I move amendment No. 42:
In page 10, lines 38 and 39, to delete "or a matter of a particular class"; and in line 43 to delete "or any matter of the particular class".
I referred to this on Committee Stage because I had grave difficulty in understanding what the reference to "a class of matter" or "a matter of a particular class" is about. Any research I did into this area leads me to suspect that it is a dangerous ambiguity. Before starting on that I would like to ask whether, in fact, there has been a change from the wording of the Principal Act and, if so, whether this change is of any significance. I have not got a copy of the Principal Act with me but my recollection of it is that the reference in the Principal Act is to "matter of a particular class". Is there a change here to "a matter of a particular class"? Has the indefinite article been inserted before the word "matter"? If so, has this any particular political or legislative significance?
On the whole question of "matter of a particular class", I think it is very relevant to remind the House that the greatest single row which occurred about section 31 was precisely about a directive which was issued by a predecessor of the Minister in relation to "matter of a particular class". The particular direction called upon the Broadcasting Authority under section 31 to "refrain from broadcasting any matter of the following class, that is, any matter that could be calculated to promote the aims or activities of any organisation which engages in, promotes, encourages or advocates the attaining of any particular objective by violent means". That directive lay, as it were, on the statute book for quite some time until the Government of the day activated it and served notice on the Authority that they believed they had contravened it, after having refused consistently to give the Authority any clarification of what precisely the directive meant.
Indeed, this was during a period in which it could be and was fairly argued that matter very similar, if not indistinguishable from, that complained of by the Government had been broadcast without any particular wish by the Government to do anything about it. In the same volume from which I have already quoted as reported at column 2465 the then Deputy Garret FitzGerald said that the original order was so imprecise as not to be effective. Unfortunately the opposite was true. It was so imprecise that it did not have to be acted on until the Government of the day found it politically appropriate to do so. Precisely because it was a directive under this very vague heading relating to matter of a particular class, it could be activated by the Government on political rather than on logical grounds and indeed, I suspect that that is precisely what happened.
The Minister himself had some very hard words to say on the directive at various points during the same debate. At column 2481, for example, he said:
That directive could be interpreted as debarring Fianna Fáil from participating in discussions on RTE. It could have been so invoked in the past. People rather dislike historical references but, if that rule had existed in the 1920s, it certainly could have excluded Mr. de Valera from the air, or any reference to the Fianna Fáil Party, because it refers to any matter that could be calculated to promote the aims or activities of any organisation which engages in, promotes, encourages or advocates the attaining of any particular objective by violent means.
Again at columns 2482 to 2483 he said:
I understand that the Authority asked the Minister for light on his directive. I believe they submitted an interpretation to him and that he remained in his Delphic posture and refused to give any clarification. That was the order. It was up to them to construe it and, if they construed it wrongly, that is to say differently from the Minister's own interpretation, his own construction of his own words, they would get it in the neck. In fact, the object of the directive was to set up a situation in which they could get it in the neck. Give them a directive that was so vague that almost anything they did was bound to violate it, according to the Minister's interpretation which he held in reserve, and then catch them on some suitable issue when their pants were down.
The most appropriate quotation I think is at column 2487 where the Minister said:
I would think that when the Oireachtas passed this legislation, when they gave the Minister this power, when they gave the Minister power to ban—that is the word— matter of any particular class they surely imagined that class would be rather sharply defined. It is not sharply defined here.
This is the nub of the problem. This is the nub of the ambiguity which, not necessarily in the hands of the present Minister, but in the hands of any subsequent Minister, might still spancel an Authority, might still spancel the rights and activities of broadcasters. On this question, without wanting to emulate the Minister, there are one or two very relevant quotations from the Oxford English Dictionary on the definition of "class". There are some ten definitions in the dictionary of which only one, the sixth, refers to what we have in mind. Here it is defined as: "A number of individuals, (persons or things) possessing common attributes, and grouped together under a general or `class' name; a kind, sort, division." Two of the subsidiary definitions, in particular definition (b) relating to logical classification, are particularly relevant. One of them introduces a quotation from John Stewart Mill. "By every general name which we introduce, we create a class, if there be any things, real or imaginary, to compose it." Again it quotes Fowler: "We conceive that there is no limit to our power of making classes." Here is the mischief in this particular phraseology. We can make classes with imaginary things. There is no limit to our power of making classes.