a reference to "broadcasts". When there is a reference to "broadcasts,"—that is an individual slice of time—it is natural that one should make it clear that one can consider more than one broadcast together. However, the section as amended reads "the broadcast treatment." To my mind these words "the broadcast treatment" are sufficiently wide to include not only one but more than one, perhaps even more than two, broadcasts provided they can be reasonably assumed to relate to each other. I am all in favour of simplicity. I am also all in favour of the thinking, behind these three lines, but the more we try to give these thoughts statutory expression the more we risk having to qualify them to the point where we are creating far more problems for ourselves than we are solving.
Might I put a point of view to the Minister on this? I think the Minister has made, in amendment No. 13, a reasonable effort to meet the points of view that were expressed on the Second Stage. But I have no hesitation in saying this—and I hope this will be the spirit in which the Authority would operate the matter: it would be infinitely preferable that the Authority should seek to balance each programme rather than rely on the authority which it would have under this Bill to relate programmes and balance the first programme by means of a second related one later on.
My preference — and I make no apology to anyone for saying this — would be that the Authority should seek to balance, so far as they can reasonably do so, each individual programme without having to rely on a counter-balancing programme to come along later. If that is the spirit in which the Authority would interpret this section, particularly having regard to the Minister's amendment No. 13, it would go a very long way to meet the point of view which I thought was put very correctly by Senator Lenihan on the Second Reading discussion of this Bill. I do not know to what extent the matter has been discussed by the Minister or his officials with the Chairman of the RTE Authority or his officials in the meantime. I would like to hear the Minister's views on it.
Senator Horgan's approach to this is the correct one. Once the duty is imposed on the Authority to be objective and impartial, to a great extent after that they should be allowed to do that in their own way. Consequently I would not be inclined to tie them down to a particular programme or a particular two programmes. Once the duty is on them to be impartial they should interpret that in their own way. Of course, if they do not interpret it in a reasonable way, then they will probably be in trouble with the complaints commission or something like that. Senator Horgan is perfectly right in saying that, with the amendment which has been introduced by the Minister and which has been accepted, this changes the picture considerably; that the Authority are now only asked—the wording is "the broadcast treatment of current affairs" which is much wider and, consequently, would include two broadcasts balancing one another if that was necessary.
Generally speaking, the Authority should be given some latitude in how they interpret their duty in this regard. I would think, in all the circumstances and in particular having regard to the Minister's amendment which has been accepted, Senator Horgan's attitude to the matter is the correct one and that the lines should be simply deleted.
I am prepared to agree to Senator Killilea's amendment just moved by Senator Lenihan. I thank the Senators for the amendment which I think improves the Bill. That, in itself, applies to a considerable number of the points made in the discussion on the Bill. Indeed, I do not know whether I should have said this first. I am not quite sure what is usage in these matters and, if I did not follow the right usage, I am sorry.
Perhaps it was as well that Senators did have an opportunity of putting on the record the reasons why they thought it desirable with which I agree. Senator Lenihan is mistaken on one point which he made in the course of his remarks, in which at least — I took it as an implication — he said that since I became Minister for Posts and Telegraphs confrontation programmes were no longer as available as they used to be in RTE. I should make it clear and put it on the record of the House that I, as Minister for Posts and Telegraphs, in no way intervened in this matter. The practice of different people in relation to such programmes varies and the willingness of people to take part in them, their view of their utility, varies. Different Ministers, amongst others, have different approaches to this question. I am quite prepared to engage in confrontation programmes. I have engaged in such programmes with the former Fianna Fáil spokesman in my area. I would be prepared to confront, or be confronted by his successor, if he desires that perhaps when this Bill is finished in the Seanad. I also sought confrontation with another of the Senator's colleagues as he will not give me this.
There is a material point in relation to this because Senators have raised the point that there can be a kind of unstated veto power, that is to say, that if one lot refuse to participate in a discussion, then RTE would be debarred from discussing that at all, if they can only have the other lot because of the objectivity and impartiality rule. Let me quote from the RTE Report 1974, page 27, on Current Affairs, section 8:
Where certain parties or interests involved in public issues have been invited to take part in a programme but one or some of them refuse, RTE does not regard itself as being thereby precluded from going ahead with the programme. The attitude is that cancellation of a programme because any particular party or interest refuses participation would be equivalent to granting this party or interest a veto over the particular subject. Such a veto would be seen as inconsistent with RTE's duty to deal with important issues. RTE reserve its right to use its own discretion in fulfilling its obligations in such a situation.
Can the Minister approve that formulation?
I am glad to put on the record here that I do approve of it and I recognise RTE's right to use its own discretion in this matter. I hope that will satisfy that particular objection. My acceptance of Senator Killilea's amendment and the Government amendment probably provide the main answer to this part of the debate.
I am sorry not to feel able to accept Senator Horgan's amendment but again my fear — as with another amendment of his — is that, if accepted, it might operate in a direction he does not want it to move; it might be more restrictive. The provision which I have, which amendment No. 12 would delete, gives statutory backing to existing broadcasting practice in this matter. This is considered necessary in the light of the establishment of a statutory complaints commission. Under the provision, as long as it lasts, if the commission were to say: "You should not have done that; that particular broadcast was not in accordance with objectivity and impartiality" then the Authority could no longer say if this was deleted: "Oh, but this was balanced by this". Therefore, the restrictions on them would become tighter. It is for that reason I want to give them reasonable elbow room within these criteria.
As regards Government amendment No. 13, the purpose of the original clause was to highlight the fact that every interval between related broadcasts should be reasonable if they were to be considered as a whole for the purpose of assessing objectivity and impartiality. While this proposition would probably be acceptable to everybody, there is the risk that a statutory provision of this kind might come to be interpreted in a mechanistic or legalistic way. For example, if the complaints commission decided that in the case of a particular series of broadcasts an interval of, say, more than one week between broadcasts was not reasonable, there would be a danger of this decision being applied in the case of all related broadcasts, which would put programme planners in an impossible position. The wording proposed in the amendment is rather looser than that in the Bill in order to guard against a too mechanistic interpretation. As far as I can see, Senators generally seemed disposed to accept the amendment.
I thank the Minister for his acceptance.
Amendment agreed to.
I move amendment No. 12:
In page 2, to delete lines 35, 36 and 37.
Question "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Government amendment No. 13:
In page 2, to delete line 37 and substitute "the broadcasts are transmitted within a reasonable period".
Amendment agreed to.
An Leas-Chathaoirleach
It is proposed to discuss amendments Nos. 14 to 18 and 80 to 83 together.
Amendment No. 14 not moved.
Government amendment No. 15:
In page 3 to delete "or to lead to disorder" from lines 4 and 5 and substitute "or as tending to undermine the authority of the State.".
Many Senators raised objections to the term "disorder". As I indicated at the end of my speech on the Second Stage, I attached considerable weight to these objections and looked for alternative wording and sought legal advice on the matter. I hope that the present amendment, deleting "or to lead to disorder" and inserting "or as tending to undermine the authority of the State" will find acceptance.
This is something we have all bent our minds to in the interval between the Second Stage debate and now. I feel I should draw the attention of the House to a very substantial difference between certain aspects of the debate on Second Stage and the Government amendment before us at present. These changes are no doubt due to the advice the Minister received in the interim. To my mind they make a fairly substantial change and one which is unnecessary.
At the conclusion of his Second Stage reply the Minister said, at column 1381:
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"...
Senator Lenihan's amendment, and indeed my amendment, write in this phrase "the security of the State" in slightly different terminology. I have examined it closely and, while I naturally prefer my own terminology, I would not go so far as to object to Senator Lenihan's if it secured a more widespread degree of acceptance. Whereas, we use the phrase "security of the State", the Government amendment reads "or as tending to undermine the authority of the State". There is a substantial difference between "the authority of the State" and "the security of the State". Also there is a difference, depending on whether or not one includes the words tending to".
To my mind, a great many things may be described as tending to undermine the authority of the State which should not, and need not, find their way into this legislation in this way. The security of the State is the key matter here and that to which my amendment and indeed that of Senator Lenihan are addressed. It would be very interesting to hear from the Minister the exact reasons why he abandoned Senator Halligan's concept of the security of the State in favour of the very much more general, looser and, I think therefore, more objectionable concept of the authority of the State. Indeed it is not that the concept, in itself, is objectionable but its insertion in legislation, in this way, opens doors that we should not have to open.
The Minister obviously appreciates the need to depart from the original wording of the Bill in which, following "crime", the Authority was also prohibited from publishing anything which may reasonably be regarded as being likely to lead to disorder. Obviously that, as it stood, went too far. The Minister's own amendment is an acknowledgement of that fact—that exclusion of matters leading to disorder would exclude practically any legitimate right of protest which any member, members or body of people in the community might legitimately wish to make and be reported as making such protest. Therefore, we have gone a fair distance of the way in departing from the concept in having a ministerial amendment deleting that and instead including matters tending to undermine the authority of the State. I still think, with Senator Horgan, it does not go far enough.
Senator Horgan thought it went too far.
No, it does not go far enough in the direction of security. It does not go far enough in departing from the question of legitimate reporting of what is news in the way of protest or matters of that kind that may lead to disorder, or may indeed tend to undermine the authority of the State. A fisherman's protest or a housewife's protest may tend to undermine the authority of the State. I do not see anything wrong with that. It is the security of the State that I think is the basic matter with which we should be concerned here. Basically I take it what the Minister is trying to get at in this subsection is not just crime as such but basic activities engaged in by bodies such as the IRA in its various guises or the UVF in its various guises and so on. These illegal activities, as envisaged under the Offences Against the State Act, strike basically at the root of our society in its security, not its authority. The authority of the State can be challenged in various legitimate ways. There is a very real distinction between authority and security in this aspect.
Security is what is basic to the community as a whole for its own protection. The State must ensure, through legislation such as the Offences Against the State Act, through the incorporation here in addition to "crime" of some formula which will prohibit the Authority from broadcasting matters that would affect the security of the State. It is a far better, stronger and more accurate description than what the Minister is trying to get rather than the authority of the State.
Otherwise, my wording is the same as the Minister's. It says "tending to undermine the authority of State" and I suggest "might tend to endanger the security of the State." It is just this difference between authority and security. It may be purist semantics, but I think that security is a better and more definitive way of achieving what the Minister is trying to get at in this section.
I find myself in some difficulty considering this because I do not find myself in agreement fully with Senator Horgan, Senator Lenihan or indeed with the Minister. I spoke on this point on the Second Reading discussion in support of the phrase which the Minister had used in the Bill—"or to lead to disorder". On reflection, I feel that a number of the points made in criticism of that were valid on the basis that there are degrees of disorder. There is the disorder Senator Lenihan has in mind when he talks about endangering the security of the State. There is also the disorder the Minister obviously has in mind when he refers to undermining the authority of the State. What troubles me about this is not that I disagree with the phrase the Minister is now using but I wonder is the Minister, in so far as this legislation is concerned, going quite far enough within the context of the constitutional requirements? If the Minister assures me that he is, then I am happy enough to accept the wording he now proposes.
It seems to me this is a matter which requires some consideration. I feel sure it probably has received earnest consideration from the Minister because this seems to me to be one of the specific areas where the Constitution has had something to say regarding the responsibility of the Government in relation to broadcasting and the media generally. In Article 40 of the Constitution, which deals with rights guaranteed by the Constitution, one of the rights which is the subject of a positive guarantee under the Constitution, subject to particular modification, is the right of the citizens to express freely their convictions and opinions. Article 46 (1)—I always get confused in these subparagraphs—of the Constitution goes on to say:
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, and the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
There are three separate and distinct matters which under the Constitution the State is required to bear in mind in this kind of legislation. The State is required to endeavour to ensure that organs such as the radio, and nowadays television, shall not be used to undermine firstly public order, secondly, public morality or thirdly, the authority of the State.
There is absolutely no doubt that the Minister's amendment caters very fully for the third of those matters, the authority of the State, because that is specifically spelled out in his amendment. The question which must present itself is whether or not the other words "public order" or "public morality" are sufficiently covered. I am putting this in the form of a query to the Minister. His attitude is that, under other Articles of the Constitution the requirements regarding public order and public morality are positive constitutional obligations on all citizens including the RTE Authority? Under that interpretation, the Minister would be entitled to say: "Very well, Article 4 lays an obligation on the State, and I, as Minister for Posts and Telegraphs, am the individual required to shoulder the constitutional responsibility. But the Constitution already imposes positive obligations on citizens with regard to public order and public morality. Therefore under this legislation I am left to deal with the third, which is the question of the authority of the State, and I am doing that".
On that interpretation it would seem that safeguarding the authority of the State implicity defends the situation dealing with disorder which would either endanger the security of the State or could be so flagrant as to come within the category of challenging or defying the authority of the State in a disorderly way. Nobody wants to see a situation where the national broadcasting service will be entitled, as a matter of right, to broadcast material which would cause disorder of any description. At the same time—and this was made very clear by Second Reading contributions—there is a very obvious desire among Senators to see that the restrictions imposed will not be so great as to inhibit unnecessarily the national broadcasting service in the discharge of its ordinary functions and duties under this Bill, and the other Act, which form part of the broadcasting code.
This seems to be a question of getting a reasonable balance and, at the same time, complying with the constitutional requirements. That is why I am in some difficulty about this. If the Minister is satisfied, having considered the relevant Article in the Constitution and other constitutional references and obligations regarding public order and morality, that what he is doing here is an adequate discharge of the State's obligation under Article 40, then I am satisfied.
On reflection I agree that much of the criticism made against the wording in the Bill as introduced was justified when one regards the situation of an Authority honestly seeking to discharge—without giving offence or wishing to cause, forment or foster disorder of any sort—its functions and finding itself unduly inhibited. The Minister's amendment will not inhibit the Authority from discharging its functions in the other way. My other theory still remains.
The result of the Minister's amendment is that we are now dealing with three objections which should be prohibited. One is ordinary crime—any crime can be regarded as ordinary—secondly, crime which specifically tends to endanger the security of the State, and thirdly, any matter tending to undermine the authority of the State. It is quite clear from the way in which this amendment would fit into the section that this need not necessarily be crime. The Authority is prohibited from including in any of its broadcasts anything which may reasonably be regarded as being likely to promote or incite to crime or as tending to undermine the authority of the State. Here we have a third concept which is a rather dangerous one, because we are talking about a matter which is not specifically or need not be a crime but will tend to undermine the authority of the State. That is going too far.
Any political broadcast, anybody severely criticising a Minister or the Government could be regarded as doing something which was tending to undermine the authority of the State. Someone may say that the Government and the way the country was being run was hopeless and the structure should be abolished. This is tending to undermine the authority of the State. This is going too far. It should be confined to crimes which tend not so much to undermine the authority of the State, but tend to endanger the security of the State. Consequently, I should prefer the amendments which specifically mention the security of the State, which is what was originally intended by the speakers both on the Second Stage and here today—the security of the State, and not necessarily some kind of a criticism of the authority of the State, and not necessarily involving a crime.
As the position stands now, on the one hand anything likely to promote or incite to crime is prohibited. Many films shown on television involving violence in a very sustained and crude way, are without question likely to promote or incite to crime. If this Bill is intended to prohibit the Authority from having such films in the future, I would not object. It would be a very good thing. Most of us are concerned that nothing should be shown or put on radio which would tend to undermine the security of the State. That is really what is essential and what I would agree with.
The Minister's amendment concerns merely putting on any matter which would tend to undermine the authority of the State. That this goes too far. Perhaps the Minister did not intend it to go as far as I suggested, but a very conscientious Authority looking at that wording might feel they could not allow any enthusiastic opponent of the Government or of the authority of the State to go too far because it would be tending to undermine that authority. The prohibition should merely be on crimes which tend to endanger the security of the State.
This is an important subsection. There are four different approaches to it. The first is the approach to be discovered in amendments No. 14 and 16 which are variants on that theme, which would be that the injunction for the Authority should simply end with the word "crime" in 1 (a) and the prohibition should be limited to prohibition on matter which might lead to crime.
The second approach is that of Senator Lenihan and Senator Horgan. They suggest that there should be, in addition to the obligation not to present matter which would incite to, or cause, or lead to crime, also a prohibition which, even if it were not leading to crime, in one case would endanger and in another case threaten the security of the State.
The third position is that of the Minister which suggests that he recognises that a prohibition merely against "leading to crime" is not sufficient. He recognises that the original language "lead to disorder" might be inadequate to express the concern that should be found in the language of this Bill. He suggests instead of "endangering the security of the State", the use of the words "undermining the authority of the State." The fourth position is that of Senator O'Higgins who, with those who think that one should go further ahead with the prohibition of matters which lead to crime, suggests the inclusion of something else. He said it should not merely be the question of the authority of the State, which he accepts, I understand. He does not think it goes far enough. It should also be a prohibition against public disorder and anything that would lead to an undermining of public order and morality.
Of all the positions, from a legal point of view, Senator O'Higgins starts strongest. The language of the Constitution, which governs our affairs, is, as I will paraphrase it, being simply this question of the guarantee of liberty, recognising the obligation to educate public opinion. Guaranteeing this liberty in the context of that says: "This expression shall not be used to underline public order or morality or the authority of the State". There is a division here between people who say the section should end with "crime". Then there is the technical debate, which could continue on Report Stage, whether it should be security, authority or whether authority should include public order and morality. At this point, I would go along with the Minister on this. While I recognise the strength of the legal position of Senator O'Higgins on this, I am not sure that in the atmosphere of this day if we introduce this type of language into legislation currently enacted, we will not be introducing what will be sensed to be too great a curb on the freedom of expression for the people engaged in television and broadcasting. In itself this is a very important factor. In this matter there is a very difficult decision to be made as to how you maintain the public order and maintain this as a State worth preserving — a good State, where people have full freedom to be creative and live their lives as they wish.
What the precise difference may be between security and authority I will not elaborate at this point. Authority goes further than security and it ought to, in the context of our national situation. There are obligations on the Authority. They must first recognise these obligations in order to judge them. These obligations ought to go a little further than merely abstaining from things directly or indirectly.
Assume, for example, one had to bring proccedings against the Authority. One would like to see those concerned to enforce an obligation on them, having a word strong enough to protect the authority of the State. At the moment, I would be in agreement with the Minister, moving towards Senator O'Higgins, and not because the gentlemen who made the propositions are sitting on the other side.
I should like to reiterate the view I put forward in my amendment that subsection (1) (a) should cease with the word "crime". That is:
The Authority is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to crime.
I have listened with great interest to Senator FitzGerald's very lucid analysis of the four points of view. The point of view I put forward is the one he has least affection for. I should like to defend it because there seems to be legal difficulties involved here. Maybe I am annoying the House by constantly referring to the situation that arises under section 6, which links all these matters. It is a pity we could not deal with it first.
Senator O'Higgins has brought in the element of order, morality and the authority of the State. Senator FitzGerald at the moment is wary of entering in that Serbonian bog where armies have sunk, on all kinds of issues, as distinct from broadcasts. They sank most ignominiously on the Contraception Bill. Seeing that in retrospect, would it not be reasonable to ask this kind of question? Section 6 says:
(1) The Minister may, after consultation with the Authority, direct the Authority to rebroadcast programmes broadcast from any source other than the Authority and specified in the direction.
That is all right.
(2) The Authority shall comply with a direction under this section.
If the Minister orders them to broadcast a programme emanating from the BBC, surely they are implicated in that decision? If that programme should contain something either contrary to morality, or to order, or to the authority of the State, to what extent are they answerable? This seems to be a crucial point and one I intend to raise again unless it can be answered fairly clearly. For instance, what would happen if the BBC pursued the course pursued recently by ITV on the Sunday morning programme where Peter Jay presides, while Mary Holland interviews Seán Mac Stiopháin or Daithí Ó Conaill or somebody else in that line? If the Minister orders RTE simultaneously to broadcast BBC 1, and if such a person put forward his views which are explicitly and eloquently aimed against the authority and security of the State, is the Broadcasting Authority which has obeyed the ministerial order open to prosecution for doing precisely what the Minister said? In other words, where does this end?
The Leader of the House raised the question of morality. This is a tricky question. The most dramatic moral issue on which all people are divided from the British at this moment is abortion. There are programmes, both current and dramatised, where abortion and contraception — matters which this country officially has shied off—are regarded as part of their way of life. I should like to refer to Senator Halligan's point and use it against him. He said earlier today, when talking about impartiality, that the very angle of a camera can slant a story. Supposing this requirement for impartiality is there, that RTE under the direction of the Minister rebroadcast a programme which is explicitly or implicitly propagating the idea, sponsoring the notion, or encouraging the idea that abortion was a good thing. Would the Authority be open to prosecution? When Senator O'Higgins opened the Constitution I was trying to find the place where he was referring to this trinity he mentioned — order, morality and the authority of the State.
Article 46 (1).
On flicking through it, I see that our Constitution is strict on the notion of blasphemy, for instance. Blasphemy is also contrary to our Constitution, but blasphemy, as strictly defined, is quite a common occurence in some of the more satirical programmes on BBC, ITV and so forth. If the Minister directs RTE to rebroadcast programmes from England, and these programmes may have matter which would undermine the authority of the State, according to any definition — in other words, an interview with Seán Mac Stiopháin or Daithí Ó Conaill in which they say they are going to destroy this Government, a statement which would not be allowed on the home television — are the Authority responsible? Is the Minister himself indictable for this? If, on the other hand, something directly contrary to morality or something overtly blasphemous according to our Constitution is shown, where does the responsibility lie?
A number of very interesting points have been raised here. Senator Horgan, at the outset, quoted quite rightly from the Second Stage debate, and my comment at that time on what Senator Halligan was suggesting which had reference to the security of the State. He pointed out that the language I am now using, "the authority of the State", is different and more far-reaching. That is an absolutely legitimate point. When I was commenting on what Senator Halligan was saying, I did not of course commit myself to any definite form of words, but just to move in that direction. I looked at it very carefully. I took appropriate legal advice and decided on the wording in this amendment.
One main reason why I use this language "the authority of the State" is that I thought that that wording, being taken from the relevant part of our Constitution — Article 46 (1) — was one which I hoped would commend itself to as large a number of Senators as possible. This is the Article which deals with the right of the citizens to express freely their convictions and opinions. It is also the section which explicitly speaks of organs of public opinion such as a radio, press, cinema and so on. In this section the Constitution chooses, presumably after mature deliberations, to use the language "the authority of the State" and not the language "the security of the State".
I am rather surprised that some Senators object in the context of broadcasting legislation to the wording "the authority of the State" and "the security of the State". It is "the authority of the State" which is preferred by the Constitution. I thought this would commend itself to Senators and to the public generelly. I am surprised at the exception which has been taken to this language in the Constitution. Not at the exceptions, but some of the exceptions made by Senators O'Higgins, which I shall come to in a moment, deserve attention of a different kind.
Senator Lenihan and Senator E. Ryan both expressed objection to the language about "undermining the authority of the State" which, as I say, is in the Constitution. They also thought I was going too far in the direction of giving power to restrict. I find that a surprising objection from Senators who all these years have had no objection to section 31, which gives the Minister power to ban absolutely anything without restriction of any kind whatever. That is what I am changing. Therefore I am moving in the direction in which those Senators apparently want me to move. But is it a question of just how far one should go. What is the right mixture for the time?
Senator Michael O'Higgins read out the exact wording or the Constitution and the relevant phrase. He drew attention to the fact that the Constitution speaks of not undermining not only the authority of the State but public order or morality. He wonders whethre those provisions should also these lines was moved in 1960 to the original Act by Senator O'Quigley. He moved:
It shall be the duty of the Authority to satisfy themselves that as far as possible the programmes broadcast by the Authority comly with the following requirements:
(a) that nothing is included in the programme which offends good taste or decency, or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling or which contains any offensive representation of or reference to any living person; and
(b) that the programmes maintain a proper balance in their subject matter and a high general standard of quality.
It is course a question of exactly how restrective or how elastic we want to get. I should emphasise that nothing we do in this legislation can possibly remove the constitutional restrictions which continue to exist on broadcasting, and obviously "radio" will be interpreted to include television in modern conditions which are imposed by Article 46 (1). The question may then be raised, why put in this in this Act as it is not redundant? It is not redundant because of course the Act gives the Minister and the Oireachtas power to approve or disapprove directions. There is an enforceable element in the Bill which is of a kind the Constitution is not equipped with — not that instantly effective power in this area. I would say it is not redundant.
The question then arises should we add "public order" as well as "undermining the authority of the State"? Should bwe enforce or give the power of implementation to the constitutional provision over the whole area of which it speaks. As far as public order is concerned I had in mind the objections which many Senators on both sides of the House formulated to the original wording which included "leads to disorder" and I formed the opinion that a reference to public order would meet with the same objections. I have had the objective all along in relation to this section not only to get the right wording as affecting RTE but to get the wording which I saw as being most effective and carrying with it the widest possible consensus we can obtain. This is very important indeed. It seemed to me that I would not get this consensus as wide as I wished it to be if I brought in "public order".
The same applies a fortioir to morality. Ideas of morality and discussion of moral problems are in a constant process of evolution. There have been discussions — the recent discussion on contraception is one which 20 years ago would have been very widely regarded as contrary to public morality — and yet this same Constitution is now interpreted by the courts as making it impossible to prohibit the importation of contraceptives, so wide a change has there been in the field of public morality.
In that situation I did not think it wise to confer on the Minister or impose on him the duties of a censor in that area. Accordingly, I used the language of the Constitution, but not all the language of the Constitution I made it "tending to undermine the authority of the State", and to my mind that is the wording which best suits the situation and which will find the widest measure of public approval and support, because the major sanction of that kind of legislation is the public feeling in support of it, not the fact that the Minister has a big stick with which he can hit the broadcasters but the fact that the broadcasters feel that this kind of requirement is regarded a swarranted by the Legislature and by public opinion in support of the legislation. That is a far more important sanction in this area that anything else.
I have commented on Senator Ryan's and Senator Lenihan's contributions. I should like to repeat to those Senators who think that this may go too far in its restriction that it replaces something which goes infinitely further, since anything could be probhibited under section 31 of the 1960 ACt, though there is a movement here. Senator Martin's points are, of course, exrtremely ineresting; the concept of whether the Authority could be prosecuted for rebroadcasting matter broadcast by the BBC which might run counter to the relevant Article of our Constitution. That is not a matter on which I or anyone else except the Supreme Coourt can give a final decision.
I would make one or two points, however. The BBC have accepted the obligation of being governed by language which I quoted earlier from the BBC Handbook, which in form at least is quite similar to the Constitution language. Another point, which is perhaps rather more material, is that RTE are already engaged in this kind of activity and have been for some years without arousing any legal or constitutioanl sanctions. That is to say, the body known as RTE Relays have been going around the town very happily putting up wires which bring television into homes throughout the relevant parts of our land along the east coast. If they do this they are bringing into every home not only the heresies, blasphemies and immoralities of BBC I but also those of ITV which were more specifically mentioned by the Senator. If to bring these pictures and sounds by microwave is unconstitutioanl or wrong, to do the same thing by means of little wires in the built-up areas in also wrong. If the Supreme Court should decide that by deliberate act to bring the BBC and so on to people who might not othewise have them is contrary to the Constitution, why then, the little wires will have to be pulled out all round the east coast, and this might cause some stir, perhaps even a demand for a constitutional amendment.
I do not think we need to look quite that far ahead. The basic fact of course is that mainly by means of cable, though not exclusively, BBC is alrady available to about half the popolation. In any reasonable approach to this legislation, that is one of the factors that would have to be taken into account. Section 6, which Senators have tended to concentrate on and to quote, and quite relevantly — the Senator's points were entirely relevant — does no more than try to even up the situation. Section (1B) sttaes:
The foregoing subsections of this section shall not apply to anything rebroadcast by the Authority pursuant to a direction given by the Minister under section 6 of the Broadcasting Authority (Amendment) Act 1975.
The Constitution does.
It does, but this presumably would get the Authority off any legal hooks there might be and we might get the Minister more firmly impaled on it. This would surely be likely to be interpreted in the context of what is actully going on. Let us say about half of our people are watching these programmes already anyway, and in many cases with teh active assistance of RTE to which nobody hitherto has objected.
With regard to the Minister's reference on a few occasions to section 31, I have an amendment down which would amend section 31 of the orginal Act suggesting that the Minister should retain the power which he has in the original Act but on the other hand making it necessary for him to have the order placed before the Houses of the Oireachtas so that the Oireachtas can ask him to explaian why it was necessary for him to make the order in question, and to justify it.
As I will be arguing later, I think that is the best way to approach what is very obviouslyy a difficult problem and one on which many people have different points of view. What should be remembered when the Minister tries to equate a ministerial order with the kind of situation we are delaing with here, when the kind of normal approach of the Authority to programmes is being considered, is that they are two different thing altogether. In my view, the power given to a Minister under section 31 is to deal in particular with two very special unusual situations, one, possibly, in the case where the Authorityy refuse to comply with what the Act says they should do. Secondly, a situation might arise where the provisions of the Act would not seem to apply to a particular situation and the Minister might feel that even though the Authority could argue that they were not prohibited from allowing this kind of programme, nevertheless in the national interest the minister should act and he would accordingly make an order. My point is that the kind of situations in which a Minister would act under section 31 are very unusual situations and should not be equated with what we are delaing with here — the normal prohibitions, the normal recommendations made to the Authority as to what should or should not be allowed to be broadcast.
As regard the argument that the wording which the Minister has included in his amendment is found in the Constitution and that it is accordingly a better one, I have no objection to using the wording found in the Constitution in appropriate cases, but I think it is a rather dangerous position to adopt because there are many Bills which come before us where it would be dangerous to always try to use the wording found in the Constitution and to try to fit into technical Bills, Bills dealing with crime and so on, the rather wide phrases and so on which are used in the Constitution. It is not necessarily an argument in favour of a particular wording, although I agree that if the wording in the Constitution is entirely appropriate and suitable, then by all means use it.
I have said I prefer talking about the "security of the State" rather than the "authority of the State", but I would not press that point too far — I would not mind very much changing from "security" to "authority". The principal point I was making is that the Minister's amendment talked about prohibiting anything which tended to undermine the authority of the State wheereas the amendment proposed by Senator Lenihan talked about anything which may reasonably be regarded as being likely to promote or incite to crime of such a nature as might tend to endanger the security of the State.
The important distinction is that as far as Senator Lenihan's amendment is concerned there would only be provision in relation to crime tending to endanger the security of the State. I would not object very much to a compromise where "or as", the first two words of the Minister's amendment, were left out and he talked about "anything which might reasonably be regarded as being likely to promote or incite to crime tending to undermine the authority of the State". What I think is going a bit too far is to say that anything, not necessarily a crime, which would tend to undermine the authority of the State would be prohibited. That is my principal point. I do not argue very much with putting in "authority" rather than "security" but I think we should confine it to crime.
Senator Ryan appeared to deprecate the use of constitutional phrases. I would agree that there would be areas of legislation where it would be no doubt inappropriate to bring in constitutional phrases which might not be in keeping with what was wanted, but a certain exception has to be made here in that our legislation need not parrot the Constitution at every point, and it does not do so. But it is of course required not to be incompatible with the Constitution and the particular part of the Constitution that deals with boardcasting refers to "undermining the authority of the State" and not "endangering the security of the State". Here one would need to show why we had to move away from the Constitution rather than why we should stick to that part of Constitution which applies to boardcasting, and that seemed to me the right thing to do. I would stand by that wording.
I am sorry that I cannot accept Senator Ryan's suggestion, as I understood it, about deleting the words "or as", very small little words. The change would entirely change the meaning, as the Senator appreciates, of what I propose. I cannot accept it.
The Minister has brushed aside the point made by Senator Ryan rather inadequately. He is right, of course, in saying that the words "or as" are small words but there is an important point involved in them. The Minister says he cannot accept this, but he has not really explained why. As I understand it, the whole point of section 31 of the orginal Act and all the arguement for putting this kind of injunction on RTE is that what one might describe as political crimes should not be allowed to be boardcast on the airwaves in Ireland, in other word, that illegal organisations of all kinds should not be allowed access to radio and television and neither should people who support their activities.
That is the kind of crime we have in mind, the kind of incitement we have in mind. We do not have ordinary crimes in mind, if one could use the term. We do not have in mind fishermen who would come on one of these discussion programmes and say it was intended to blockade the port of Dublin on the following Tuesday afternoon. However reprehensible this activity, it is not, I think, the kind of thing the Minister has in mind. It certainly is not the kind of thing one ought to have in mind. When it comes to the promotion of or the incitement to ordinary crimes, one ought to be able to leave it to the common sense of the television authority not to misuse the position in which they have been placed by the Government and by the public at large.
The real difficulty in this country arises from the fact that we have these people going around masquerading in various guises as illegal armies, as proscribed orgnisations, as organisations which refuse to recognise the State and which are aiming to undermine the security of the State, or the authority of the State, or whatever turn of phrase one feels like using. Clearly those are the people intended to be covered by sections such as this, not ordinary criminals who go around robbing banks, or murdering or doing whatever they feel like doing. We can leave them to the authorities.
The Minister's proposal, in its original form and also in its amended form, covers all kind of crime which, as I say, covers the fisherman who is going to blockade the port, the housewife who sits down in the middle of a road protesting at the volume of traffic going unduly fast past the local school. It could easily be held to cover such relatively innocent programmes as "Kojak" or "Hawaii Five-O". I suppose it could be alleged to cover such programmes as "Tom and Jerry". There is no limit to the type of programme which might be held to be covered by an injunction such as this that nothing that is likely to promote or incite crime is to be dealt with.
The good guys nearly always win.
Nearly aways — I am not so sure about Tom and Jerry. Good guys nearly always win. But does that mean that if the good guy does not win, if a more original type of crime story comes out where the criminal succeeds, that this is to be dragged up as being in breach of this Bill and brought up before the Boardcasting Complaints Commission? I do not think that is intended and it ought not to be intended. Clearly what we have in mind is something quite different. It is people parading around claiming the right to run private armies, claiming the right to refuse to recognise the State and to subvert the authority of the State that we are supposed to be covering. I do not know why the Minister says in his rather casual way that he wants to leave in these words in the amended form which become "or as". I do not know why the Minister proposes to leave them in in order to cover all kind of crime. One doubts the explanation we have had so far.
We have had an extensive debate on this. I do not think it is fair to the Minister to question him a few times on this thing and to say that he dismissed it too casually. Senator Ryan's reaction would be my own reaction to it. I thought at one stage when listening to Senator Yeats, but I found he clarified my thinking later, that he had moved Senator Martin into the position of the person making the proposition which would most stringently control the Authority because Senator Martin is content to delete the words "or lead to disorder" and leave the position that the Authority are to be prohibited from the promotion of anything which might reasonably be regarded as being likely to promote or incite to crime. That may not be the correct position.
That is it, exactly.
I may have inaccurately described his position. As I understand Senator Martin, and we have many hours in which he can explain it to me, he proposes to delete the words "or lead to disorder". I would then read the subsection as ending with the word "crime". Am I correct in understanding that that would be so?
I understood that on Second Stage we all had some — those who spoke on this and those who did not may have shared some of the feelings of those who spoke — nervousness about the additional words "or lead to disorder" but I did not think there was anyone who spoke on Second Stage who thought that the type of crime which should be prevented from "promoting or inciting to" was to be spelled out as only being that kind of crime which tended to undermine the authority of the State, which would be the form it would take if the words "or as" were deleted.
Is it seriously being suggested that the prohibition on the Authority is to be so expressed that it is only specific types of crime that they prohibited from inciting or promoting — the types of crime that tend to undermine the authority of the State or endanger the security of the State? Am I correct in understanding that that is the clear proposal of the Senators who use these words, but not the proposal of Senator Martin who recognises, as I do, that the Authority should be prohibited from promoting or inciting any type of crime and, in addition, whether it is crime or not— here I have two roads I can travel down — tending to undermine the authority of the State or imperil the security of the State. I am rather easy as to which way I go. I prefer "the authority" because it is somewhat more extensive and we are not in too cheerful a situation in this country and I would like it to be a little bit more extensive for that reason.
But the idea that we should put into this Bill a specification of the type of crime only which the Authority are prohibited from inciting seems to me to be incredible because thereby, by implication, we are perfectly free to list all the types of crime which some shrewd lawyer will tell them will not imperil the security of the State, like pickpocketing — they could give lessions on pickpocketing. I doubt if that would imperil the security of the State or undermine the authority of the State. It might be costly to the police force. There are all sorts of other amiable types of crime which do not undermine the authority of the State or do not imperil the security of the State but the Broadcasting Authority would be perfectly free to do that. Is that the proposal? Is this a serious proposition? I do not think it is. A better position for Senators to occupy would be to move swiftly behind Senator Martin's amendment. That would be a more justifiable one but not one that would be acceptable to me.
Senator FiztGerald misunderstands the kind of obligations that are laid on the RTE Authority. He seems to think that everthing they are expected to do or not to do has to be laid out in this Bill. Of course, that is not so. There is not a single word in this section or indeed in any other section in this Bill about, for example, morality. There is nothing at all here which says that the RTE Authority are not to distribute pornography. One assumes that their own common sense, intelligence and sense of integrity would prevent them doing so. There are a great many other things that one could think of that the Minister has not put in this Bill but which either by internal codes or else by using their common sense would not be done. Among these I would suggest the type of incitement to civil crimes of which I was speaking.
Senator FitzGerald said that nobody mentioned this matter on the Second Reading, and to keep the record I mention that I did, at column 320 of the Official Report for 16th April. I said, among other things:
Vague as the original section 21 was, it was clearly intended to deal with illegal armies by people who did not recognise the State and whose energies were directed against the State. I would be sorry to see the new section used for what must be described as civil crime or civil disorder.
I make that point and I think it is a good point. We can safely leave the RTE Authority to look after civil crime in the same way as they look after questions of morality and all types of other questions which are not dealt with in this Bill.
Senator Alexis FitzGerald mentioned Senator Martin's amendment. All I can say about that it that, to any mind, from the first time I saw it, it stuck me as the worst of all possibilities. It leaves the matter completely unlimited. Any kind of crime without any description is covered. I cannot see why the Minister feels obliged to bring in what one might describe as civil crime. I think I am correct in saying that, vague and all as it was, it was never intended to be covered by section 31. The various directions given under section 31 of the Principal Act did not cover civil crime. Perhaps the Minister would be able to enlighten me on that.
It seems to me that this is introducing something new. Whatever the effects and implications of it may be one does not know, but there is certainly a new prohibition placed on the RTE Authority, one which did not exist before. Until now, apart from their own internal codes and their own internal practices, there has been no obligation laid upon them in a statutory way to refrain from promoting or inciting to civil crime. We are now having one. It is a chamge and I do not think it is a desirable change.
Am I right in thinking — perhaps Senator FitzGerald when he next rises to his feet could confirm this — that incitement to crime is already a crime? Is there any particular reason why we should write into a Bill something which is already law?
I am in favour of the amendment proposed by Senator Lenihan because it will at least direct the Authority's attention to what is at present at any rate, the most pressing problem, and the one most likely to cause serious trouble in regard to a broadcast. I am not in favour of the section as it would stand as amended by the Minister, because we will end up with two things. We would end up with a prohibition on promotion of or incitement to crime and with a prohibition on anything tending to undermine the authority of the State. Both of these are a little bit too vague. I do not think that the Authority will pay much attention to them because they are a bit too general and vague.
I have no doubt whatever that "Kojak" and some of those programmes are likely to promote or incite to crime. I will be very surprised indeed and delighted if the Authority refuse to put them on in the future but I do not think they will. That is why I feel this twin approach which we are to have with the Minister's amendment will not to much about that kind of programme where you are dealing with ordinary crime. I do not think they will pay much attention to a provision on anything tending to undermine the anything of the State, because that also is a bit too vague.
This section is a rather pious one which will not be acted upon, whereas the section as amended by Senator Lenihan would pin-point a very serious problem, and would be so specific that I think the Authority would have to have regard to it and would have to act upon it.
I am sorry if any Senator should have the impression that I was dealing in a perfunctory manner with any suggestion made here. I did not fully understand that this suggestion was as seriously intended as it appears to be. Let me say why I object to it. First of all, it would substitute for two things in the existing amendment — incitement to crime and matters tending to undermine the authority of the State — one category, and make that category more restrictive than it was. It would carry out a sort of double erosion of what I had in mind. I wanted something that would meet objections made in the course of the debate but still leave the powers adequately wide, remembering all the time that we are substituting wording for an absolute blanket wording in the present Act. I want to get rid of that blanket wording and the arbitary powers which are latent in it, but I do not want to be unduly permissive as I conceive it.
This wording represents my approach which, of course, is not necessarily the approach of other people and of Senators. They were right to say so but they cannot expect me to accept off the cuff the kind of amendment which very drastically alters the whole thrust of a major section of the Bill. I thought I was making that clear.
There is another reason for rejecting the amendment. What we would be doing would be telling the RTE Authority not to engage in incitement to crime tending to undermine the authority of the State. If Senators will forgive me, I find a certain absurdity in that and the public would also find a certin absurdity in it. I do not want there to be any absurdity in this Bill. Although I take the point that has been made in defence of the wording, the ordinary reader sees it as he reads it. He wonders if it is all right for RTE to incite to varieties of crime provided they are not crimes which tend to undermine the authority of the State. I am sure that is not what Senators opposite want. I do not see why they should be carried to this somewhat ludicrous extreme by a peculiar tenderness in relation to allowing RTE, if they want to, to incite to what is called civil crime. I agree that you do not necessarily bring forward everything you do not want them to broadcast. A better wording than that will have to be found. I am not prepared to accpet it.
I read in the paper this morning as I drove up from Wexford, when I should have been here, that a certain Senator said in a debate here yesterday that he was opposed to "murdrs of a sectarian nature" and not apparently to other kinds of murders. I am afraid this amendment seems to me somewhat in that light.
Amendment put and agreed to.
Amendments Nos. 16 to 18, inclusive, not moved.
An Leas-Chathaoirleach
It is proposed to debate amendments Nos. 19, 21, 22, 23 and 24 together.
Government amendment No. 19:
19. In page, 3, between lines 5 and 6, to insert the following subsection before subsection (1B):
"(1B) The Authority shall not, in its programmes and in the means employed to make such programmes, unreasonably intrude on the privacy of an individiual."
It may not be technically possible but if it is technically possible I would like to take No. 19 separately because it raises a totally different point. The other amendments are in varying forms proposing either to delete the provision for interference with privacy or to change it. Amendment No. 19 has the effect of preventing this from applying to the BBC. It is a separate point.
An Leas-Chathaoirleach
They are consequential on amendment No. 19 so it would be difficult to take it separately.
The new subsection was drawn up in consultation with RTE and is designed to state with more precision the responsibilities of the Authority in relation to protection of the resonable privacy of the individual. It should, I hope, go some way towards meeting the objections by some Senators to the wording of subsection (1C) of the Bill. If this amendment is accepted by the House subsection (1B) will authomatically be renumbered as (1C). This would correct a possible flaw in the Bill by making it clear that the obligation on the Authority not to intrude unreasonably on the privacy of an individual would not apply to a programme rebroadcast by them under section 6 — the kind of problem referred to by Senator Martin.
It would be inappropriate for the authority to be held responsible or programme over which they have no editorial control and the transposition of the subsections will have the effect of excluding rebroadcast programmes from the prohibition on unreasonable intrusion on privacy.
As regards amendment No. 21, this subsection was also drawn up in consultation with RTE and has the same kind of purpose.
The Minister's amendment is certainly an improvement on the original subsection (IC). The reason I find myself opposed to this provision on privacy is that, at least in this case, it is something that has only now been introduced. It was not in the old Bill. I could apprciate the difficulty the Minister had with the whole question of impartiality in the sense that to take something out of the Bill that was there would be a genuine and very overt act that could be interpreted as holding him responsible for objecting to such things as impartiality and objectivity. This notion of the invasion of privacy is a new thing. I understand — and it should be said in the Minister's favour — on the grapevine that the Authority requested some clause such as this. I do not know why they requested it. The problem I have with it is the difficulty of defining an invasion of privacy. There are obvious invasions of privacy which are clear to everybody. I do not propose to labour this to a very great extent but the authority or themslvers of programmes could find that kind of twilight area between reasonable and unreasonable intrusion on the privacy of the individual.
I am thinking of such a matter as this. A local representative, a county councillor or samebody of that nature, owns land and is perfectly entitled to do so. Say, planning permission is granted at a certain meeting of the county council. Planning permission is in the eyes of somebody making a programme on this whole area of our local legislation is something that is open to question. The publi representative is coming out of the meeting. He is not in his own home and subdenly he finds somebody thrusting a camera and he is asked a direct question. He refuses to answer and walks away because he is not bound to answer. They may publish his refusal. In other words, they may dramatise his refusal on the screen that night. This is a kind of implicit condemnation of the man, but is it an intrusion into his privacy? It all happened in a public place. Had they a right to ask this question at all?
Take another situation which arose out of a programme I saw on tele vision some years ago. I am thinking of the very strict areas. I am not thinking of climbing in people's windows with cameras. I am not even thinking of "Candid Camera". I am not thinking of these very vulgar and disreputable programmes currently on sound radio where perfectly innocuous housewives are rung up by disc jockeys in the course of their affairs and, without realising it, every little stammer, every little foux pas they make, is being broadcast to the public. I am not even thinking of that. I do not even know if the Bill concerns that. I am thinking of matters where there is a genuine problem. I would be very interested in the lawyers' comments and, indeed, the Minister's own comments on this.
A programme was made some time ago about this notorious question of importing pigs from the North of Ireland. It is well known that you can make a lot of money if you can smuggle pige. It is also well known that there are certain farms that straddle the Border. It is also well known that there are certain piggeries which strddle that Border within the same farm. It is also pretty well known that there are farmers who buy pigs and out them in one end of the piggery and them they take crossed the Border but nobody can prove what happened inside that piggery and that the pige that went in at one end were the pigs that came out at the far end. There was an attempt to expose this on television.
That would be the privacy of the pigs.
Supposing you photograph the pigs going in one end and coming out the other with your camera, and there is no way of knowing that they are the same pigs, and supposing you go up to the man and ask him: "Are these the same pigs as went in the other side?" Supposing the man says to you: "Get stuffed!"— and the hand signal is not for the record — or words to that effect. Supposing you put these words on television is his privacy being invaded at this stage? I do not know. It is being done in a public place.
What I am suggesting is that the notion of privacy is an extremely difficult one and a very hard one to define. It is one that other foreign stations have had a great deal of difficulty in dealing with. My objection to it here — and I will not multiply the examples but there are many; these are problems that any man making television programmes runs into every day — is that this is one of the areas where the Bill and I have mentioned this to the Minister before, seems to lean a little too heavily towards the restriction of the ground for creativity for the individual maker of a programme. The Minister may reply — and he would be perfectly justified in replying — that the Authority requested this. The Authority are not the programme maker. I happen to know that within Telefís Éireann some of the most creative people who work there find this another added albatross hung around their neck, another sort of monitor on their creativity and on their freedom to go out and to act in the making of programmes. They have not been responsible for any gross or serious invasion of privacy in the past — not many, anyway, that I can think of. It seems to me that that notion of privacy should be better defined before it is incorporated in this Bill. As it was not there before I would question the wisdom of inserting it at this stage.
In the first instance I would sympathise with the housewife described by Senator Martin. If I were a housewife and was rung up even if it were by Gay Byrne. The lot of the housewife is not so marvellous that we can afford to distract her from such little solaces as she can find in her solitary confinement or semi-solitaty confinement at home.
In broad terms we must favour the concept of privacy in socity, not least because so manu of the things that are happening in society today go against privacy and tend to erode people's rights to privacy. The whole area of privacy is far too big a subject to be dealt with partially in legislation like this. The number of ways in which a person's privacy can be invaded aren legion and they do not refer only to the operations of the State broadcasting service.
For example, it may well be argued that people's privacy can be infringed by journalists working on ordinary newspapers. I have no doubt that this can and does occur. Perhaps we should be doing something about it. We should be doing something about it in the context of some overall legislation designed to establish a statutory right to privacy on a general basis with, if necessary, statutory remebies for persons whose privacy has been invaded instead of attempting to deal in a very inadequate and perhaps awkward way with a very small section of the problem.
One of the effects of the Bill, if we pass it as amended by the Minister, is that anybody who can prove damages for invasion of privacy has a remedy at law against the Authority, I presume, for this. In other words, he has a remedy not just in terms of access to the broadcasting complaints commission but in terms of damages at law. We are opening up a huge area here which should not be opened up simply by a tiny subsection in a Bill which is basically dealing with other matters. perhaps the Minister for Justice or some other Minister of the Government should be charged with the responsibility of bringing in draft legislation designed to ensure people's right to privacy on an overall basis. At the moment, for example, the Bill would create a statutory right to privacy and a statutory right to damages for invasion of privacy with regard to RTE, but not with regard to any other agency whether it be journalistic or otherwise. It is rather unfair, to put it mildly, that RTE should be lumbered with a statutory restriction of this kind which other persons, by virtue of not belonging to RTE, are free to ignore and may not be proceede against if they violate it.
On Second Stage the Minister said this section was to give statutory recognition to a problem. I repeat my argument now that the place for this is in a major piece of legislation. We do not pass Bills to give statutory recognition to a problem. We pass Bills to solve problems and to create situations in which problems will not arise. This section lays itself open to objection in this regard.
I would much prefer to see the obligation with regard to invasions of privacy transferred to the Broadcasting Authority, as my amendment does. My amendment puts a statutory duty upon the Broadcasting Authority to take certain steps with regard to sageguarding other people's rights to privacy, and that is where the statutory authority should lie at this stage in the proceedings. I am not totally against the idea of a statutory provision for privacy generally, provided it applies to as many categories of people as it can be reasonbly made to apply. Its present application is partial and, in a sense, inadequate.
We are living in a time when our right to privacy is being enormously eroded. The Minister presides over a Department with a statutory right to invade a person's privacy, perhaps above and beyond what is necessary. The Minister's Department have the right to tap people's phones and to open people's private mail without their knowledge. This may or may not be necessary in individual circumstances for the security of the State. We are always, naturally, assured that it is. We have to take it on trust. If we like the Minister, we will. it we do not, we will tend not to. I am pointing to the anomaly, almost, of a Minister bringing in a right to privacy in a situation in which he, perhaps alone of Government Ministers, has a right to invade another person's privacy in this extraordinary way.
I can remember an argument under the last Administration when it was alleged in the other House that the telephones of Members of the Oireachtas were being tapped. I can remember the then Minister for Justice, Deputy O'Malley, giving an assurance in the House that no authorisation had been given for the tapping of the telephones of Members of the Oireachtas. Those of us who are versed in semantics will realise that this is not the same thing as saying that no Member of the Oireachtas has his phone tapped. It means that no authorisation was issued for the phone tapping of any Member of the Oireachtas. In any case a telephone line is a different thing when it is inert and when there may or may not be a tap on it, from when it is actually connected to somebody else's telephone, in which case it does not matter because if there is a tap on his line, the effect of the tap on your line is basically the same.
In other words, there is no way in which the telephone and postal communications of a Member of the Oireachtas can be immune from this form of invasion of privacy. I mention this just to stress the need, if we are to discuss privacy, to talk about it in a global sense and not solely in this very limited sense where it affects only one particular group of people in a particular way.
In conclusion on this point, unless the telephone service improves, the whole section about the invasion of privacy will in one important respect become a complete dead letter in the very near future.
I want to make the point that you cannot compare RTE fairly with other statutory bodies. RTE are a national broadcasting authority. They have monopoly powers. They control what could be fairly described as the strongest, most potent and certainly the most influential of all forms of media. I agree with Senator Horgan and other speakers that it is difficult to define or quantify privacy. All of us would resent unfair and unreasonable intrusion into the private life of anybody. As the other speakers have pointed out intrusions into the private lives of persons has become quite a common affair in recent years, particularly in regard to newspapers. Possibly some day we will have to have a look at that.
I have a good deal of sympathy with the Minister. He is trying to be fair to the private individual who does not want to have his private rights interfered with. He deserves to be protected. I do not object to writing into legislation certain restraints that would make it actionable if the national broadcasting corporation should interfere with the privacy of an individual. In saying that I appreciate the difficulty of choosing the right form of words that would protect the privacy of an individual and, at the same time, give RTE a fair opportunity to portray to viewers or listeners current events in an objective and impartial manner. It is probably impossible to completely equate the two things but priority must be given to protecting, in so far as we can, the rights of the private individual. In his amendments the Minister has gone as far as he can to do this.
On the general question of the inclusion in the Bill of a prohibition on an unreasonable intrusion on the privacy of an individual, I am in favour of such a provision. To my mind, the inclusion of certain matters in the Bill was unjustified on the grounds that in the past 50 years no issues had arisen which could demand such a provision. This is clearly a case where, in recent years, there have been occurrences which make it necessary to include such a provision.
On the general issue of the inclusion in this section of a ban on unreasonable intrusion into the privacy of an individual, I am in favour of the Minister's proposal. The wording of the amendment is satisfactory.
Senator Martin seeks to delete altogether the prohibition on intrusion into privacy. He queried what particular circumstances could be regarded as an intrusion into privacy. I suppose it is impossible to lay down rules to cover every possible case and, ultimately, matters such as this would have to be decided by a series of decisions, possibly by the broadcasting complaints commission. To my mind it is an intrusion into privacy if anyone—other than obvious exceptions, such as practising politicians who are fair game—is interviewed or portrayed in any way on television against their wishes or without their consent. That seems to me to be a clear intrusion into privacy. If a television cameraman approaches you in the street and somebody asks you a question, it is all right if they say then: "Do you mind if we broadcast this? It is up to you." But if they broadcast it without your permission that, to my mind, is an intrusion into privacy.
(Interruptions.)
I am afraid there are many things that one could take an action at law about but unless one can prove some pecuniary damage, one will not get very far. I suspect it would be a very expensive kind of litigation. I do not think that would be much defence to the ordinary man in the street.
Therefore, I feel there is a need for this. Indeed, from something Senator Martin said, it would seem there is a need recognised by the RTE Authority themselves.
Supposing a criminal escaping from a bank with a swag was caught by a television cameraman and they put that on television, would the Senator regard that as an intrusion of his privacy?
It would be a contempt of court, if not worse, bearing in mind that the gentleman escaping out of the window of the bank with a swag is going to be tried in court, and how any jury could come to a decision in an unbiased condition and decide whether that man was guilty, I just cannot imagine.
Would the Senator regard it as an invasion of his privacy? That is a different matter. The sub judice——
I would regard it as a type of material which ought not to be broadcast. I am quite clear on that. Indeed, it is an invasion of his privacy because for all we know, he might be innocent. He might have been in the bank when it went on fire, so he leaped over the counter, took the money and rushed out because he was terrified at all that good money going up in flames. Until a man is convicted he is entitled to all his rights including that of not having his privacy invaded. Indeed, I would go further; I am not at all sure that, if such a person had been convicted of larceny or whatever and was then been dragged off to prison in handcuffs, it should be open to the television authorities to broadcast his shame to the entire country. Even there when he is being treated as guilty the man still has a right to privacy.
It is a difficult question.
It is a difficult question but that is not any reason for not taking issue with it. I do not think that different questions will be solved by putting down amendments to abolish any rules at all and say: "At it, boys." There are too many people, not just in our television station, but in all television stations who, in the interests of sensation, of getting a programme which will cause a stir, are willing to take short-cuts and invade people's privacy. So, on the general question of this Ministerial amendment, I am in favour of it. However, I am not in favour of the manner in which it is being put before us.
With regard to paragraph (1C) I raised on Second Reading, I do not mind telling the Minister I considered not raising it because it was clearly an error in the Bill; it was clearly an error putting it as paragraph (1C) where the BBC were covered as well as RTE. As I have already said to the Minister, sometimes even where one is against what is the general plan of what he is doing, one's sense of good order and a desire for accurate legislation come to one's rescue. Indeed, I did mention it on the Second Reading, which is why I think this substitution is being brought about.
The effect of this change is not merely to make a rather unimportant amendment to the wording of the original paragraph (1C) but, by inserting it in the place in which it is now being inserted, the BBC are being relieved from this obligation of not intruding into privacy being placed solely on RTE. I am not going to go into any detail on this because my amendment No. 20 will afford an opportunity of discussing this matter at greater lengths. I am opposing this amendment because it is placing on RTE a duty of non-interference into privacy which is not being placed on the BBC. RTE is being singled out in this way. I agree with the wording of the amendment but not with the insertion before paragraph (1B) which has the effect of limiting its effect to RTE.
As Senator Martin and others have said, this provision is one which has been recommended by the RTE Authority itself. That has to have some weight with the Minister, when those closest to this in terms of overall responsibility for broadcasting see a need. Most Senators appear to agree that the need exists.
Senator Martin started some very interesting hares in the form of hypothetical cases of what might or not be contrary to this, pigs and all sorts of things were there. Senator Martin is quite right to raise such questions, such hypotheses. But I think any Minister would be foolish to join in the chase when introducing legislation. The Senator referred earlier to that Serbonian bog where armies whole have sunk. For a Minister to start discussing hypothetical cases of what might or might not be done or not done under the Bill would be entering that bog. The Senator apoke of it as restricting creativity. To some extent, any limitation on broadcasters will be likely to be resented by them as doing that. I am sorry if it should, to any extent, have that effect. I would think that, as interpreted by the Authority in a reasonable way, it should not have that effect.
Senator Horgan referred to the fact that people have the power to go to law about this sort of thing already. Here I agree with Senator Yeats; the power to take something to law is often an illusory power, one may not have money to do so, for one thing; one may not have the inclination, for another; one may be uncertain of the result. Above all—and I think this should weigh with us—the kind of person who suffers most from an invasion of privacy is likely to be the very last person to go to law. A shy person, say, would suffer very much from a violation of his privacy and be very unwilling to incur what he would regard as the further violation of privacy of having to go through a court of law. On the whole, it is better to provide for this as an obligation on the Authority, an obligation which, after all, they themselves wish to assume. They would have to carry it out and it would be an area in which the complaints commission could be of assistance to them and to citizens who might feel that their privacy had been violated.
Senator Yeats is in favour of the basic provision himself but for reasons connected with his and his friends' general objection to section 6, he disapproves of what he calls relieving the BBC of the obligation. Of course, we have no power here to impose any obligation on the BBC. What we have is the power to decide what to do about the BBC being received here. Do we cut down on it, as far as we could, for example, by making cable television illegal? Do we do that, or do we continue to let it flow where it does flow, through cable, while preventing it from reaching other areas through microwave? Those are the things that we have the power to decide. We cannot say to the BBC "you must do this, that or the other". We make up our minds holus-bolus about do we carry it or do we not. Senators have a perfect right to say: "No, we do not; we are opposed to your doing that." If we are going to do what is proposed under section 6 it is well to clarify that that obligation cannot be imposed and that RTE cannot be punished for failing to impose something which cannot be imposed.
Is amendment No. 19 agreed?
No.
Might I make a small point? It is symbolic of the difficulty involved here. It seems to me, as a schoolmaster, unreasonably to intrude on the privacy of an individual. As an ordinary English teacher, that seems to me to be prolix or tautological to intrude: can one reasonably intrude? Would it not be better to change that to "unreasonably encroach", encroach being a neutral word? But to say "unreasonably intrude" implies it is possible to intrude reasonably on somebody and I do not think it is.
I am certainly prepared to consider the Senator's suggestion before the Report Stage.
Amendment put and agreed to.
Would this be a suitable time to move the tea adjournment?
Business suspended at 6.15 p.m. and resumed at 7.30 p.m.
Is it agreed to take amendments Nos. 20, 48, 64, and 70 together?
No. I suggest that amendments Nos. 20 and 48 raise different issues. I am quite happy to have amendments Nos. 64 and 70 tacked on to 48, for they are obviously consequential. Amendment No. 48 relates to Section 4. The problem when dealing with amendment No. 48 and with amendment No. 20 is that I would have to go into the whole question of section 4 and I do not think any time would be saved. It would be quicker to take amendments Nos. 20 and 48 separately. The Minister seems to be happier with that. I am happy to have amendments Nos. 48, 64 and 70 taken together.
Agreed to take amendment No. 20 alone.
I move amendment No. 20.
In page 3, lines 6 to 9, to delete subsection (1B).
The purpose of amendment No. 20 is to ensure that the various provisions of section 3, which have been discussed at some length, about impartiality, being fair to all interests concerned, impartial, not interfering with people's privacy and so on, should apply not merely to RTE but also to the BBC or UTV if they should be the selection for the second channel under section 6. The Minister said there is not much point in making this amendment because one cannot control the BBC. One answer to that is that one cannot control RTE—except very indirectly. Alleged breaches by the Authority can be considered by the broadcasting complaints commission.
All the broadcasting complaints commission can do is issue a statement or report giving their views on whether the complaint is justified. They ask, under section 4, the Authority for their views. If the Authority say "we are going to deal with you" that is the end of the matter. If this happened too often, the Minister could set the machinery in motion to have some members of the Authority dismissed by a resolution passed by both Houses of the Oireachtas. In the same way if there were too many complaints found by the Authority to be justified, he could take the necessary steps to issue another direction under section 6 to take away this concession of access from the BBC or UTV as the case may be. The circumstances seem parallel. A very strong argument can be made about the desirability of keeping an eye on them. I am assuming that the Minister, under section 6, manages to transcend all the difficulties, legal and otherwise, he is faced with. Assuming he succeeds in his efforts and BBC or UTV programmes are rebroadcast by our national television station, it would seem highly desirable, from the Minister's point of view as well as everybody else's, that there should be machinery under which the commission can operate.
Perhaps it might be as well to take all these amendments together, if the House and the Minister are prepared to agree, because I find myself already referring to section 4. It might be more convenient to do it in that way because there is a link. But the argument for this amendment to section 3 is based on the fact that once you have these provisions in section 3——
The Senator raised the question as to how the discussion is to go. The House agreed at the beginning of this debate to take amendment No. 20 alone. Senator Yeats has now suggested that we take amendments Nos. 20, 48, 64 and 70 together.
On second thoughts it would save time.
I would prefer the Senator's first thoughts.
I will try to avoid referring to section 4. The effect of this amendment to section 3 is that apart from there being an injunction laid upon the BBC to comply with all these rules, the broadcasting complaints commission come into the act. Merely telling RTE that they are or are not to do these various things is of very little importance. The primary point is that these things become cognizable by the broadcasting complaints commission. By making this amendment, we find that the BBC also would come under the aegis of the broadcasting complaints commission under section 4.
While I accept that there is no way of making the BBC broadcasting any different, the same applies to RTE, subject to the Minister's power to ask the Houses of the Oireachtas to dismiss them. In the other case the Minister has power, by direction, to get rid of the BBC. From his point of view, it would be highly desirable to have this means of keeping an eye on the BBC of seeing to what extent they broadcast news in a way that was not objective or impartial, was not fair to all interests concerned and which invaded the privacy of individuals. It would be very desirable that there be this kind of check. It would also be very desirable to have an impartial body, such as the broadcasting complaints commission, to consider these matters. As the Minister has phrased section 3 there is absolutely no control over what is broadcast from BBC. I am not particularly interested in the suggestion, which no doubt he will make and which he has already made, that they have already sent down cables and so on.
We are now proposing a new situation where BBC or UTV programmes will be distributed by our own public transmitters and paid for by the Irish taxpayer. It would be very desirable to ensure that the BBC are complying with the same rules we are laying down for RTE. It seems extraordinary that, with our national broadcasting concern, which is to have two channels theoretically under its control, the Irish part of this channel, run by Irish people with programmes in whole or in part made in Ireland, have to comply with all these rules, some of which are fairly stringent, while, on the other hand, the English, the non-Irish, the foreign section of the programme, whose hours of broadcasting would be longer than the Irish station, are to be without any kind of control. They can invade people's privacy. They can slant their news, and indeed one suspects they may. They can do everything in section 3 without any redress. One wonders why section 3 is in the Bill at all. Would it not be just as well to give everyone a free-for-all? If the BBC are allowed to carry on in this way, without any redress, advice or injunctions from the Minister, the Government, or anyone else, why should RTE in their own programmes have to face this? It would be more sensible to withdraw section 3 than to leave it with this paragraph (1B) which we are seeking to delete.
This is ground which has already been gone over in substance but which we have here in the shape of an amendment. It would be quite unreasonable to place a statutory obligation on the Authority in regard to objectivity and impartiality in respect of rebroadcast programmes over which they would have no editorial control. This is not to say that the rebroadcast programmes will necessarily be in breach of the requirements laid down in section 3. The BBC and ITA are subject to much the same restraints. Again, that ground has been gone over regarding objectivity and impartiality, promotion of and incitement to crime, as those contained in section 3.
The Senator seems to suggest that as the powers which a Minister has over RTE may not be totally enforceable. There was a comparison with the BBC which I did not follow. The Minister and the Government have powers over the material RTE broadcast, powers which we are now in the process of redefining. We have no powers over programmes the BBC broadcast, and which is at present received mainly by cable, licensed by the Government, by about half the population, and which will be extended to the other half. This amendment is another way of saying "we are against the section". If what is proposed under section 6 is to be done, this kind of amendment would make it impossible. In my opinion, this amendment is designed to make it impossible. It would be impossible, for example, to negotiate with the BBC to make their broadcasts subject not only to their own law but to our law in relation to rebroadcasting. This amendment is impracticable and I see no way of accepting it.
The Minister told us quite forcibly on Second Reading that it was quite untrue to suggest that the British channel to be broadcast by our Irish television station would be outside the control of the Irish people. He said we could end it any time we want. At that time I did not accept this as a very sound argument for having this system, nor did I consider that the measure of control was in any way adequate. It is on all fours, despite what the Minister says, with the controls the Minister has over RTE. He says he has control, but does he? It is like the atom bomb—all or nothing.
The only thing he can do in RTE is to sack the Authority. Of course he can talk to them and try to prevail upon them to have sense, or what he would consider to be sense on a particular occasion. But if they stick to their guns there is nothing he can do. When it comes to complaints against their programmes, in the interests of staff relations one can visualise a situation where the RTE. Authority will reject reports of a critical nature from the broadcasting complaints commission. This happened in the past and it will happen again. All the Minister can do is back them. All he can do against the BBC is to sack them. The two are very much on all fours.
The Minister may say, and may be rightly, that the effect of imposing impartiality and so on the BBC would be that they would never agree to be rebroadcast. Is that not merely another way of pointing out how ridiculous the whole concept is? We have solemly laid down in Irish legislation all these injunctions for impartiality on our own television station, and yet the programme in competition—Channel 2 from a foreign station—suffers from none of these problems. The Minister says the BBC have their own codes of impartiality. I have no doubt they have, but it is strictly an English impartiality. Does anyone who has ever looked at "BBC News" really suggest that, from an Irish point of view, they are impartial? Everybody knows their news is highly slanted, and one would expect it to be. I have no doubt that they would think our attitude to political events slanted in an Irish way. These things happen.
The prevailing attitudes on Irish affairs, which after all, are of some interest to us, on the BBC are slanted. Nobody could suggest that they are objective, impartial or fair to all interests. Judging by their past activities, they do not pay much attention to the desire of the Minister to avoid anything which would incite to disorder and so on. They have totally ignored the kind of restrictions which have been laid upon RTE with regard to the advertising of people who run private armies and so on. The BBC clearly do not comply with the rules laid down in section 3. Whatever about the delays that might be caused in the negotiations between the Minister and the BBC, one can only repeat that it seems grossly unfair and altogether extraordinary that rules of this kind should be laid on RTE in this section and yet deliberately and calculatedly excluded in the case of the BBC.
This amendment is a fantastic effort by Senator Yeats to improve this Bill. What would be the result of accepting this amendment? It would mean that, so far as BBC can be received in what has been described as the multi-channel areas, they could broadcast what they like under none of the restrictions about which Senator Yeats spoke. As soon as RTE broadcast one of those programmes to the present one-channel areas they would be committing an offence by rebroadcasting anything which did not comply with our standards of impartiality and objectivity. But in the multi-channel areas, which are not depending on RTE, no offence would be committed by RTE or by anyone else. This would make a farce of the Bill. It certainly would not improve it.
The Leader of the House is saying that because they catch the burglar who robs my house and not the one who robs the neighbouring house it is unfair to prosecute my fellow. After all, the other man got away. Two wrongs do not make a right in this instance. The fact that the BBC are heard by those who live in the eastern part of the country is a fact of geographical life which is not affected by this Bill.
Surely the logical way to deal with the Bill would be to make it illegal to receive them.
We have to assume that——
Make cable television illegal?
If the Minister brings in such a Bill we will consider it. We now have to consider the Bill. We are not considering hypothetical possibilities or accidents of geography. We are considering a situation where——
Cable television is not an accident of geography.
It is an accident of geography because the man who picks up the signal to send down the cable has to be sufficiently well placed geographically. The Minister in this Bill is providing for a situation where the RTE Authority have transmitters with various satellites throughout the country. Each of these transmitters can broadcast two television programmes. One will be an Irish programme governed under all kinds of restrictions, rules, regulations, prohibitions and so on. The other channel transmitted from each of these five main transmitters will come from the BBC and is governed by none of these restrictions. This seems to be irrational.
The Minister said on Second Reading that if the BBC were not satisfactory they could always be put out. I take it that this means the Minister and/or members of his Department will be keeping an eye on what goes out from BBC. They will be watching the programmes and taking notes as to how satisfactory the programmes are. I certainly hope they will be paying particular attention to the extent to which the BBC are impartial, objective and so on.
It seems reasonable that the broadcasting complaints commission, as an independent body, should keep an eye on this. It may be that the Minister would prefer to amend sections 3 and 4 so that there would not be a specific injunction on the BBC, on the ground that it cannot be enforced against a foreign television station. Would he, therefore, accept amendments to section 4 so that complaints could be made to the broadcasting complaints commission about BBC programmes? I suppose I should really raise this matter on section 4. It would mean rearranging section 4, which at the moment keeps referring back to section 3.
Since we are now on section 3, I insist that if, as the Leader of the House said, it was ridiculous to suggest that one could impose this obligation on the BBC, it is even more ridiculous and anti-national to suggest that we can lay this injunction on our own television station and say quite casually that our second programme which comes from abroad is not to suffer from any of these obligations— it need not be impartial, objective, or fair. They are given complete carte blanche. The only way out of this problem would be to eliminate section 3 altogether.
There are two categories of amendments tabled here. One category, which covers the great majority of the amendments from all sides, consists of amendments which are genuinely designed to improve the Bill and which are offered in the hope of adoption. The other categories covered amendments which are not intended for that purpose, but are intended to provide the Senators who put them down with a chance of having another go at section 6 to which they are opposed. Amendments of that character are then defended with very repetitive arguments such as we have just heard from Senator Yeats, who has gone over ground covered many times by himself and others.
I do not object to this. As far as I am concerned, the more Senators wish to commit themselves to opposing section 6 and to telling people in the single channel area that they are to have RTE 2 whether they like it or not, the better. If their colleagues in the Dáil coming from the single channel area also want to do that, let them. The more they do it at length, the better the issues will be understood. I have no objection.
I do not propose to take up as much time in dealing with amendments of this character as with amendments which are generally designed to improve the Bill. The arguments used here are essentially arguments we will hear again and again, especially in section 6, which is where I propose to deal with them in most detail. You either take the idea of rebroadcasting in toto or not at all. To suggest that you can vary it, edit it, put it before a complaints commission and generally process it is, in Senator Yeats' own words, another way of pointing out how ridiculous the whole thing is. If that is the object of the amendment we need not spend much time on it.
Senator Yeats is quite right when he recalled that I said, and I repeat now, that if we are not satisfied with how this works we can call the whole matter off. There is no abandonment of sovereignty or of ultimate control. But it has to be in toto—the lot or nothing. That is the fact of the matter. Senator Yeats made an ingenious comparison between the Minister's ultimate power to sack the Authority and his ultimate power to end the rebroadcasting of BBC. He sought to suggest that this gave the Minister an equivalent kind of control over the BBC to that which he has over the Authority. Of course, that is quite unsustainable.
The Authority, which exists in virtue of the statutes of the past year and by no other power, cares very much what view is taken of our activities. The ultimate sanction is that of dismissing the Authority. It is an ultimate sanction I would hope never to have to exercise. But it is there, and both the Authority and all RTE necessarily care very much about all their statutory obligations. That does not apply to the BBC. If we cease rebroadcasting BBC, we cease rebroadcasting. This does not give us some kind of leverage in relation to their work.
Whether it is un-national to do this is an aspect I would prefer to consider in dealing with section 6 itself. If this proposal is to be regarded as un-national and anti-national—words which some people are in the habit of using too freely—then those descriptions would have to be used to describe about half our people living in the single channel area who want this service.
It centres on the Fianna Fáil side, and if Deputies on the Fianna Fáil side wish to label the inhabitants of the single-channel area who want this service as un-national and anti-national let them go ahead and do that.
It is unfair of the Minister to make suggestions because after all those who are in the multi-channel area can get this because of its geographical situation. To make the argument that because it is in that area it must be given in all the other areas is illogical because we might as well make the same argument in my end of the country about railways, saying we should have them because they have them in the south of Ireland. Therefore, you cannot spread equally over the country equal facilities for everybody.
I have no hesitation in saying publicly that I firmly believe what the Minister is trying to do. He is anti-national. To hand over to any foreign station complete control to broadcast anything they like into the privacy of our homes all over Ireland is a disastrous approach. It is certainly anti-national in view of our circumstances as a developing country and so on. What we have been proposing is to take the best from other channels and rebroadcast it on our own channel. If there is sufficient money to go along on the grounds suggested by the Minister, he would be much better employed providing a better telephone service or various other services in his own Department rather than foisting this across where it is not needed.
Amendment put and declared lost.
Government amendment No. 21:
In page 3, lines 10 and 11, to delete subsection (1C).
Amendment agreed to.
Amendments Nos. 22 to 24, inclusive, not moved.
Section 3, as amended, agreed to.
SECTION 4.
Amendments Nos. 25, 35, 42, 44, 45, 46, 47 and 55 may be joined and discussed together.
I move amendment No. 25:
In page 3 lines 14 to 56, and in page 4, lines 1 to 26, to delete section 18A and substitute the following:
"18A.—(1) A position to be known as the Broadcasting Complaints Commissioner hereinafter referred to in this Act as the Commissioner) shall be established.
(2) The Commissioner shall be appointed by order of the Government.
(3) Every order made by the Government under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to its validity prior to the annullment.
(4) The Minister may out of moneys provided by the Oireachtas, with the consent of the Minister for Finance, in each financial year make a grant or grants to the Commissioner of such amount or amounts as the Minister considers necessary to enable the Commissioner to perform his functions.
(5) When appointing the Commissioner the Government shall fix his terms of office which shall not exceed five years and, subject to subsections (9) and (10) of this section, he shall hold his office on such terms and conditions (other than terms or conditions relating to remuneration or the payment of allowances) as are determined by the Government at the time of his appointment.
(6) The Commissioner may at any time resign his office by letter addressed to the Government and the resignation shall take effect as on and from the date of receipt of the letter by the Government.
(7) The Commissioner whose term of office expires by the effusion of time shall be eligible for reappointment.
(8) There shall be paid to the Commissioner such remuneration (if any) and allowances (if any) as the Minister, with the consent of the Minister for the Public Service, from time to time determines.
(9) The Commissioner may be removed from office by the Government for stated reasons, if, and only if, resolutions are passed by each House of the Oireachtas calling for his removal.
(10) Where the Commissioner is nominated as a member of Seanad Éireann or for election to either House of the Oireachtas, he shall, upon accepting such nomination, cease to hold office as Commissioner.
(11) (a) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein shall, while so entitled, be disqualified from becoming Commissioner.
(b) A member of the Authority or an officer or servant of the Authority shall be disqualified from becoming or being Commissioner."
This amendment is designed generally to improve the Bill. The amendment could be implemented without causing any difficulties. My purpose is twofold. One is to cut down the rather elaborate structure which is proposed in the Bill. Speaking on the Second Stage I said I thought that having some kind of complaints procedure was a good idea and was worth having but that the complaints commission proposal in the Bill was far too elaborate, too bureaucratic, too top-heavy and as it stood it was likely to get very elaborate indeed because there was the situation of a chairman and not fewer than two members— God knows how many would be on it in the end—having not merely an officer or a servant but having officers and servants and the situation where the Minister could make unlimited grants and so on to put this commission into operation and to keep them going no matter how sensitive a role they conceived for themselves.
Whatever about the principle of having a method of dealing with complaints, I felt that the commission proposal was far too elaborate and quite unnecessary. Consequently, my proposal is merely that there should be a complaints commissioner and he could deal with the complaints in exactly the same way as the commission.
I know it will be suggested that one man would not be infallible, that it would be better to have several people—something in the nature of a jury—to consider the complaints and to give the complaints the benefit of their combined wisdom, experience and so on and that in that way there would be a better opinion, a better joint view as to whether the complaints in all circumstances were reasonable and should be investigated or frivolous complaints that need not be considered too seriously.
I agree that if there was a commission in the nature of a jury, four, six or eight people, there probably would be something in this. Their combined view might be better than just the view of one man. Nevertheless, there must be a limit, some common sense and realism about how far we would go in this kind of a structure in order to get an objective and realistic view of complaints. A very obvious comparison that one can make is with an ombudsman which is widely accepted, where one man gets complaints dealing with several Government Departments, usually the whole public service. One man has to decide whether complaints are reasonable, if they should be fully investigated and pressed or whether they are not to be taken very seriously. It is only one man who does it.
Why should we have in this kind of a situation an elaborate structure with an unlimited number, not fewer than two—I do not know how many the Minister had in mind? It seems to be entirely too top-heavy, too elaborate and with the kind of encouragement it will be given, of having the facility to appoint officers and servants and such ranks as it may require, it will not only be able to play far too big, elaborate and extravagant a role, but with that kind of facility and these kind of powers it is more than likely to be encouraged to do so. For that reason I suggest that a more realistic and sensible way of dealing with this worthwhile situation would be merely to have one commissioner with the same powers as the commission.
Quite clearly the commissioner would have to be very carefully chosen. He would have to be a man of experience, a man of very good judgment and with a completely impartial approach to this problem. It should be possible to get that kind of man. In order to ensure that he would be generally acceptable to the Oireachtas, I have suggested that the order making his appointment should be laid before both Houses of the Oireachtas and they should be in a position to object if they did not feel he was the right man and, by not objecting, endorsing his appointment. In that way we could be fairly satisfied that the Government would genuinely seek to get a man who would be widely acceptable and who would be suitable for the job. The job that is laid down for the complaints commission could be satisfactorily done by such a man.
Senator Ryan began by saying that his amendment is genuinely designed to improve the Bill. I fully accept that statement. I feel that it is so intended. I appreciate the Senator's intention. I therefore considered the amendment very carefully to see whether I could accept it but after due reflection and with apologies to the Senator, I am afraid I do not find that it would, in fact, be an improvement of the Bill. I regret that I am not in a position to accept it.
I do not accept that establishment of a position to be known as the broadcasting complaints commissioner to deal with complaints of alleged breaches of their statutory duties in regard to objectivity and impartiality by the RTE Authority is the appropriate way to deal with this matter. Admittedly, as Senator Ryan has indicated, the practice in a number of other countries is to appoint a commissioner or ombudsman to deal with complaints of maladministration in the Civil Service or local authority service. However, judgments as to whether broadcasts are objective and impartial or are likely to incite to crime and so on, are inherently likely to involve a greater measure of subjectivity than judgments relating to administrative or executive decisions in the public service.
Therefore, it is better to have more than one mind at work. There is also the point that people from different walks of life would be coming together on this and bringing different kinds of expertise. In one case, for example, a legal expert would be desirable; some knowledge of broadcasting and journalistic practice is desirable. All these things may not be found in the one person. For that reason it is desirable that more than one person should be involved in assessing complaints about broadcasts. I cannot agree with the amendment.
I can understand also the complaints made by Senators that the complaints commission may be what Senator Ryan called too top heavy, too elaborate, and I can understand that the extensive wording of the relevant section of the Bill could suggest that. I do not think that, in substance, this is so. As I indicated in replying to the Second Reading, what I have in mind about the commission is that they would operate in precisely the same way as the existing complaints advisory committee. That has been in existence for some time. The only difference is that in order to demonstrate their independence of both RTE and the Minister, they would be serviced by the Department of the Public Service. I do not think that the existing committee are felt to be too top heavy or elaborate nor, indeed, are they felt to suffer from any of the other drawbacks that have been talked about here. I am quite sure that the commission will not be all that different from the committee to warrant such criticism either.
Are the existing committee being remunerated?
No. The commission may not be paid either. In justice to the existing committee which have served without remuneration may I say that they have requested me not to have them remunerated. They are not anxious that the commission should be remunerated, and they may not be. In connection with that, I would have to have in mind the volume of work. If the volume of work is not great and if the members feel they can serve without inconvenience and without remuneration and they are willing to do so in the public service, which reflects credit on them, I think that is acceptable. I did not want to leave out the possibility that the development of these matters, if there were a considerable volume of complaints, that the complaints commission might then be remunerated. It is just that I do not want to exclude it rather than to have any immediate intention of introducing remuneration.
When I moved the amendment I conceded that if there was more than one man, on balance such a commission would have a better view and would be able to combine opinions and views on whether something was impartial or not. It is a matter of how far one goes to achieve that objective. I assume the Minister does not intend to have more than four or five on the commission. Even a commission of that size will not be able to decide on its own: they will make inquiries to try to get some idea of what the man in the street felt about a particular programme.
It seems to me that a commissioner could make these inquiries and sound out public opinion as to whether a particular thing seemed to be impartial or not. In the effort to get the commission so big that they could act on their own, as it were, without getting a view from members of the public, they would have to be very big indeed. If they are not very big the job could probably be done almost as well by one commissioner. It is a matter of weighing up the size of this commission, the cost, the machinery that will be set up, and, inevitably in the long run with these provisions, the result will be a fairly big commission. They will probably have to be paid remuneration; they will probably end up having several officers and servants. No matter what good intentions the Minister may have at the moment about the situation, we will eventually have an elaborate structure dealing with something which could be done quite adequately by one man.
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 3, line 15, after "established" to insert "by the Government,".
I do not propose to go into it at any great length except to say that as I am, as the Minister said, by definition, a highly educated person, I read the subsection to which my amendment refers about four times before I managed to make any sense of it. My two amendments were designed to make it read much more simply and logically. There is only one substantial change, in that the commission should be appointed by the Minister rather than by the Government. It seems to me unnecessary that they should be appointed by the Government. The Minister could do it perfectly well within his own sphere of competence. This is the reason why I put down the amendment, because if the Minister has good reason for not accepting it I think I will be open to it.
I should like to thank the Senator for amendments Nos. 26 and 27. I am happy to accept them. They improve what was a rather tangled scheme into something clearer and better.
Amendment agreed to.
I move amendment No. 27:
In page 3, lines 16 and 17, to delete all words after "Minister" to the end of line 17.
Amendment agreed to.
Amendment No. 28 not moved.
I move amendment No. 29:
In page 3, line 22, to delete "two" and substitute "four, two of whom shall have professional experience of broadcasting,".
First of all I want to say that this is one section on which I agree with the Minister. I am glad that he is, as it were, institutionalising the existing complaints committee. It is an excellent idea. I have some other amendments to it at a later stage in relation to the rights of the person against whom the complaint is being made.
I am putting down this amendment in ease of the broadcasters themselves. They are the people who will be complained against as far as this section is concerned. I think that it is only right that such a commission should be established in the public interest. Also in the public interest I think that it is equally important from the point of view of equity and justice that the people against whom the complaint is being made should have, as it were, people presiding over the complaint and deciding the complaint who have experience of the nature of broadcasting work.
I understand that on the committee at the moment there is one such member, a very eminent journalist, and also a broadcaster. I should like to have it written in that there should be at least two people on a commission of five who would have experience of broadcasting, be aware of the nuances of broadcasting, be able to put the point of view that a particular broadcast had a purpose which at first sight might appear to offend a non-broadcaster or the public—the whole point of view on the part of the broadcaster, producer, director or cameraman or whoever is involved in the production of a broadcast. While I appreciate that it can be put to the commission, I feel that the commission would be enhanced by having on the commission people who would understand the point of view being put by the people against whom the complaint is being made. In equity I feel that they have an equal standing in a matter of this kind according to justice as the people making the complaint.
For that reason what I would suggest here is a commission of five, a chairman and four others. I suggest in the amendment that two of these should be people who have professional experience of broadcasting. That is the effect of the amendment, to delete "two" and substitute "four", who will sit on the commission in addition to the chairman, and that two of them shall have professional experience of broadcasting. I think it would bring a balance into the theory and determination of the complaints and apply justice in an even-handed way, not only to the complainants but also to the people involved in the broadcast so that their case can be judged on the best broadcasting criteria.
I appreciate again that this amendment, like the amendment that stands in the name of Senator Martin, is an effort to improve the Bill. It is an effort to improve it in an opposite direction to Senator Ryan's amendment. Senator Ryan would have one commissioner, Senator Lenihan would have a commission of five members.
Several Senators have criticised the provisions regarding the broadcasting complaints commission on the grounds that it would be cumbersome and elaborate. I have a certain sympathy with these criticisms, and partly for this reasons I considered that a commission of three members including the chairman should be adequate initially. It will always be possible to increase the size of the commission should this be considered desirable. I should like a certain flexibility in relation to this matter.
As has been pointed out, while the existing committee, like the British commission, serve a very useful purpose in being available, they have not had to consider a great volume. I think for the present kind of volume three people should be enough and should provide a sufficient plan of competence with the possibility of inquiry and drawing on others as indicated by Senator Ryan in defending the concept of a smaller number.
I do not think it desirable to have a statutory requirement that a given number of members of the commission shall have professional experience of broadcasting. I should not like to build in something that would seem to say that a certain proportion of the commission are meant, as it were, to speak up for the broadcasters. I envisage for the commission a more detached and quasi-judicial role than one of identification with any particular set of views or habits in this matter.
The gentleman to whom Senator Lenihan referred to, a member of the existing committee, is a professional journalist of long experience, with experience of broadcasting, but not himself either a professional broadcaster or a former professional broadcaster. That I think is more the sort of person one would have in mind for this particular matter. I regard detachment as desirable. I am not ruling out professional broadcasters but I do not want the statue to impose the need for having a fixed proportion of the membership of the commission made up of professional broadcasters.
Amendment, by leave, withdrawn.
Amendments Nos. 30 and 31 may be taken together.
I move amendment No. 30:
In page 3, line 36, to delete "remuneration or".
In relation to the point that Senator Ryan was making, I believe the complaints commission should be basically a very simple arrangement, something that would have little substructure or superstructure. I should hate to think of them being erected into a structure which would become self-perpetuating, which began to look for reasons to justify their existence. One of the ways to do this is to enact that whoever is involved in this commission, as a commissioner, should not receive any remuneration. Unless I am wrong, this is the situation that obtains in other countries where similar arrangements are in train. I purposely left in the expenses clause because I think it is natural that anybody who is doing this sort of work on behalf of the public should be entitled to some recompense for his out-of-pocket expenses. To fix a salary for a job like this is to run the risk of creating an unnecessarily complex and unnecessarily self-justifying mechanism.
There is force in the points made by the Senator and I shall bear them in mind. However, at this stage I do not want to rule out altogether my accepting the amendment. The possibility is that in the future it may become desirable to remunerate members of the commission. If it appeared that, for one reason or another, the volume of their work was such that it would be difficult for people to undertake it without sacrificing other things it might be necessary to compensate them. I would regard it as on the whole undesirable that that should happen. I will bear in mind, in any future decision that may be taken by me in relation to this, the points the Senator makes. I would like to leave in the possibility of providing remuneration if, in the future, that should become desirable.
Am I right in thinking that the persons who fulfils this particular function in the BBC do not receive remuneration?
So far as I am aware they do not. Neither do the existing complaints review committee. As I mentioned before, the members of that committee have indicated that they share the Senator's point of view on this. But the views of present members, altruistic and respected though they are, are not necessarily binding in relation to the future membership of the commission. I would like to preserve the power to do this in case it should be desirable to do it at a future time.
Amendment, by leave, withdrawn.
Amendments Nos. 31 to 33, inclusive, not moved.
An Leas-Chathaoirleach
It is proposed to take amendments Nos. 34, 40 and 41 together.
I move amendment No. 34:
In pages 4 to 7, to delete section 18B and substitute the following:
"18B. —(1) Subject to the provisions of this section, the Commission may investigate and decide any complaint alleging a breach of the statutory duties relating to the content of broadcast material imposed on the Authority by this Act, or any complaint related to the activities of a person licensed to provide or distribute local programme matter under section 17 of this Act.
(2) The Commission shall, in consultation with the Authority and subject to the approval of the Minister, devise appropriate procedures and norms which it will observe in the hearing of any such complaint.
(3) Any such procedures and norms may be revised by the Commission from time to time, in consultation with the Authority and subject to the approval of the Minister.
(4) A document containing full details of all norms and procedures shall be sent by the Authority or by the Commission, as the case may be, to any person who submits a complaint in writing to either body, and shall be made available by the Minister to the public free of charge through post offices and sub-post offices.
(5) When the Commission proposes to investigate a complaint made under this section, the Commission shall afford to the Authority, and, in any case in which the complaint relates to a programme or programmes produced by employees of the Authority, the producer or editor directly responsible for the said programme or programmes, an opportunity to comment on the complaint."
In this amendment I have tried to write down in some detail what is in many ways a fundamentally different approach to the whole question of a complaints commission from that which finds its place in the Act at the moment. To my mind, it is not always necessary or useful to write too much into a piece of legislation. We have discussed this to a certain extent on Second Stage and to a certain extent in connection with other sections of this Bill.
I drafted this particular amendment in a search for simplicity because I believe that to tie the complaints commission down too much would be to make the whole structure of the Act and, indeed, probably of the commission itself top heavy. If I may rehearse the provisions of this amendment, because I think they are important, the first confers on the commission a blanket authority to investigate and decide any complaint alleging a breach of the statutory duties relating to the content of broadcast material imposed on the Authority by this Act. This is the main contention of the first part of my amendment. This is much simpler and much plainer than spelling out in enormous detail that they may consider complaints under any one of six, seven or eight different headings. The second part of the first section of my amendment relates to local broadcasting and, perhaps, could be discussed more fruitfully when we come to that section of the Bill.
It seems to me that my section 18B (1) covers the area in which the commission may investigate complaints in a very much more simple and straightforward fashion than the section which it proposes to replace. The second subsection of my amendment, in effect, totally cuts the rather cumbersome machinery laid down in the Bill for the operation of the commission with regard to the hearing of complaints. In this section of the Bill there are all sorts of norms laid down, all sorts of procedures, all sorts of time scales and deadlines. It seems to me that these may prove, in practice, to be either unworkable or a nuisance or perhaps even more importantly they may prove to hamper the right of any person to complain. I share with the Minister and all members of this house a desire to facilitate people who feel they have been in any way wronged or misrepresented by any action or programme of the Authority. This can be carried out much more satisfactorily if the commission are left with a much freer hand with regard to the devising of their rules of procedure.
My second subsection effectively says that the commission can devise their own norms, but subject to the approval of the Minister. This is the democratic safeguard that has to be put in. It is much more important, in fact, to put the democratic safeguard in here in the general approbatory sense that the Minister's approval is required, than to try to spell it out once and for all in an Act which remains on the Statute Book for a decade or even longer. On the other hand, one also has to recognise that procedures and norms may have to be changed. If we pass the Bill in its present form, the Minister will have to bring in amending legislation if any one of the norms which he has laid down in the Act proves to be unworkable or proves not to fufil the purpose which he has envisaged for it. This is, of course, assuming that it is not one of the norms which can simply be ignored. This is why my third subsection sets up a procedure for changing the norms at the commission's will but also in consultation with the Authority and also subject —and this is the democratic safeguard —to the approval of the Minister.
The fourth subsection of the amendment is something which I feel quite strongly about. In this day and age in which we live there is a proliferation of red tape. Very often people who are in positions of power, whether they are in bureaucracies or governments, can frustrate the legitimate wishes of people, and can frustrate the legitimate rights of people, simply because they have greater knowledge of the rules of procedure and they have greater access not just to the levers of power but also to knowledge about the way in which the system runs—the methodology of power.
This subsection in my amendment is based on the belief that any form of knowledge or inside information which is available to the bureaucrat should also be available to the person who complains against him. People cannot be expected to utilise procedures properly unless they are given the maximum possible amount of information. I am envisaging a slightly cumbersome process, perhaps, but one which is absolutely essential to my mind if the rights which the Minister wants to guarantee and which I want to guarantee are to be safeguarded.
A document which can be in a relatively simple form—it does not have to be expensively printed—containing all the details of whatever norms and procedures the commission adopt in hearing complaints, should be universally available to anybody who wants it at post offices and sub-post offices, and should be automatically sent by the commission or the Authority to whoever submits a complaint to them in writing, so that right from the word "go" anybody who is serious about making a complaint knows exactly what he has to do, knows exactly when he has to have his complaint in, and what rights are available to him in the hearing of his complaint.
The final subsection of this amendment is again a fairly obvious one. Its purpose is to impose a statutory duty on the commission and, perhaps, the only statutory obligation in point of detail I would like to see imposed on the commission, that it should in the case where a complaint is made against a programme put out by the Authority, give an opportunity to somebody who has been involved in decision-making connected with that programme to be heard. This is a very simple statement and statutory form of the very old common law that everybody has a right to be present at his own trial. In so far as the commission's procedure will be judicial—and they will only be judicial of course in a very generic sense—anybody who stands to be blackened by them, or criticised because of them, must have a right to be present especially if he is a professional journalist, or a professional person involved in the media.
There was one instance of that quite recently in connection with the activities of the complaints committee already set up by the Minister, in which a complaint was heard and adjudicated on by that committee without hearing the broadcaster particularly concerned. I have been given to understand that this complaint, which was unanimously rejected by the committee, was rejected because the committee felt that it did not have a shred of substance in it, and they did not think it was even worthwhile calling the broadcaster concerned, because they felt it would be an unnecessary intrusion on his time and they felt that really he did not have a case to answer. My point is that, whether a broadcaster has a case to answer or not, the broadcaster in all cases would like to be present, and would like to make sure that his point of view is heard before a decision is taken. It is the least in common justice that the Oireachtas could afford to him.
Amendment No. 40 is on all fours practically with subsection (5) of Senator Horgan's amendment and it is in the same line of country, in other words, guaranteeing and writing into statute here the rights of the person complained against. The broadcaster, the person involved in the production and direction of the particular broadcast, anybody involved who would feel aggrieved by the complaint made against the particular broadcast, surely has an elementary right in justice to be heard. In view of the quasi-judicial nature of the complaints commission proposed to be established, a commission that will be written into statute and not just an ad hoc committee as the Minister had heretofore, surely it is elementary that any person involved in the broadcast who feels that his or her interest may be adversely affected by the complaint should have an opportunity of making submissions to the commission.
On the assumption that the people appointed be the proper people I am sure that such will be the case. I am certain that that is a pragmatic answer the Minister can make to me. They will, in fact, be called and asked for their views on foot of the complaint that has been made. That may be all right in regard to an ad hoc committee but here we are writing in to this statute a commission with substantial functions extending over four pages in the Bill. We are setting it up as we set up any such quasi-judicial tribunal of this kind. In whatever wording the Minister may devise between now and Report Stage I would ask him to give consideration to the point of view expressed in Senator Horgan's subsection (5) of this amendment and in my amendment No. 40. They are both concerned with the elementary aspect of giving the offended party a hearing and writing into the statute that the offended party against whom the complaint is made has this elementary right to make his submission to the commission rather than having a decision made in absentia.
As the Bill stands a complaint is received by the proposed commission. It can be discussed, debated, conclusions reached, decisions made without the broadcaster or broadcasters or people involved in the broadcast being called to make submissions or put their point of view in the matter. There is a very basic point of justice here and I should like to suggest very strongly to the Minister that he should either adopt Senator Horgan's wording or my wording or, in the event of either of those not being satisfactory from the drafting point of view, between now and Report Stage, he should draft an amendment himself.
On the main body of Senator Horgan's amendment I would like to support him strongly in his suggestion. I am all for readability and flexibility and simplicity in drafting. He has made an excellent drafting job of subsection 18B of section 4 and, with all due respect to the draftsman responsible, a far more readable and basic sort of approach to the drafting. It is sensible that the procedures and norms should be adopted by the commission in consultation with the Authority and subject to approval by the Minister. That document can be made available to the public as suggested here.
In that way one does not have such a cluttered section as exists at the moment where, as it were, the Minister is seeking to catch everything. A much more practical way to approach it, a pragmatic approach in my view, is along the lines suggested here by Senator Horgan. I should like to support his amendment in toto and to suggest to the Minister that if he does not see fit to adopt it tonight, he might consider that type of simplified practical approach, rather than the four pages of norms and criteria which must be adopted by the commission as envisaged. There is a basic right here residing in the person against whom the complaint is being made to have his or her side of the story made known to the commission and to have it written into the statute that he or she has this right in the event of a complaint being made against the person involved in the broadcast.
Let me begin by conceding, as I freely do, that the amendment in the name of Senator Horgan has a simplicity and, indeed, an elegance which are lacking in what they are intended to replace. I have sympathy with Senator Horgan's intention and with that of Senator Lenihan also. I would have liked to be able to accept a simplifying amendment if something else was not lost by it. I have accepted earlier simplifying amendments from Senator Horgan when that was the case.
Unfortunately, it seems to me that the method by which Senator Horgan achieves simplicity and, indeed, as I said, elegance, here is by leaving too much to the Minister. The relatively cumbersome—I would accept the description "cumbersome"—provision in the Bill has the advantage in its pedestrian way that it does spell out publicly and as part of the Bill for the approval of the legislature, just what is to happen under this. This general approach is quite fundamental to this legislation, that is to say, the more matters can be put before the Oireachtas, the more the representatives of the people know what they are buying, the better it will be. This may lead sometimes, and has led in this case, to a certain prolixity, but I would rather pay that price than take the kind of short cut here provided.
Senator Horgan says that the democratic safeguard provided in his amendment is the approval of the Minister. I am gratified by the Senator's implied confidence in ministerial approval as a democratic safeguard and, of course, I know what he means by it. I, myself, would regard ministerial approval as a kind of democratic safeguard, but I do not regard it as as good or as full or as fundamental a safeguard as approval by Parliament of known provisions. There then can be no possibility of any departure under the guise of approval from the intent of the legislature. In virtually everything of importance that this Bill tries to do, this is the principle that is built in: the more the Oireachtas is brought in to the control of broadcasting the better it will be. Curiously enough I think it was Senator Horgan himself who best expressed this concept in referring to another aspect of the Bill. He says that this brings—I paraphrase; I am sorry to use that word again, but I hope my paraphrase will be accepted——
It is less contentious.
I think so. He said that the section of the Bill brought control over broadcasting, control over a particular aspect, to the Oireachtas, where it properly belong, rather than to the executive. I feel that his simplification here would have the opposite effect to that, that it hands something back to the executive, to some degree, which I would prefer to leave to be brought under the conscious judgment of the Oireachtas so that everybody knows exactly what is being done.
Specifically, I consider that if the complaints commission are to be and are to be seen to be independent, mandatory consultation with the Authority and approval of the Minister for the commission's procedures and revision of these procedures would be undesirable for reasons of a general character I have tried to set out. I would prefer, as is proposed in the Bill, that these procedures should be laid down at the outset. I do not see a need to provide in legislation that the procedures of the commission should be sent to complainants and should be available to the public at post offices. The secretariat of the commission should, I think, be able to devise satisfactory methods of making the procedures known to interested parties.
With regard to allowing producers and editors of programmes complained of an opportunity to comment on complaints, it should be remembered that the commission are empowered only to investigate unsatisfied complaints against the RTE Authority. The Authority will have the statutory right to put their case to the commission. I would expect that the Authority would be able to safeguard the interests of their employees if the need arose. The case was mentioned where the existing committee considered and totally rejected a certain complaint without troubling to hear the person affected by the complaint. I must say I cannot feel that the committee were seriously at fault there. I would feel them to have been very seriously at fault if being about to find that there was even the slightest substance in the complaint, they refrained from hearing the person affected.
That would be very wrong, but is it so wrong to dismiss a complaint as totally frivolous and unfounded without hearing the person against whom that frivolous and unfounded complaint is directed? I would not think that it is so in any obvious way. On the other hand, if broadcasters would be re-assured by the inclusion of something of this kind, I regard it as important that broadcasters should be as much at ease with the provisions of the new legislation as is reasonably possible and I am prepared to give Senator Lenihan's amendment and the equivalent provision in Senator Horgan's amendment consideration between this and the next Stage of the Bill to see whether we cannot find something that would satisfy that point, but I do not feel that there is substantive ground for uneasiness in this matter.
As I already said, the commission are being set up to investigate complaints against the RTE Authority. I do not think it would be appropriate that it should investigate complaints concerning any local programme matter distributed on cable systems under section 17. Such programmes are only at the experimental stage and, if experience shows that some special arrangements are desirable for investigating complaints, the matter can be looked at again. In fact, if this whole business of local broadcasting takes off—which it has not yet done —then specific legislation might be required for dealing with local broadcasting generally, apart from the brief provisions in this Bill. Briefly, I find myself unable to accept most of Senator Horgan's amendment and I shall give further consideration to subsection (5) of it, as well as to amendment No. 40.
I am glad to hear the Minister say he will give further consideration of this matter between now and Report Stage. I urge him, in doing so, to have regard to the fact that, if he is going to accept either of these versions, Senator Lenihan's is fairer, I think, to the people concerned because it covers anyone who could be adversely affected. Senator Horgan's amendment relates only to the producer or editor directly responsible, and were there to be an allegation that some cameraman had committed an invasion of privacy he would not be entitled to be heard under Senator Horgan's amendment. If one is to be considered at all Senator Lenihan's amendment is, on the whole, better from the point of view of those immediately concerned.
I would also ask the Minister to consider—I think it is important to deal with this point—that there could well be a successful High Court action in the event of there being an adverse decision taken by the commission without having heard the people concerned. The Minister may well say that the commission in such a case would, of course, hear the people concerned but, nonetheless, since there is so much in this section, it would seem desirable to add this little bit more to ensure that this could not happen. There is very little doubt that were an adverse decision to be made covering a cameraman, a producer, an editor, or anyone else, by the commission, without giving them an opportunity to make submissions or, perhaps, to be heard in person, they would clearly have a cast iron High Court action to have the decision set aside. The Minister should consider that point.
The difference between the Minister and myself on this is only a hair's breadth, but a very important hair's breadth. For once I find myself on the side of the line I do not particularly like in the matter of how far one goes in legislation with regard to curbing Ministerial powers and how far one goes in legislation writing things into Bills. I remember saying on another occasion in this House that basically a lot of our problems would be solved if, rather drastically, by passing legislation—one in respect of each Department—saying the Minister may do whatever he likes. In all Bills there is a compromise between saying this, on the one hand, and saying, on the other, the Minister may not do anything except what is written in the Bill. It is with considerable trepidation that I attempt to write in a subsection to a Bill which takes a certain matter of such importance out of the immediate purview of the Oireachtas and leaves it to an on-going debate between the Minister, the Authority and the commission.
However, having said that, I want to make a couple of points in defence of what I proposed and in reply to what the Minister has suggested. First of all, the power I am giving to the Minister under my amendment is merely a negative veto power. In other words he has obviously the power of sanction of these norms and procedures under my amendment. He may say: I will not wear this; I will not wear that; he may not say to the commission or to the Authority: you must do this; you must do that. In a sense, this leaves proportionately more power and responsibility with the commission and, to a lesser degree, the Authority and the Minister. This is where the real locus of power is, with the commission.
It is important that with the commission, as with the Authority itself, having set it up, we should not endeavour to hobble it like a nanny-goat. If we are going to set up an Authority and give people a public trust to run a public broadcasting service for us we should leave them as free as it is in conscience possible for us to leave them be. If we are going to set up a complaints commission of people in whom we repose a very substantial degree of trust we should not undermine that trust by attempting to write the rule book for them. In this particular regard I feel my amendment is quite reasonable.
On another matter also its reasonableness is apparent. I sympathise and agree in principle with the Minister's very firmly-expressed conviction that we should write as much as possible into legislation. This is basically and fundamentally a good principle and we should be slow to depart from it. On the other hand, we are dealing here with a service and an institution which is overwhelmingly public in character. Despite what the Minister says an Act of the Oireachtas is not the most public form of communication I can envisage. I doubt if I ever opened an Act of the Oireachtas—and I am, as the Minister continues to say, a highly educated person—before I walked through the doors of this House for the first time.
I said it only once.
If he repeats it, I will not object. We are trying to do two things—to set up efficient procedures for complaints and, secondly, ensure that people are made aware of their rights. While people's rights may be written into an Act of the Oireachtas, it is not the same thing as saying that they are, therefore, aware of them however much debate there has been here or in the other House. Very few people actually read Acts of the Oireachtas.
Again I had some trouble in decoding all of 18B as it exists in the Bill. But, confronted with that, I imagine that any Joe Soap, or Seosamh Ó Galunaigh, faced with this incredibly complex collection of provisions might well be tempted to throw his hat at it.
In debate on an earlier section, in connection with the invasion of the right to privacy, the Minister made a very telling point, that the point of having a provision of this kind in the Bill was to protect the kind of person who would be least likely to complain of an invasion of privacy, the person who would be least likely to take legal action or who could not afford to do so. This is the kind of person with whom we have to be concerned with throughout the Bill. I do not think this type of person is very well catered for by simply thrusting 18B of the Act under his nose and hoping he will make the best of it.
On balance, while in general being very much in agreement with the principle of writing things into Acts, I would still urge the possibility of my amendment upon the Minister. If he is anxious about the details of Oireachtas publicity and Oireachtas review that might have to be met by writing in perhaps between subsections (4) and (5) of my amendment provision to the effect that any such document containing all norms and procedures shall be laid, in the normal manner—as is very often the case with statutory instruments—before the Houses, and that either House shall have the possibility to reject or amend it in a suitable statutory fashion. This is the kind of procedure which is very unlikely to be adopted by either House, which would build-in the parliamentary safeguards of which the Minister is so conscious. While not pressing my amendment at this point, I would urge the Minister to consider not merely subsection (5) but the other subsections and perhaps the additional subsection I have offered him between this and the Report Stage.
As an unrepentant believer of not writing too much into a statute, I must support Senator Horgan from the other point of view.
I hope he is examining his conscience.
I do think there is too much written into the section by way of criteria procedures and norms. I do not think one can do this in a matter of this kind. That is why I am very attracted by the procedure suggested by Senator Horgan, particularly in view of the fact that the Minister, at a later stage in this section and in a subsequent amendment, has seen fit to put in an amendment of his own, amendment No. 56, which meets the spirit of an amendment of mine, amendment No. 57, which says that copies of any such report of the commission shall, as soon as may be, be laid before both Houses of the Oireachtas. As Senator Horgan has just stated there is a safeguard there in that such a report can be examined in the parliamentary forum. As long as that safeguard is there, I feel it would be better to have a more simplified form of procedures, to be decided—as suggested in Senator Horgan's amendment—by the commission, the authority with the approval of the Minister. Once the safeguard exists of subsequent parliamentary scrutiny on foot of any report a more simplified form of procedure might be better.
Without wishing to bite the hand that has been feeding me so generously from the left, I would like to point to a distinction between subsection (5) of my amendment and Senator Lenihan's alternative. Whereas my subsection relates only to employees of the Authority, and has been criticised by Senator Yeats for that, Senator Lenihan's amendment would afford redress to anybody who feels that his interests may be adversely affected by a complaint. This seems to me to widen very much the possibility for litigiousness, if I may say so, among persons who may feel they have been affected. The point at issue is that, no matter how unreasonable they may be in thinking they have been affected, if they identify themselves as somebody who has been affected they would, if this form of drafting were accepted, have the right to be heard. While my drafting of it has been criticised by Senator Yeats as being too narrow I suspect that the opposite criticism could be made of Senator Lenihan's drafting. Perhaps it might be possible to have something in between written in.
I agree with Senator Horgan that my drafting in section 40 is a bit wide; his is a bit narrow. But as the Minister has promised that between now and Report Stage he will examine the matter, I shall leave it at that as long as the spirit of what we are both saying is that anybody involved in the broadcasting process, from the cameraman to the producer, or the broadcaster does have written into statutes the basic right to make his or her submission in regard to any complaint. That is the sense of what we mean. If the Minister approaches it in this manner between now and Report Stage, I certainly withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment No. 35 not moved.
Government amendment No. 36:
In page 4, lines 57 to 60, to delete paragraph (e).
An Leas-Chathaoirleach
It is proposed to take amendments Nos. 36, 37, 50, 51, 52, 53 and 54 together.
A number of Senators question the wisdom of including in the functions of the commission the power to investigate complaints of breaches of programme practice and, in particular, the granting of power to the Minister to issue directions in relation to codes of programme practice. Senators' fears in this regard were exaggerated. In particular, there was no question of the Minister being given power under subsection (13) to interfere with the authority's power to prepare codes of programme practice or to limit their autonomy on programming matters. However, in reconsideration and in deference to the views of Senators, I have decided to exclude from the functions of the commission the power to investigate allegations of breaches of programme practice. Subsection (18) (1) (e) refers. The deletion of this subsection involves consequential deletion of subsections (13) and (14).
I should like to thank the Minister for meeting my amendments in this way. Indeed he has gone even further than I had asked. I left the procedure for him in subsection (13), page 6, for allowing the Authority to bring in codes for programmes other than advertising, merely eliminating the power of the Minister to give a direction. The Minister has abolished this altogether which, I must say, I am happy to see. All this has one incidental advantage of eliminating from this long section some of the most complicated subclauses, which has greatly eased the situation.
It is only fair to say that the Minister, in abandoning these provisions, has done rather more than taking these codes of practice for programmes away from the aegis of the commission. There was a provision in section 13 for the Minister to give a direction in relation to the code which would appear to have given him considerable power with regard thereto. However, he has now abandoned all this and I must thank him for doing so. I am happy to withdraw my various amendments.
Amendment agreed to.
Amendment No. 37 not moved.
I move amendment No. 38:
In page 5, between lines 16 and 17, to insert a new paragraph as follows:
"(h) a complaint that the Authority failed to comply with the requirements of section 17 of this Act (inserted by section 13 of the Broadcasting Authority (Amendment) Act, 1975)".
The aim of this amendment is to bring within the province of the complaints commission the general duties laid down in section 13 of this Bill for the Authority in whatever form it finally emerges. This is the section that deals with the cultural aspect of the activities of the Authority. I am not going to go into the details of the provisions of section 13, on which I suspect we will have quite a lot of discussion when we reach it. The section, in its present form, deals with the Authority being responsive to the interests and concerns of the whole community, mindful of the need for understanding and peace in the whole island of Ireland and so on; having regard to the culture of the people of the whole island of Ireland; upholding the democratic values enshrined in the Constitution; having regard to the desirability of promoting understanding of the values and traditions of countries other than the State, and so on.
These are important matters. We will have some considerable argument about the precise form they should take. I certainly hope the Minister would be amenable to amendments which have been put down on this section. But whatever form it finally takes, it seems clearly very desirable that the Authority should carry out the provisions of this section. Yet we have the position that all these matters are deliberately excluded from the functions of the broadcasting complaints commission. In other words, nobody can go to the commission and make a complaint for example, that the Authority, in certain programmes, have not been responsive to the interests and concern of the whole community or to the need for understanding and peace in the whole island of Ireland and so on. It seems that this is a matter which could very usefully come under the authority of the complaints commission. Therefore I would suggest that it ought be made possible for any person interested to say to the commission that in this respect also the RTE Authority are not carrying out the functions allotted to them by this Bill. I do not see the point for excluding one aspect of the duty laid upon them where other aspects of perhaps only equal or less importance are covered by the activities of the broadcasting complaints commission. I ask the Minister to accept this amendment.
During the debate on the Second Stage, several Senators expressed misgivings about the possibility lest the complaints commission should develop into the kind of body which would encroach on the legitimate province of the Authority leading to conflicts of jurisdiction and a general sense of uncertainty about control of broadcasting. I was concerned to ensure that these misgivings should not be well founded. Of course I have been in touch with the Authority about the general shaping of the Bill. I feel that acceptance of such an amendment as this — though I accept that it is not so intended, that it is intended as an improvement to the Bill—would provide more ground for this kind of misgiving. The proposed amendment provides that the commission could investigate complaints alleging failure by the Authority to comply with the general statutory duties laid down in section 17 of the Act. This, in my view, would involve a significant broadening of the functions of the commission to cover general programming as distinct from individual programmes and would, therefore, unduly erode the Authority's autonomy in such matters and lend ground for the misgivings I have already expressed.
I have not consulted the Authority about this amendment but I would be surprised if the Authority did not share my misgivings about the implications of an amendment of this character which would appear to give the Authority a kind of oversight over general programming as distinct from, as it were, blowing the whistle on individual complaints. Therefore I regret I cannot agree to the proposed amendment.
I am sorry the Minister cannot see his way to agreeing to this amendment. I am somewhat surprised to find him quoting the wishes of the Authority as a reason for not accepting this amendment, since clearly — one can never get away from this section — the whole basis of section 6 is that the Minister wishes to overrule the Authority on that very vital point. Therefore, one is not as impressed as one might be otherwise by his statement that he is unable to accept the amendment because the Authority would, perhaps, not like it.
One wonders, in the absence of this amendment, what is the purpose of section 13 because we are laying on them, in some detail, various general duties. Yet there appears to be no kind of method of seeing whether they carry out these duties, nor any kind of supervisory body that can say whether they are carrying out these duties. Once one goes into such detail on the whole question of this broadcasting complaints commission, it would seem sensible enough to add these duties to them. I was one of those who said that this was raising up an enormous and complicated edifice to very little purpose only. I think the Minister said, in the course of the Second Reading, that the existing broadcasting complaints commission, in its present informal unofficial existence, had had only two or three complaints over the past number of years. That being so, it would appear there is scope for a little more work being given to them. The enormous complexity of the thing is not a function of the actual work they perform but of the way in which section 4 has been set out. They have an enormous edifice for a body which, apparently, has had only three complaints so far. Therefore, in that light and the probability that the number of complaints in successive years will not greatly increase, it would seem that they could perform a very useful function without over-burdening them in any way, in acting as a general supervisory body to see that Radio Telefís Éireann do respond to the general duty which the Minister is laying upon them in the Bill.
As I see it, section 16 lays down certain general principles under which the Authority should be required to function.
Section 13.
Section 13. It seems to me to be rather incongruous if the commission is given power to criticise the body which in fact is its master, the Authority. I should think that the body or person to which the Authority should be subject is the Minister himself, not the commission.
On a point of emphasis, I should like to correct one point made by Senator Yeats when he said: the Minister wishes to overrule the Authority. I think the Senator misreads the relation between the Minister and the Authority if he thinks that. I have consulted with the Authority and with the Chairman of the Authority at many stages in the evolution of this legislation who were satisfied with most aspects. There are some aspects about which they have reservations. But this matter of the complaints commission is not one of those. They are glad to have an independent body to which complaints can be made regarding individual programmes, the kind of commission which I propose. But, the kind of situation which would be created by this, where the commission sits in judgment as to whether the Authority is, in general, carrying out the requirements of section 17 of the existing Act or section 13 of this one, would create an entirely different situation which it would be necessary to overrule. I do not want in general to engage in overrule. I would prefer to dissuade the Authority where I can. I would prefer to try to carry the Authority along with the intentions of the Government in relation to the legislation and with the Oireachtas. There is ground for very substantial autonomy here. I would moderately deprecate the expression made use of by the Senator.
I want to make an inquiry at this stage. I am somewhat confused trying to reconcile the sheet handed out which involves the suggested grouping of amendments with the debate as it is proceeding at present. It may be my fault. Therefore, I am making an inquiry in the matter. Are we, at this stage of the debate, discussing section 13 of the Bill.
An Leas-Chathaoirleach
We are discussing amendment No. 38. When we have finished with the amendments we can discuss section 4.
Amendment No. 38 does not appear, as far as I can see, on the sheet of suggested grouping of amendments.
An Leas-Cathaoirleach
It is not in the grouping, it is on its own.
May I ask further whether section 13, in terms of an amendment, will arise at a later date?
An Leas-Chathaoirleach
Each section is taken as a section on Committee Stage of a Bill.
My difficulty was that amendment No. 38 does not appear in this group. I was confused as section 13 was being mentioned so often in the debate.
I would just like to assure the Minister that it was not at all in relation to section 4 I was suggesting he was overruling the Authority but, of course, in relation to the famous section 6 that we can barely refrain from discussing at ten second intervals. I am prepared to withdraw this amendment, though I moderately deprecate the Minister's inability to accept it. Someone needs to see whether the Authority, in this respect, are living up to the obligations placed on them. Otherwise, I cannot see any point in having a section that lays a general duty on the Authority. Of course, the Minister can do it. But, were the Minister to feel the Authority were not carrying out their duty, all he can do is telephone them, or go and see them, and suggest that they might improve their ways. But that is all done in private and we do not hear anything about it. The advantage of having the commission deal with these matters is that they would be issuing reports from time to time. Therefore the public would have the opportunity of hearing from this impartial and independent body as to whether the general duty laid on the Authority was being fulfilled.
Amendment, by leave, withdrawn.
Amendments Nos. 39 to 47, inclusive, not moved.
Amendment No. 48. It is now within one minute of the time fixed for the adjournment debate. I take it the Senator would wish to wait until the next sitting day?
Yes, unless the Minister would like to say he is accepting it and we could dispose of it.
I am afraid I cannot say that.
Progress reported; Committee to sit again.