On a point of order, is it in order for me to propose that the amendments with reference to licensing of video recording dealers should be recommitted under Article 91 of Standing Orders? It seems to me a far more appropriate way to discuss them than in the understandably rigid procedure of a normal Report Stage. These are new amendments from the Government which deserve more detailed scrutiny than is possible under the proceedings of Report Stage. I would like formally to propose — I should say that I will not call a vote on the matter because I do not want to make it a matter of contention — that they be taken in Committee.
Video Recordings Bill, 1987: Report Stage.
An Leas-Chathaoirleach
Senator Ryan has proposed the use of the facility under Standing Order 91 whereby certain sections of the Video Recordings Bill be recommitted. Is the proposal opposed?
Senators
Yes.
An Leas-Chathaoirleach
Perhaps I should explain that when the motion is opposed the Chair can allow the proposer to make an explanatory statement of the reasons for the proposed recommittal. I would also accept a statement from a Senator who opposes the proposal. I call on Senator Brendan Ryan to make his case.
Quite simply, there are a whole host of issues of policy, a whole host of issues of detail, a whole host of issues of organisation, which are well evidenced by the fact that the Department of Justice felt obliged to produce a five page document to explain why these amendments were justified, and why we should be facilitated in order to have some dialogue with the Minister about the contents of these amendments.
The procedure on Report Stage is that Members, with the exception of the Minister, can speak once unless they are proposing an amendment in which case they can speak twice — once to propose, and once to reply. What we are actually going to say now is that we are all going to have to make set piece speeches, probably lengthy, probably with a series of different considerations in each of them, simply because the Government party apparently will not allow the sort of discussion that would properly apply on a complex issue like this. The last occasion I can recall on which we had a large number of amendments introduced on Report Stage was on the Status of Children Bill. Senator Fennell was the Minister at the time. The Government at that stage, quite properly in my view, agreed to have the amendments recommitted to facilitate an intelligent discussion and a properly organised and structured discussion on which each item of consideration and each question could be dealt with in a proper and orderly fashion.
I find the Government's objection to this incomprehensible and most regrettable. It will not necessarily ease in any way the passage of the amendments because they will be dealt with in great detail in the Dáil. It, therefore, appears to me that the only objective behind the Government's refusal to allow the amendments to be recommitted is simply to speed the passage of the Bill through the House. Given that the Government have been responsible for the enormous delay in proceeding with this Bill, it is a matter of profound regret and it suggests to me perhaps a change in the Government's initially enlightened attitude to the importance of this House in dealing with legislation.
This is one of the Bills which the Government announced they were introducing here, because they accepted that it would be a Bill which would be appropriate to be debated in the Seanad. They have now changed their mind on a major area on this issue and will not allow the Seanad to debate it properly. I find that most regrettable. As I have said, perhaps foolishly, I do not propose to put it to a vote because, unlike the Government Party, I take the issue seriously. I want it debated in a proper light. Therefore, I am not going to call a procedural vote. I find it a matter of great regret. I find it of particularly great regret given that the Minister who is here today is a former distinguished Member of this House. It is of regret that he should facilitate and participate in an attempt to muzzle debate in this House.
An Leas-Chathaoirleach
The question being proposed by Senator Ryan is that amendments Nos. 1 to 6, 18 to 21 and 29 to 31 should be re-examined or recommitted.
May I make a brief comment on that to support Senator Ryan? Given the fact that we only got this note fairly recently and it did not even give much time for consideration, I think it would be an awful pity for the quality of the debate and the whole approach to this legislation if it were not recommitted. I would ask the Government to reconsider it. We have a precedent in the Status of Children Bill. I believe that there has to be notice given on Committee Stage that this is going to happen. In this instance, there are a substantial number of amendments. It would be very creditable. I ask the Leader of the House to please reconsider the matter. It will take a little bit longer but in the long run it will be worthwhile.
A Leas-Chathaoirligh, I do not want to prolong this debate because you have made a ruling that there can be one speaker from both sides on this subject. I was the one who had amendments down in my name in this context. The Minister was generous enough to give me a commitment that he would reconsider the case I made and that he would come back on Report Stage. Because the list of amendments is so complicated the Government in their wisdom should really consider having them recommitted, so that we can have a debate on them. We want to be helpful. I have no doubt that all these sections the Minister has introduced generously in response to my Committee Stage contribution will get a precise debate and agreement on them. Could I ask the Leader of the House to reconsider his decision to oppose what Senator Ryan has suggested? That is coming from me as one who asked for them and was promised and now, hopefully, has got them.
No, in deference to your good self and your wise rulings previously I will refrain simply and say that I support what has been said.
I accept what has been said by the Members on the opposite side as being honest and that they feel they need further debate on this. However, there was a considerable debate on this matter on Second Stage and on Committee Stage. The changes which are being made here are as a result of the excellent debate that took place on both Second Stage and Committee Stage. I do not think it would be helpful to re-open Committee Stage for the purpose of dealing with these amendments. The amendments were circulated in time. They are at the request of Members of the House and in particular of Senator Ferris. Members of the House have had adequate time to read and assess what is in these amendments. I suggest that the debate go forward as proposed into Report Stage.
An Leas-Chathaoirleach
Could I ask Senator Ryan if the motion is withdrawn?
No.
An Leas-Chathaoirleach
The question is: "That the Bill be recommitted in respect of amendments Nos. 1 to 6, 18 to 21 and 29 to 31."
Question put and declared lost.
An Leas-Chathaoirleach
We have a number of groupings of amendments for the purpose of this Report Stage. Senators have already been circulated with them. The first group will be No. 1 with Nos. 2 to 6, Nos. 18 to 26 and Nos. 29 to 31. I take it everybody has a copy of that.
Government Amendment No. 1:
In page 3, line 14, after "section 2", to insert "and section 18 (3) (c)†".
Could I apologise to the House for the fact that the Minister for Justice, Deputy Collins, is engaged in the Dáil and is unable to be present? May I comment briefly on the suggestion by Senator Brendan Ryan that we were in some way trying to muzzle Senators in the context of this debate. The amendments which have been introduced by the Minister for Justice reflect very well on the contributions made in this House. Far from muzzling Members they indicate the seriousness with which the Minister accepted the contributions Senators made. It is regrettable, therefore, that as we begin Report Stage Members should feel in some way dissatisfied with what is normal procedures in the House. The amendments in that context are, strictly speaking, not new. They are ones which Senators in their consideration of this matter proposed. I want to deal with that matter first and briefly.
Amendment No. 1 is one of the amendments consequential on the inclusion of the new sections 17 to 23 relating to licensing. The point is purely technical. Amendment No. 1 amends the definition of "business" in section 1 (1) of the Bill. That definition provides that the expression "business" includes any activity carried on by a club". The purpose, briefly, is to ensure that provisions such as section 2 (1) (a), which exempts from control the supply of a video recording which is not "in the course or furtherance of a business", shall not operate so as to exempt supply in a club; this is necessary because of the activities of video clubs.
The definition in section 1 (1) is subject to two exceptions; that is to say, it does not apply to the two provisions of section 2 mentioned in the definition which relate to the business of manufacture and production of video recordings and which are therefore irrelevant to clubs. The new section 18 includes a provision in subsection (3) (c) which also relates to businesses in the ordinary sense and is also irrelevant to clubs. Amendment No. 1 therefore adds subsection (3) (c) of the new section 18 to the two exceptions in the definition of "business" in section 1 (1) of the Bill in its present form.
There are 18 amendments in this group. They deal with a licensing system for people selling video recordings or letting them on hire. During the debates on the Bill on 4 November and 19 November of last year many Senators spoke in favour of providing in the Bill for a system of licensing of people engaged in the sale or letting on hire of video recordings. They argued that such a system would be a very effective control on suppliers of video recordings and, accordingly, that provision for such a system should be built into the Bill. The Minister promised to give further consideration to this aspect of the video business, having regard to what had been said in the two debates. He has decided that a licensing system would be a valuable addition to the provisions of the Bill.
The amendments provide for seven new sections being added to the Bill. The remaining amendments in the group are consequential amendments arising from those new sections.
Amendment No. 18 provides for the insertion of a new section 17. This is the key addition to the Bill. It provides for the Official Censor issuing licences. There will be two types of licence, a wholesale licence provided for in subsection (1) and a retail licence provided for in subsection (2). The applicant for a licence will have to apply in writing and he will have to pay a fee which will be provided for in regulations to be made under the Bill. A licence will be for a period of 12 months — subsection (5).
In applying for a licence a person will have to supply certain information to the Official Censor. This information will include his tax reference number, if the censor so requires. It is intended that the censor should require the tax reference number to be supplied in order to ensure that the business of selling or letting on hire of video recordings shall be conducted properly in accordance with the tax laws. This is a matter that was asked for in the debate on 19 November last.
The new section 18, provided for in amendment No. 19, prohibits the sale or letting on hire of video recordings by unlicensed persons. Subsection (3) of the section provides for a number of exceptions. Apart from the exceptions, anybody selling or renting out video films without a licence will be guilty of an offence and on conviction will be liable to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, the same penalties as for selling recordings of uncertificated or prohibited video works.
The new section 19, provided for in amendment No. 20, creates an offence of possession for the purposes of sale or letting on hire by a person who does not have the necessary licence.
The new section 20, provided for by amendment No. 21, creates offences in relation to the giving of false information to the Official Censor in relation to an application for a licence, forgery of a document proporting to be a licence, or altering or using a licence with intent to deceive. Persons convicted of these offences will be liable to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, the same penalties as I have just mentioned under the new section 18.
A licence will have to be displayed in the premises in which video recordings are sold or let on hire. This is provided for in the new section 21, amendment No. 22. If the sale or letting takes place elsewhere than at premises the person selling or letting on hire will have to produce his licence on demand to any person who requests it. Conviction for an offence under this section can lead to a fine not exceeding £500.
The Official Censor will keep registers of wholesale and retail licences for the time being in force. Members of the public will be entitled to inspect the registers free of charge. The registers are provided for in the new section 22 which is being inserted by amendment No. 23. Section 22 also provides for the admisibility in legal proceedings of a certificate by the Censor, based on a register, as to whether a licence was or was not in force at the relevant time.
The new section 23, inserted by amendment No. 24, provides for forfeiture of licences and disqualification for holding a licence. These will arise where a person, in any period of five years, has been convicted twice of an offence mentioned in subsection (1) of the section or of an offence under the copyright laws in relation to a video recording.
As I mentioned earlier, the other amendments in this group are consequential on the new sections about which I have just spoken. They cover such things as definitions of "licence", "retail licence", "wholesale licence"— amendments Nos. 2, 3 and 5 — and some changes to the existing section 23 of the Bill as amended in Committee to enable the Minister to make regulations arising from the new sections being inserted in the Bill — amendments Nos. 29, 30 and 31.
I would now like to refer briefly to the thinking behind the scheme of licensing that is provided for in the amendments. The main objective is to establish an effective scheme of licensing. At the same time it is desirable to keep the licensing as simple as possible and to keep the interference with trade at the lowest possible level. I am satisfied that all these considerations are catered for in the amendments now proposed. Anybody will be entitled to get a licence provided he wills in the application form, pays the fee and is free of convictions under the Act or the copyright laws in relation to a video recording. One could have provided that trading could only take place from a premises but it was felt that this would be an unnecessary restriction on trade.
As I mentioned already, there is a specific requirement in relation to the tax reference number being supplied on the licence application form. This was a matter that was referred to on 19 November last. I am satisfied that this is a reasonable requirement for anybody seeking a licence as any such person should be registered with the Revenue Commissioners.
I have not attempted to deal with every aspect of the amendments in detail. A note was circulated with the amendments to explain the new sections in more detail and I hope that this has been of assistance to Members when reading the amendments. I will, of course, deal with any points that are brought up in the debate when replying on this group of amendments.
An Leas-Chathaoirleach
Before I call on Senator Ferris, may I remind Senators that on this group of amendments members will have the opportunity to speak once only.
I wish to thank the Minister of State for putting on record the dialogue that has taken place dealing with these types of amendments, which Members on all sides of the House had recommended to the Minister for Justice earlier. I am pleased that so much time and effort were put into it by the Department of Justice, an indication that the wisdom of having a licensing system was accepted in the Department.
Needless to say, once amendments such as these were accepted, other technical amendments came into place which are not a subject for debate. It is clear — I have very strong feelings on this matter, particularly since I listened to representations from the legitimate video industry who offered voluntarily to participate in the licensing system and were in favour of paying licensing fees and to help to administer it — that their overriding concern in this regard is that the Film Censor, as of now the holder of the register for licences, would have a total and complete record of everybody involved in the video business, whether they are the wholesale importers and sellers of the material or the retail outlets for selling, hiring or renting.
Now, for the first time, we will have a total record of everybody involved in the industry and if they are not licensed it must be presumed that they are illegitimate traders. It is as simple as that. It means that now, for the first time in this industry, we can tackle the problem of pirates and copiers which is rampant in Ireland and which is likely to put the legitimate industry out of business and to have the lowest standards in the type of material they make available to legitimate customers through the country.
For that reason I welcome with open arms the Government's acceptance of our suggestion. I am glad that the precise wording which is used and the penalties that will follow if these conditions are not complied with will be a disincentive the pirates, to get out of this business or to become legitimate. I am certain that the legitimate trade want to have more members legitimately involved in the sale and distribution of material. Most of this material is manufactured, filmed and produced in other countries and we have to depend initially on the good will and the good offices of the censorship procedure to protect ordinary family life from some of the material that is obviously available.
We also want to ensure that when video material has gained entry to this country legitimately it does not in itself become pirated and copied and distributed ad nauseam throughout the country. Many businesses were in danger of going out of business because pirate stations did not have regard for copyright. They had no regard for the quality of the material they distributed and they had no interest whatsoever in contributing to VAT or other systems of taxation, unlike the legitimate trade who are complying with all those regulations and trying to compete with unfair business practices throughout the country. For that reason, and as one of the people who was strongest in advocating that we should have this system, I welcome what the Minister of State said in this regard and the sections which have been included and grouped as amendments.
I, too, want to join with Senator Ferris in welcoming the list of new sections which the Minister for Justice has brought into this video recordings legislation. From a procedural point of view, the actions of the Minister for Justice listening attentively to the debates in Seanad Éireann on Second and Committee Stages and the detail which he has gone into in providing us with necessary documentation to explain his reasons for providing a licensing system in this regard are commendable. More Departments should follow the enlightened approach of the Minister to the various suggestions we have made.
As Senator Ferris pointed out, the danger to the entire video industry was that the black economy was growing enormously and very rapidly. It is estimated that about £3.5 million is being lost to the Exchequer each year in PRSI and VAT payments through the black economy. The fact that we will have the licensing system proposed in this Bill will mean that we will have total knowledge of who is actually involved in the trade at any given time. I ask the Minister to convey to the Minister for Industry and Commerce that the wholesale copying of legitimate video material could become a very dangerous problem in the near future because of the tightening up procedures we are adopting in this Bill.
I am aware that certain proscribed organisations are deriving an enormous amount of revenue from the pirating and copying of video material for sale. That is a tremendous source of revenue for a certain proscribed organisation here. That is hard evidence which was given to the Minister for Justice, and it will convince him of the need to exercise greater control over who is involved in the industry and who is undesirably involved in the black economy.
As the Minister of State is well aware, not far from his own constituency there are side effects from indiscriminate piracy of video material which are contributing to a certain social problem. The provision in this legislation that there will be a register in the Department of Justice so that we will know exactly whom to pinpoint if there is a problem in relation to the appalling indiscriminate use of pirated material is something this House should support. I can understand that there might be people on the other side who would suggest that we are introducing too much regulation into the administration of this legislation but, on balance, the reasons for the new sections are the common good, and the common good in this case rests firmly with registration and regulation in relation to the video industry. I support the amendments as grouped.
I have never been able to understand the purpose behind all these proposals for licensing video outlets. If somebody suggested that we should license bookshops the country would rise up in outrage at the idea that we should somehow try to decide who was or who was not fit to sell books, or if somebody tried to regulate any other form of domestic entertainment or domestic enjoyment in the way we are doing here. The reason for it is that it is a way of curbing the pirates in the video industry. As far as I can see the pirates already break the law in a number of ways, particularly the law about copyright.
If I am to believe what is supplied to me by the industry they break it on a grand scale. Senator Cassidy referred to an astronomical figure which he said was being made by people who were in breach of copyright. Can somebody explain to me in simple language why people who currently ignore the law completely are suddenly going to become law-abiding because we introduce another law? They do not care about the law. Some of those people quite clearly have been making a living out of supplying pornography to children, some out of supplying video nasties to children quite consciously and quite knowingly.
I appreciate that and I appreciate that the legitimate video industry is as opposed as everybody else to that, but why do we suddenly imagine that people who will sell filth to children, people who will break every copyright law, people who will tell lies about whether material is copyright or not, will become law-abiding because we introduce another law? That makes no sense to me.
On the other hand, I have noticed in areas where licences exist, a tendency after a time of licence holders to claim that the country now has enough licensees. For instance, the vintners trade tell us there should be no more licences for the retail sale of drink because the people who are currently in the trade cannot make a living out of it and more licences would make them worse off. Taxi drivers, for instance, are quite adamant that no more plates should be issued in Dublin, Cork or any other major city because more plates would put so many people on the market that nobody would be able to make a living out of it.
How long will it be before the video retailers are telling us that there are too many people licensed to deal in videos, or how long will it be before all those people are saying: "We must stop issuing more licences", and we will have the next campaign which will be to regulate the number of video outlets? What guarantee do I have that that will not happen? I am not saying for one second that it is the deliberate intention of the people who apparently have persuaded most politicians that this is a good idea. Wherever you have a licensing system you will inevitably have it followed by a demand for a restriction on the number of licences. You will have four video outlets in, for instance places the size of my home town; somebody will want to open four more and there will begin to be a chorus of complaint that too many licences will underline the trade of everybody.
It is one of the intriguing things about people who believe in a free market system that they tend to believe it passionately until they have got a stake in it themselves and then they begin to discover the demerits of free competition because it affects their own vested interests. It is not necessarily the motivation now, and because of that I do not think it will make a scrap of difference to copyright breaches or pirating. It will not make a scrap of difference to whether these people continue to attempt to sell the appalling material that this Bill intends to control; whatever it may do in practice, that is what it intends to do. It will not make a scrap of difference because those people have ignored the law all their lives and because I know that the Garda are already overstretched. Because of our lack of resources we do not enforce our pollution regulations, we do not enforce our traffic regulations, we do not enforce our juvenile drinking regulations — we do not enforce the regulations and the law because we do not have the resources or, in some cases, I suspect the will. To pretend that we are going to do this is a bit of a joke.
I find the whole thing meaningless. I do not understand what is behind it. I must suspect that some people in the video industry, not all but some, see it as a step towards controlling the number of video outlets in the interests of the video industry. I remember the Minister talking on Second Stage about the lobby of a vested interest. At that stage apparently he was less than enthusiastic about it. He has obviously changed his mind. I regret that. I still do not think this is anything of any significance and I will be opposing it.
I welcome the licensing system for the sale, letting and hire of video recording equipment. These are very well worthwhile amendments to the Video Recordings Bill. They will give more control. Could the Minister of State tell me where do people apply for this licence? Is it to the Department of Justice or elsewhere? I welcome the amendments. Our thanks are due to Senator Ferris who asked to have these amendments included, and to the Minister for Justice who was very quick to take up the suggestion because he thought it very fit that those amendments should be included in the Bill. I am delighted they are included.
I welcome these amendments. I am very pleased that there has been such a change in the approach to the Bill from the time the Minister introduced it on Second Stage. It is important that we should have these outlets licensed. I can understand Senator Ryan's point of view on it. Some of the retailers I spoke to in the interim expressed very strongly the view that they did not want any more restrictions; they did not want more regulations and more rules. They are small businessmen and life is progressively being made more difficult by rules and regulations.
One of the things they were worried about was the fee that will be charged and the fact that it will be reviewed and renewed each year. I am assured that this will be only a nominal charge and not something that will be a great pressure on them. I sympathise with what Senator Ryan said regarding the enforcement of legislation. We have classic examples of legislation at present in existence not being enforced. I do not think that is good reason for not incorporating in legislation what is necessary and what we see as being required at a given time.
At the moment any retailer, any video shop, can stock any type of videos and they can distribute them, pirate or sell them to young people and children. We have clear evidence that there are unsuitable and undesirable videos available. There is nothing at present that we can do about that. This is where the licensing factor will come in. If there are reports — and this is an area in which I feel quite sure there will be complaints and reports — of people abusing in this area or contravening the regulations, there will be a tool which can be used. The licence can be withdrawn or the retailers or business persons can be seriously affected if they infringe.
I welcome the idea of licences but, like Senator Brendan Ryan, I have reservations about the licence and I hope that the regulations will not be used by vested interests to control sales. In that case, the Bill would not serve the purpose for which it was intended.
There is a need to control these retail outlets. I would have thought we might have some kind of a body representing parents who would oversee such retail outlets and perhaps keep control. I do not know how an inspector from any Department could monitor them. Then we have the problem of some of these places having under-the-counter tapes. This is a problem I would have thought some kind of an independent body representing parents might supervise and ensure that some of these retail outlets do not sell these videos which are detrimental to the well being of young people.
Perhaps that more than anything would serve the purpose rather than inspectors from the Department. Such a body could decide if there were some people selling undesirable videos and they could notify the Department of them. To implement the regulations in respect of this would be a very difficult task for the Department and would call for enormous manpower. There is a considerable number of these retail outlets now and it would be a gargantuan task for the Department to undertake full supervision.
I would like to hear the Minister tell us how he can implement the regulations to ensure that there will be proper control over them and monitoring of them which is very important. There will always be those undesirables who will run the risk of having them under the counter.
I oppose the Bill on principle, and have consistently because I am against censorship. It is perfectly clear to me — and I attempted to demonstrate that in my Second Stage speech — that the history of censorship in this country is a particularly unfortunate one. It has very little practical impact except to make us appear ludicrous. During the debate, no convincing evidence was adduced of a causal relationship between crime, corruption and videos. There was a bewildering diversity of information produced. Much of the work of expert commissions both in Europe and the United States has been produced, the preponderance of which comes down against the existence of a causal relationship between this kind of material and crime. That is a fact. On principle I oppose the Bill.
In considering the various sections and amendments, Senator Brendan Ryan has conferred on the House considerable benefit by revealing to us one possible, though perhaps unintentional, impact of this proposed licensing system, that is, the creation of a situation under which vested interests may be tempted to corner a market in licences or to use the licensing system to their own commercial advantage. This may not have been the intention, but it could very well subsequently prove to be a temptation.
Finally, I am more and more concerned when I hear contributions such as that of Senator O'Connell who is going to add to the lack of expertise and the lack of capacity to discriminate by suggesting that parents, and representatives of parents should be now given some kind of specific function with regard to licensing. Where exactly is all this nonsense going to end? I sincerely hope the Minister will treat that suggestion with the contempt it deserves.
I thank Senators for their contributions on these amendments. The introduction of these amendments covering the licensing procedures will ensure that the pirates, the people who are engaged in illicit business of this kind, can be put out of business. The Senator was worried about copyright. The Minister for Industry and Commerce is at present contemplating the introduction of new legislation in that area and the widest possible consultations will take place in relation to making changes.
Senator Brendan Ryan is sitting back. He is prone, on occasion, to suggest that there is a simple solution to very difficult problems. I have had a long association with him and for him to suggest that the introduction of licences would lead to people who are engaged in that business wanting to corner the market and to restrict new entrants is an argument which can be made in a variety of areas. The association will not make those decisions. They will be made by responsible people who will take the totality of the situation into account. There may be instances where it would be right not to extend the facility for new members. That has happened in the past. One individual could see it as a restriction to his rights.
To say we should not have a licensing system is like saying we should not have laws because people will still be murdered, people will still be raped, and there will still be offences, therefore there is no point in having regulations. People agree these crimes will not stop, but it is our business to make whatever changes we can to make life better for all our people and to ensure that the incitement to crime through video nasties is not available to vulnerable people who will be encouraged to engage in illicit activities. It is not going to be very difficult to trace people who make these films here and the fairly significant fines of up to £1,000, plus a year imprisonment, plus a ban on being engaged in that business for four or five years should at least be viewed as a very significant change in the existing situation. We do not envisage a whole plethora of cumbersome and delaying practices. We are trying to get a balance here.
I think we have found a balance and there is a section in this House in favour of what we are doing today. I am sorry that we were not able to accommodate the diverse views expressed.
It is a matter of great regret that we cannot speak again on this amendment because it deserves to be pursued further.
Amendment put.
Senators
Vótáil.
An Leas-Chathaoirleach
The question is: "That the amendment be made." On that question a division has been challenged. Will those Senators calling for a division please rise in their places?
Senators B. Ryan, Norris, J. O'Toole, Ross and Robb stood.
An Leas-Chathaoirleach
The division will now proceed.
The Seanad divided: Tá, 34
4; Níl, 4.
Tá
- Bohan, Edward Joseph.
- Bradford, Paul.
- Cassidy, Donie.
- Cregan, Denis.
- Daly, Jack.
- Doherty, Michael.
- Ferris, Michael.
- Fitzgerald, Tom.
- Fitzsimons, Jack.
- Friel, Brian.
- Hanafin, Des.
- Harte, John.
- Haughey, Seán F.
- Hillery, Brian.
- Hogan, Philip.
- Kelleher, Peter.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Donal.
- McCormack, Padraic.
- McEllistrim, Tom.
- McGowan, Patrick.
- McKenna, Tony.
- McMahon, Larry.
- Mooney, Paschal.
- Mullooly, Brian.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- O'Connell, John.
- Ó'Conchubhair, Nioclás.
- O'Shea, Brian.
- O'Toole, Martin J.
- Reynolds, Gerry.
- Ryan, William.
Níl
- Norris, David.
- O'Toole, Joe.
- Ross, Shane P.N.
- Ryan, Brendan.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators B. Ryan and Norris.
Amendment declared carried.
Government amendment No. 2:
In page 3, between lines 23 and 24, to insert the following:
"‘licence' means a wholesale licence or a retail licence;".
Amendment agreed to.
Government amendment No. 3:
In page 3, after line 31, to insert the following:
"‘retail licence' has the meaning assigned to it by section 17 (2)† of this Act;".
Amendment agreed to.
Government amendment No. 4:
In page 4, line 14, to delete "picture." and to substitute "picture;".
Amendment agreed to.
Government amendment No. 5:
In page 4, between lines 14 and 15, to insert the following:
"‘wholesale licence,' has the meaning assigned to it by section 17 (1)† of this Act.".
Amendment agreed to.
Government amendment No. 6:
In page 4, between lines 23 and 24, to insert the following:
"(4) References in this Act to selling or to letting on hire include references to agreeing or offering to sell or to let on hire and to inviting offers to buy or to take on hire.".
Amendment agreed to.
I move amendment No. 7:
In page 5, line 34, to delete paragraph (c).
I introduced this amendment on Committee Stage. The amendment has to do with distinguishing between the moral righteousness which characterises a debate like this in which we are regulating ourselves and that the fact that anybody else is involved, and we are prepared to make a fast buck any way we can. This amendment has to do with what is called the concept of supplying a video. Basically, the intent of this Bill is to regulate the supply of videos. Everybody, except perhaps Senator Norris, and I am not sure that I disagree with him that much, agrees there has to be some regulation of the supply of videos. I am referring in particular to section 2 (3) (c). The Bill, as it stands, proposes that we would not attempt in any way to regulate videos if they are for supply outside the State. I find it quite peculiar that we can decide we want a whole set of important moral principles, a whole set of important considerations about what video nasties can do to people — I have heard lengthy fulminations about the damage that pornography can do — but, apparently as long as we can make a buck here and the product is for sale outside the country we do not care. I find that sort of moral duplicity quite revolting — the idea that somebody can make a video here which would involve the abuse of children, multilation of human beings or animals, gross obscenity and gross pornography, and because they say they will not supply it in Ireland we will not stop them.
It can be said that most of those sort of productions would be of a kind which would affect other laws, but I am not entirely sure that is true, particularly in the area of the classic video nasties which, in the words of the Bill itself, "depict acts of gross violence or cruelty". They can be simulated very effectively for insertion into a video. It involves no breach of the law, it is simply a simulation of gross violence or cruelty to an animal. It does not necessarily involve horrible things like snuff movies. What we are saying is that if people want to do that and make a lot of money out of it, provided they decide to preserve our saintly little Twenty-Six Counties from the moral consequences of that action it is all right. Such an extraordinary position of moral duplicity I have rarely seen in my life.
I was much more circumspect on this on Committee Stage because I thought the fact that we were trying to strike some sort of a position about a concept of morality, and having struck accord with the Minister, there would be a response on Report Stage. At this stage I have no such compunction about saying precisely what I feel, which is what I have just done and I want to elaborate a little more.
There seems to be an acceptance in this country that as long as the product is not for use here we can apply different standards. We have seen the spectacle of a factory being opened in County Wicklow producing a product which will damage the health of vast numbers of people, but they are only poor blacks and, therefore, we do not need to apply the same standards. We now have the same idea about videos. It does not really matter what is in them as long as we are not selling them at home. I find the whole thing quite reprehensible.
I am not saying for one second that we would have to impose a particularly Irish set of moral principles on them, but the Bill, with some amendments here and there, would not be excessively regulated. I believe that, characteristically in Irish politics, there is a way of avoiding a hard issue by saying we will preserve ourselves at home but the devil will take the rest of them. That is not the sort of business we should be encouraging. I do not think we should become a haven for pornographers simply because we have not got the guts to say we do not believe those sort of videos are right in principle, and that we are not going to allow them to make those films here or to make money out of them. The idea that we exempt material simply because it is for supply outside the State should be taken from the Bill, and we should stand up for the values which many more Members than I claim to subscribe to. I would be regarded on the left in most of these issues, but there is about 60 per cent to 80 per cent of this House who probably think this Bill does not go far enough. I invite those people at least to be consistent about their values and to support this amendment. It is hardly contentious and I think it deserves to be passed.
I second the amendment in order to be consistent, although I do not share Senator Ryan's surprise that we should be happy to export this material. After all, we already export many other things such as abortion and divorce. One of our principal exports is our hypocrisy. There is nothing inconsistent whatsoever about this Bill. I think the whole Bill is rotten. It seems to leave open a doorway for exploitation. I do not know if that is what was intended, but I do know that quite a substantial amount of the energies behind this Bill are orchestrated by a very strong commercial lobby. That has been clear from day one. I would certainly support what Senator Ryan has said with regard to the analogy between this matter and the scandalous situation with regard to the factory in County Wicklow producing mercury soap. I already drew another Minister's attention to the inconsistencies in the Government's attitude in complaining, quite rightly, about the lack of international responsibility felt by Great Britain with regard to Sellafield and Trawsfynydd but, at the same time, feeling no international responsibility with regard to mercury soap. I hope my distinguished colleague, Senator Ryan, will find my contribution consistent in supporting the amendment.
I support the two Senators. I find it highly distasteful that we should be trying to prohibit making certain types of video in this country if we are prepared to export them to other countries. To qualify what Senator Norris has said and, indeed, to paraphrase something Deputy Michael Higgins said, we have tried to create an abortion free zone, a divorce free zone and we are now going to have a nasty free zone, but let the devil take himself elsewhere and nobody is going to worry. I believe that it is most important that this amendment should be passed. It gives me pleasure to support what the two previous Senators said.
I accept the concern of the Senators who feel that this amendment should be made. We are talking about a word here. We are not talking about the qualify of what is made in the country, whether this is good, bad or indifferent, or fit to be exported or sent to the unsuspecting masses in Great Britain, South America, Nicaragua and elsewhere. We are talking about the word "supply".
Under section 1, "supply" means supply in any manner, whether or not for reward and, therefore, imcludes supply by way of sale, letting on hire, exchange or loan, and cognate words shall be construed accordingly. What I understand the section to mean is that the word "supply", as it is understood in all the sections, does not apply to goods which are exported. They are not being sold outside the State for distribution, viewing or anything else. They are just being exported.
My colleagues are concerned that we are so moralistic in this country that we are prepared to stop the sale of videos here but we would like to manufacture them and sell them elsewhere. My understanding is that this is only a definition for exclude supplying outside the State from all the other sections. It has nothing to do with the quality of the film because if it had all the arguments made by my learned colleagues would be valid. Why should we pontificate at home and ignore the consequences of somebody being able to set up here and prepare and manufacture video nasties and send them off elsewhere and forget about the implications? If that is the correct interpretation from the Minister's point of view, my colleagues have a point. As I understand the section 2 it excludes the word "supply" outside of the State. It says:
(3) For the purposes of subsection (1) (b) of this section, a supply is a supply to the public unless it is——
(a) a supply to a person who, in the course of a business, makes video works or supplies video recordings,
(b) an exempted supply by virtue of paragraph (a), (c), (d), (e), (f) or (g) of subsection (1) of this section.
It excludes the supply outside the State from that reference. I would like clarification because my colleagues' points are valid if their worries are well founded. I think they are unfounded but I will await the Minister's interpretation. We must remind ourselves also that Britain, in their wisdom, have already controlled the video industry in a way in which we are now, at the eleventh hour, trying to do — perhaps not even as efficiently as the British have done. By the time the British realised they needed to do this quite a lot of damage had been done. Because we had no control here people suffered from some of the uncontrolled videos which came from elsewhere. Most of the videos which are available in this country are manufactured, presented and produced elsewhere. It is appropriate that we should control their importation into our country. I am quite sure other countries are capable of looking after themselves. I want clarification of the word "supply". Does it just exempt supply from us and not deal with quality?
Paragraph 23 of the Explanatory and Financial Memorandum, read with paragraph 15, explains the purpose of paragraph (c) of section 2 (3); which is the paragraph the amendment proposes to delete. Section 2 (3), in fact, defines supply to the public only for the purpose of section 2 (1) (b) (ii) which is the provision where supply to the public is referred to. The matter is rather technical, so I think I should explain it a little further, because I feel that the amendment may be the result of a misunderstanding.
Section 2 (1) (b) is necessary in order to exempt from control under the Bill certain cases of supply that inevitably take place in the course of manufacturing and producing video recordings. It should be noted that the Bill will apply to each individual video recording — that is to say, each disc or tape. Therefore, every time an employee in the video producing business hands a video recording to a colleague in the course of his work he will be supplying it to him. Therefore, if section 2 (1) (b) were not in the Bill, unless the supply of the recording, or the work, were exempt on some other ground, it would be necessary to get the Official Censor's certificate for every single such supply inside the business. This would be so even if, say, the recording were going to be kept in the office or destroyed.
Stated shortly, the object of section 2 (1) (b) is to avoid introducing the Censor's control into the ordinary operations involved in producing a video recording. The test provided for is, again stated shortly, whether the recording is eventually to be supplied to the public; and surely this is the right test, given the purpose of the Bill. Section 2 (3) (c) merely provides that one of the cases of supply that is not to count as an eventual supply to the public should be the case where the eventual supply is to be a supply outside the State.
The amendment must be considered in the context of the purpose of the Bill. The purpose of the Bill is to control and regulate the supply and importation of video recordings. The intention is that objectionable video recordings should not be available on hire or on sale to members of the public. In making this provision we are concerned with the video films which will be available to the Irish public. We are not concerned with the standards that should obtain for video recordings on sale in other countries. That is a matter for those countries. Any criteria they lay down in this field are a matter for them and for their legislation. It is a matter for our legislation to lay down the standards in this regard. Even if we wanted to do that in what way could we enforce it in another jurisdiction?
As material which will be available in other countries is a matter for the legislation of those countries it would be an unnecessary and an unwarranted control to require that material which would be produced in Ireland for sale or hire exclusively in other countries should be subject to our monitoring system. Such monitoring of that material would not result in the video films in question being cleared for supply in those countries. To take one example: suppose a video recording is being made here only for export to England. If it gets to England, it will require a classification certificate from the British authorities, who will have to consider it and may reject it altogether, or may classify it as suitable for general viewing, or as suitable for viewing by persons over a certain age, or may say it may be supplied only in licensed sex shops. The fact that the Irish Censor might have given a supply certificate under section 3 of the Bill would be of no help to the British authorities.
Senator Norris is obviously a man of considerable mental latitude in his interpretation of this when we can get to mercury soap and abortion in the context of this Bill.
It is the same principle.
What we are saying here is that we are in no position to control what will happen in other jurisdictions. Let us face this in a practical way. The bulk of the material which is made is not objectionable. What we are talking about are areas where we have an objection because of the fears of what it might involve. We provide our own regulations. We do our own business in our own jurisdiction and we cannot control events and developments thereafter in other jurisdictions.
What about videos to South Africa? The Minister chose a very easy example with England and sex shops.
I listened with considerable interest — this is what the Minister usually says when he is rejecting an amendment — and extremely carefully to what the Minister said. He actually said that it would be perfectly feasible for somebody to make video recordings in this country of such a quality that they would only be acceptable in Britain for supply to sex shops and that there is nothing in this Bill to prevent it. That is the example he chose. I do not want to misrepresent the Minister. Apart from anything else he is a particularly good friend of mine and I will not fall out with a good friend of mine over any matter of policy.
I will not misrepresent the Minister and, if I misunderstand him, I will quite happily accept a correction which is acceptable under Standing Orders. I understood the Minister to say it was not for us to regulate other countries. He is quite right — mind you it is something that we try to do from time to time. Morally, if not in any other way, we tend to look down our noses at other countries. The Minister is playing with a little technicality. He is saying this Bill is about regulating the supply of video recordings. He is quite wrong. This Bill is about regulating video recordings and the way we have chosen to do it in this country is by regulating their supply. There is a difference.
The problem was the quality of video recordings which are available on the Irish market. The problem was not how they were distributed or how they were supplied. The problem is that there is a core group of videos which are described as video nasties and which are regarded as morally repulsive by most people. The problem was how do we prevent these things coming on the market and the device chosen was to set up this process of giving a supply certificate. The problem is the quality of the videos themselves. The problem is not a supply regulation control but rather the inherent foulness of some of these videos. What we are actually saying now is that, even though we acknowledge that the problem is the foulness of the videos, we will not accept any responsibility for preventing them being supplied anywhere else. In other words, it is the usual classical Irish self-consciousness about ourselves, our values and our principles. Far be it for me to be a defender of traditional values. I do not know what they mean so I could never defend them.
If we come to a conclusion that certain things are so inherently offensive that we will not allow them to be supplied to Irish people, we could at least attempt to prevent them being supplied to anybody else. If other countries are more liberal and more tolerant — I do not like to use the word liberal — more permissive and more easy-going about some things than we are, let them make them in their own country. It is a perfectly reasonable thing to say, that if anybody wants to make a video recording in this country, it ought to meet the minimalist standards that are set by us for this country. This Bill is too restrictive and I have put down amendments to that effect.
That does not get away from the fact that I believe that we as a people, if we decide to do things, should at least be consistent. What we are saying now is that we have one standard for ourselves but for the great mass of pagans out there who are different from us including, may I say, the citizens of Northern Ireland because they are outside the State, that what is appropriate for us good Catholics down here is not necessarily inappropriate for those, bad Catholics or Protestants across an artificial border.
I find the whole thing quite extraordinary. I find no reason to withdraw the amendment. It would be perfectly simple to remove it and leave people who want to supply videos outside the State accountable to us for a minimum standard of quality in those videos.
I would like to say to Senator Brendan Ryan that if we take the analogy in the Bill it is possible to make any kind of a film in this country and the only thing that the Censorship Board will try to do is to dictate what can be presented to the Irish people in public. You can write any kind of a book you want to in this country but you may not be able to have it presented to the Irish public. If I could give a further example, as an industrialist you may consider that a certain item or product would not sell in Ireland but there may well be a market for it in another part of the world.
Mercury soap.
You can make it here but it may not be sold here. We try to influence what is presented to the public in films, books or videos. The actual making of them and their distribution to other parts of the world is not something that we can influence because even if we were to enshrine in this legislation regulations which would set out to do that, there is no way we could achieve it; there is no way we would have the legal authority to implement it; there is no way we would have the facilities and personnel to traipse around the world and follow it in one way or another. So to bring a friend of mine back to other principles to which he referred if you are going to be liberal and broad-minded about these matters, you should only try to do what you are sure you can do and if you enshrine something in law which you are not able to enforce, you are obviously being slightly hypocritical and there is no way that we are anxious to go down that road in this Bill.
Since the Minister has been allowed to reply I will have to ask for the Chair's indulgence. I understood this was Report Stage and that one could speak only once. I insist on the right to have the final say on this.
I am sorry if I have broken any rules but it was out of courtesy to the Senator that I replied.
I invited the Minister to interrupt me but I do insist on my right, as the proposer of the amendment, to have the final say on the amendment. It is my privilege as the mover of the amendment on this Stage so I must insist.
The Minister draws these peculiar analogies but the position nevertheless is that we will have one standard for ourselves and one standard for other people. You can rest assured that inside the next 12 months we will have fulminations by Irish politicians, perhaps even by Members of this House about the obnoxious people in other countries who are producing those foul videos and how dare they make them and try to foist them on the decent God fearing Irish people. We will accuse people in other countries of being appalling and ask why do they not do something about it; why do not these awful pagan countries stop it all happening; why do they not prevent these awful people corrupting our youth and our nation? At the same time and in the same breath we go ahead and say: "Well, if they want to make them here we will facilitate them because there is a few bob in it."
There are two standards. If we believe a standard is worth enforcing, we should enforce it universally. It is a very healthy thing to suggest that if we are to be involved in the export of either videos or films made in this country, they should be videos or films that we feel happy about. What I would feel happy about is probably a good deal more permissive than what many Members of this House would feel happy about. That is a separate issue but we as a people decide on standards and not decide that they suddenly end because you happen to go from Dundalk to Newry. The same standard should apply on one side of the Border as the other. I do not believe there is some chasm of difference between ourselves and our nearest neighbours in either moral standards or moral rectitude that we can strike a pose and say we are somehow more moral and have a better standard than they have. I do not think there is a scrap of evidence to suggest that we as a people are one bit more moral than any other country in Europe and I think we should enforce our standards and they would not be much different from those of anybody else.
An Leas-Chathaoirleach
The Question is: "That the words proposed to be deleted stand part of the Bill."
Question put.
The Seanad divided: Tá, 24; Níl, 9.
Tá
- Bohan, Edward Joseph.
- Cassidy, Donie.
- Doherty, Michael.
- Fallon, Seán.
- Fitzgerald, Tom.
- Fitzsimons, Jack.
- Haughey, Seán F.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- Hillery, Brian.
- Hussey, Thomas.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- McEllistrim, Tom.
- McGowan, Patrick.
- O'Connell, John.
- Ó Conchubhair, Nioclás.
- O'Toole, Martin J.
- Ryan, William.
- Wallace, Mary.
Níl
- Ferris, Michael.
- Friel, Brian.
- Harte, John.
- Norris, David.
- O'Shea, Brian.
- O'Toole, Joe.
- Robb, John D. A.
- Ross, Shane P. N.
- Ryan, Brendan.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators B. Ryan and Norris.
Question declared carried.
Amendment declared lost.
An Leas-Chathaoirleach
Amendments Nos. 8, 9, 10, 13, 14 and 15 form a group and may be discussed together.
Government amendment No. 8:
In page 5, line 44, after "detection," to insert "or".
This group of amendments deals with the grounds on which the Official Censor may refuse a supply certificate in relation to a video work under section 3 or make a prohibition order under section 6. The purpose of the Government amendments is to remove one of these grounds from both section 3 and section 6 as currently drafted. The ground to be removed is that relating to stirring up hatred against any group on account of their race, nationality or religion. The removal of this is being proposed because it is felt that incitement to hatred could be dealt with more appropriately in another Bill.
I wish to refer to amendment No. 10 proposed by Senators Ryan and Norris, which is one of the amendments in this group. The effect of this amendment would be that the Official Censor could decide that a particular video work was unfit for viewing because the viewing of it would be likely to stir up hatred against any group of persons "on account of their sexual orientation", as well as on account of their race, nationality or religion. Senator Norris referred, in this connection, to the possibility of more general legislation regarding incitement to hatred. Such legislation has been contemplated in the context of a provision in the United Nations Covenant on Civil and Political Rights which requires the prohibition of incitement to national, racial or religious hatred.
I cannot accept the statement made by Senator Norris on Committee Stage, at column 1712 volume 117 of the Official Report, that "almost all the other States in Europe...as a matter of course now accept and write in the phrase ‘or sexual orientation' in these clauses." I agree however that, as Senator Norris suggested, at column 1711, it may not be appropriate to deal with incitement to hatred legislation in a piecemeal manner. I am now proposing, accordingly, that the reference to incitement to hatred against specific groups of persons should be deleted from section 3 of the Bill, so that it can be considered more fully in the context of proposals for legislation to prohibit incitement to hatred against particular groups of persons which is now contemplated. The same remarks apply to amendment No. 15.
I am really dumbfounded that a Government in this country would contemplate — even for six months, not to mention the number of years it will take to produce incitement to hatred legislation — signalling that anybody who wanted to make racist videos in this country which would foment anti-Semitism, anti-Black sentiments, anti-Irish sentiments, and religious hatred could do so. For instance, the Rev. Ian Paisley, wearing his fanatical religious hat, would be able to come down here to make some of his productions which are religiously bigoted and prejudiced. It would be okay for him to make them down here, whereas he would not be able to do so in Northern Ireland because such matters are prohibited there. We are giving a licence in the video area which was already given in the written area. This country is now known as a safe place to produce crypto-Nazi propaganda. It is the only country in Europe that does not have incitement to hatred legislation in the area of race. We are now giving a signal to people who have been doing this in the area of printed matter to carry on and do it in the area of visual matter as well, I find it quite astonishing.
I was in favour of this provision. I think incitement to hatred on the grounds of nationality, race or religion is not a matter for debate. It is a matter we should end once and for all. There is no civil libertarian principle involved. There is no principle of civil liberty which says that people have a right to incite hatred on the grounds of race, religion or nationality. I must say the idea that at some stage in the undefined vague future we might get generalised anti-incitement legislation seems to be nothing more than a joke. A succession of Governments have promised this and a succession of Governments have explained that they are studying it. I have never yet heard from anybody in any Government why it is so difficult to introduce anti-incitement to hatred legislation in this country.
It is simply in my view another indication of government by inertia. Because people are not creating an enormous fuss about it, it will not be done. I have no reason to believe that any incitement to hatred legislation exists anywhere other than in the imaginations, of this Minister of State and the Minister for Justice. It is something that they have thought about and are considering but I know that considering something can mean anything from "about to do it" to "that I might do it next year." It is not a particularly well defined phrase.
What we are now going to say to someone who wants to accept the signal is that we in Ireland do not mind if they make anti-Semitic videos; that we do not mind if they make anti-Catholic, anti-Protestant or anti-Jehovah's Witnesses' videos and that we do not mind if they make anti-Irish videos. It does not really matter to us as we are tolerant and broad-minded about these things, that this is not an important matter. Sex, of course, must be regulated and any depiction of sex must be regulated and controlled, but nasty things like racism and racial hatred are things that can wait until next year, the next decade or perhaps the next century.
I find these Government amendments profoundly objectionable. One of the merits of this Bill was that we intended to regulate this area but instead we now propose to get rid of it. I know only too well the impeccable liberal sentiments of the Minister of State sitting in front of me to believe that he actually believes what he has just read out. Unfortunately, he is stuck with it. He is doing his job. I will not blame him for it and I am absolutely certain that they are not his own views. I regret the fact that he has been stuck with the Job. May I say also that I find the pussyfooting and the juxtaposition of comments from Senator Norris on the question of sexual orientation quite revolting in the light of some of the things we have seen in this city where people have been beaten to death by people who describe themselves proudly as queer-bashers.
That we can somehow contemplate not prohibiting incitement to hatred against people on the grounds of sexual orientation, given some of the literature that has been produced on the question of AIDS and given the wrath of God mentality that many people choose to use to justify their prejudices on the question of AIDS, shows yet again our unwillingness to confront issues when they stare us straight in the eye. Presumably, like everything else, we will find some way of exporting this problem to England. I find the Government amendments quite revolting, totally unexpected and without any rational justification. I do not understand what they are at and I do not believe that it is simply to do with later legislation. I have no idea what they are at and object profoundly to the Government's amendments.
While Senator Ryan and I rarely agree, we are in agreement in relation to the Minister's liberal views on this matter. Perhaps he wears his liberal hat in this House but in north Tipperary he would not get away with being too liberal for too long and I am sure Senator Ryan will appreciate that fact. In any tolerant and civilised society, racial hatred should be frowned upon. As has happened far too often in our legislative process we have not heeded minority rights and I would be reluctant to wait for any legislation in the pipeline in regard to incitement to hatred to delete the lines from the legislation we are now discussing. As Senator Ryan pointed out, far too often we have been promised by various Government Departments that legislation was imminent. In fact, Senator Ryan has had much experience of this, particularly in relation to the Housing (Homeless Persons) Bill. I could not subscribe to the deletion of these lines from the legislation and consequently I have to support the remarks made by Senator Ryan and indicate that we will be voting against their deletion if it is put to a vote.
I support in full what Senator Ryan has proposed. It would be a very dangerous development if we were to delete the section under consideration because, as we all know, there is a dark, lurid and negative side to everyone's personality, both individually and collectively, and there is, when under threat, a tendency to try to deal with our negative feelings by making other groups of race, nationality, religion or, indeed, sexual orientation the butt of our frustrations. There are many examples in this century — the anti-Semitism at the beginning of the century in France, the anti-Semitism in Germany and the anti-Semitism in the Soviet Union. Nearer home there are many examples of racism. Anti-coloured racism is very prevalent in England today and one wonders indeed if the same proportion of overseas people lived among us and competed for our jobs whether we would be as liberal as we appear to be at present in this respect.
Certainly we have no great record when it comes to religious discrimination either in attitude or in practice. It is true to say that there are very few Irishmen who have not suffered from being considered as second class citizens or, as I have said before in this House, as second class partners at the time of the intermarriage of various Irish traditions. Given our own past, we should be very wary about removing protections against the sort of racialistic, nationalistic and religious prejudices which are inherent in the very nature of the human state. It is most important that we accept the amendment which has been proposed by Senators Brendan Ryan and David Norris which reads as follows:
In page 6, subsection (1) (a) (ii), line 2, after "religion" to insert "or sexual orientation".
I can speak as a person who has had difficulty, perhaps because of education and association, in having empathy with the homosexual state but who, nevertheless, seeks to learn from it a bit more about those of us who feel that we are orientated in the heterosexual fashion. This came home to me most acutely when a very dear friend of mine was dying in the special unit of St. Mary's Hospital from AIDS, when the subject was barely known in this country, some five or six year ago. As I contemplate the implications of what is at present under discussion to consider the attempt that is being made to isolate the homosexual community because of the scourge of AIDS in a very unChristian manner, to say the least, my feelings are that we have got to protect ourselves, that is, the heterosexual majority has got to protect itself, from highly destructive social attitudes whereby we offload our fears and frustrations onto the homosexual community. This would have a deplorable effect on our society as a whole.
It is for these reasons, therefore, that I implore the Minister of State — and I agree with what other Senators said about our friend who was in this House with us for a long time — to consider very strongly the need to retain that section which it is now proposed should be deleted and to add to it the amendment which has been put down in the names of Senators Brendan Ryan and David Norris.
My colleague, Senator Brendan Ryan, has a difficulty. He says he does not know what the Minister is at. I know exactly what the Minister is at. I know exactly what the Government are at. They are running terrified of the entire thing. They are junking this entire section which I indicated at the beginning in any case is a pious and hypocritical fraud. They are accepting part of my argument, but only part, in order to get rid of the entire thing because they are terrified of the sexual orientation clause. I know exactly what they are at and I am not surprised because I am used to it. I am used to discrimination. I am used to bigotry and I am used to the kind of contemptuous treatment that is clearly implicit in the Government's attitude and I have signalled this very carefully in what I have said.
I pointed out, when this was introduced, that there was no legal problem for the Government in introducing a measure outlawing incitement to hatred on the basis of sexual orientation. This was made quite clear in the Government's own defence against my case taken against the Government of Ireland in the European Court of Human Rights in Strasburg where the Government themselves drew what I must admit was a fine Jesuitical distinction in that they reserved the right to discriminate on the basis of sexual practice but would never dream of doing anything so nasty, reprehensible and inhuman as discriminating against people on the grounds of sexual orientation. There they are hoist by their own petard.
There is no contradiction whatever available to the Government as an excuse for not introducing this legislation. They can do it with a perfectly clear conscience even according to their own words. I also indicated to the Minister at that stage that, if this was not accepted, I would regard it as being clear evidence that the Government approved either tacitly or positively and actively, but at the very least tacitly of discrimination amounting to the incitement of violence against persons on the basis of their sexual orientation. I can only take from the disgraceful statement of the Minister of State that this is precisely their attitude and I will bear this in mind when I hear other Ministers speaking about discrimination in the North of Ireland. I will remind them again what it feels like to be discriminated against in this Republic of Ireland. I know that as bitterly and as deeply as any Roman Catholic in the North of Ireland. I honour and I am grateful to my colleagues on nearly all sides of the House for supporting me on this very important amendment which has been put down in the names of Senator Ryan and myself. I would also like to indicate to the Minister that I will be advising my legal representatives of the attitude on the part of the Government and I will be requiring them to make use of this in the case I will be taking to Strasburg in six weeks to two months time.
I feel the Government have lost an opportunity to demonstrate some goodwill in this matter to the European Court of Human Rights. They have lost their last chance. There were several opportunities for them to indicate any degree of movement whatever in this case. This was their last chance and they certainly have not taken it. I regard it as a most unfortunate, most regrettable, most illiberal and, finally, most hypocritical thing. Like the other Senators who have spoken I will not wait with bated breath for the introduction of a Bill outlawing incitement to hatred. I will not be waiting for that because I do not believe it is going to come in the near future.
I know the Minister of State is a delightful person. Everybody here has told me so. I have only had the opportunity to meet him today. He is from Roinn na Mara. My Irish does not stretch to allow me to translate that and I suppose one should extend some degree of a polite life raft to him since he is so plainly at sea on this matter. As I have said, I will not be waiting with bated breath for this Bill. I would be most interested if the Minister of State could give me a date if, as they say, they have taken on board my suggestion. I am very flattered as a new Independent Senator to have been able to prod the Government into introducing legislation. If a few feeble words of mine, illustrating the nonsensical nature of the introduction sideways of this clause into the Bill, have prompted the Government to introduce major legislation, well I am most flattered. If he wants to convince me, I would like a date. There is no point in telling me I am going to get a present unless I know exactly when it is going to arrive. I would also like to know this afternoon whether the question of sexual orientation will be satisfactorily considered.
The Minister for Justice does consider things. I know this very well because my good friend and political colleague Dr. Noel Browne asked the Minister a question on the subject of homosexuality in 1974 and the Minister said he would consider it. I understand he is still considering it. The Minister clearly is rather slow in the thinking process. Meanwhile, the country marches on and, as other people have stated, people get killed. We simply cannot wait until the penny drops for the Minister.
With regard to the question of parallel legislation in other countries, the Minister challenged me on that and said he did not know of any. I provided some for him. I could provide a lot more and I will do so if the Minister or his advisers wish me to but I really think, especially when senior civil servants and ourselves in the Seanad are looking for a nice healthy increase, it would be very rewarding to think that they might go and look for them themselves and acquaint themselves with this very important area of human rights, on the point of which the State because of the attitudes of the present Government is currently being sued in Strasbourg. It is not correct to say that there are no other laws. I said a majority of states but I could be wrong on that. Certainly a growing number of states and a growing number of federal states throughout the United States of America are adopting precisely these codes.
So it is a fairly standard, normal practice and it is one that will be more and more urgently required. I feel that it would be a great pity if this were allowed by virtue of the intellectual slackness of the Government party and their total moral cowardice to become a party matter. I do not wish it to become such. I look for some degree of support from the Government benches on this. They have been remarkably and very damningly silent.
The Minister's pious phrases about bringing in better law at a later date remind me of the guy going out for the night who prays beforehand: "Dear God, help me to be good but not yet", or more hypocritically and more meaninglessly of the blessing which a previous politician bestowed on the women of Ireland when he told and directed them to go all out to try to achieve the virgin state, whatever that might be.
This is probably the most disgraceful legislative decision I have seen in my short time in this House. It reaches a new level of hypocrisy on the part of a Government who will sit down and talk to me and the nation about British law, about other countries and about a holier than thou position. If we heard that Irish people were to be discriminated against in another State in a way similar to that in which groups of people will be discriminated against through the removal of this clause, we would be very quick to take umbrage and to object to it.
As somebody who is part of the legislative procedure, it is utterly and completely unacceptable to me. I do not see how it can be considered to be anything but unChristian. I certainly see it as being utterly and absolutely anti-social and anti the principles of socialism. Without doubt it is uncivilised and more than anything else it needs to be addressed. A Government, a Minister, a Department and indeed a House setting out to take the decision we are faced with here today can only be disgraced in the future and certainly will lose any sense of values. I remember the reaction in this country to the showing of the television series "The Holocaust" a short time ago which showed the situation in the concentration camps of Europe during the last World War. Irish people stood back and said it could never happen here. By virtue of the last decision we took — and by the one that is now before us — we are allowing ourselves to become the European dump as regards what can be processed, produced and circulated without any access to legislation to stop it. That is totally unacceptable.
Any young person can talk to you about the Ku-Klux-Klan in the United States, about the anti-Semitism which has been referred to by previous speakers and the various other racist doctrines which are part of history which we were always taught to believe were unacceptable. I do not want the Minister to stand up and justify his position as Minister. I want him to justify his position as a person and as a legislator. I want him to tell me how this legislation and this proposal before us and to explain to me how he is putting us into the position of giving succour, support and help to people who want to put forward the doctrines of Nazism, Fascism, anti-Semitism and every other racist doctrine. We have already been embarrassed in Britain and further afield by an address of a small house in a small street about a mile away from here which is used as the base point for the distribution of Nazi literature all over the English speaking world. I want to distance myself quite clearly from any further development which facilitates that kind of carry on.
Newman, 100 years ago, in his definition of education and of an educated person, picked out one quality above all others — and that was the quality of tolerance — which an educated person should have. The Minister is breeding intolerance. He is nourishing difference and he is certainly allowing a facility to incite hatred with the protection of the law. It certainly goes far beyond any other decision that has been taken here. I am pleading with the Minister to take on board what has been said here and to give us an undertaking that he will come back on this point or withdraw what he has proposed. It will make us the disgrace of European legislation. I have often spoken about the lack of legislation outlawing incitement to hatred. The fact that this measure is here before us and that we are taking such a regressive and negative decision is something that must be worrying to anybody who is part of the legisative procedure.
Listening to my esteemed, hard-working colleague, Senator David Norris, talking about his feelings of being at the receiving end of discrimination and bigotry makes us realise that I have been lucky throughout my life in having had very little of that to suffer. He was remarkably mild and, if I may say so, tolerant. I feel ashamed to be part of a process that would say somebody like him is now ripe as a target for indiscriminate exploitation by people who are afraid of difference and who cannot take on board different orientations, beliefs and attitudes.
We are about to allow to develop in this country and outside of it — because, remember, the effects of this decision here today can go beyond this State — a reinforcement of difference. We are about to continue with a divided State. All the things that are wrong in this society or in other societies feed on artificial difference. In this House last week in a discussion on the Constitution I referred to the fourth paragraph of the Proclamation of the Republic. I asked was it not a pity that although many people think that paragraph, with its phrase about cherishing all the children of the nation equally, and which many people believe to be part of our Constitution, is, of course, not part of our Constitution. It was very carefully not part of our Constitution. If it were, we would not be faced with this difficulty today because this would be unconstitutional.
It is certainly and definitely against the spirit and the direction in which the founding fathers of this State and the signatories of the 1916 Proclamation saw themselves going. That paragraph, which refers to carefully fostered differences, lives on today, shamefully if we go ahead and take this decision that we are being asked to take. How do we convince the Minister that this needs a reassessment and that this needs to be readdressed, that this is not a political issue in the sense of trying to make a political point? What do we need to say to him? What proof do we need to bring forward to get him at least to say: "I will take this away and reconsider it and I will come back on Report Stage"?
We are on Report Stage.
I got carried away. What can I say to the Minister that can have some influence in changing this particular area? We have seen what the difference between rich and poor can do in the sense of inciting those who have not to take from those who have. We have seen the difficulties in the northern part of this country. I spoke to Catholics in west Belfast who grew up knowing that the Protestants in the housing estates just over the dividing line were far better off, had better schools, nicer houses, better estates, cleaner water, and nicer play grounds. They were 30 or 40 years of age before they found out that there was no difference at all, but the carefully fostered difference was there. This is what we are now moving into as well. This kind of thing can lead to all sorts of difficulties. The fact is that we are inciting and allowing others to incite hatred. I am not saying the Government would want incitement to hatred, I am not saying that, so let us be very careful about that, I am saying that we are now leaving it open for people in any of the European states of the Community with the strict application of the Treaty of Rome to free movement of labour and goods, for people from any country in the Community and, indeed, our own as well, to come and set up a power base of hatred. Should our country become a power base of hatred, we will have much to be ashamed of.
An Leas-Chathaoirleach
Before I call on the Minister to reply to the debate on amendments Nos. 8, 9, 10, 13, 14 and 15, arising from what Senator O'Toole said, the Minister can only reply as Minister of State.
There is nothing ulterior in what the Government are attempting to do here. I can accept, in fairly broad measure, the texture of the contributions made by most Senators. The only question to be resolved, therefore, is whether it is better now to include in some way provision in this legislation, or whether it is best to await the introduction of the Bill on incitement to hatred. Now that I am out at sea and requiring a raft, could I quote from Second Stage debate a brief statement by Senator Norris:
I would like to go a bit further and ask the Minister whether it is now the intention of the Government to introduce specific legislation governing incitement to hatred because it seems to be absurd that we do it in a piecemeal fashion.
Senator Norris and others are of the belief that this legislation is not the proper place to do it. We really do not have a big argument with it. There is a need for it. It is fairly urgent. Considerable advances have been made in the preparation of that type of legislation. It is our wish to ensure that it will be introduced fairly quickly. The contribution made by Senator Ryan, and all the points he raised, lead in that general direction. It is a matter of serious import. It requires special legislation and the introduction of that legislation is urgent. It is the Government's view that we should make provision for it in the context of this legislation so that the matter can be dealt with in a broad way. There is a clear determination on our part to try to make those changes as quickly as possible.
An Leas-Chathaoirleach
The question is that the amendment be agreed to.
Would the Minister please clarify a technical point for me and that is——
An Leas-Chathaoirleach
I want to remind the House that this is Report Stage. We have to uphold the order of the House.
Amendment put.
The Seanad divided: Tá, 24; Níl, 20.
Tá
- Bohan, Edward Joseph.
- Cassidy, Donie.
- Doherty, Michael.
- Fallon, Seán.
- Farrell, Willie.
- FitzGerald, Tom.
- Fitzsimons, Jack.
- Haughey, Seán F.
- Hillery, Brian.
- Hussey, Thomas.
- Kiely, Dan.
- Lanigan, Mick.
- Lydon, Donal.
- McEllistrim, Tom.
- McGowan, Patrick.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- O'Connell, John.
- O'Toole, Martin J.
- Ryan, William.
- Wallace, Mary.
Níl
- Cregan, Denis.
- Daly, Jack.
- Doyle, Joe.
- Fennell, Nuala.
- Ferris, Michael.
- Friel, Brian.
- Harte, John.
- Hogan, Philip.
- Kelleher, Peter.
- Kennedy, Patrick.
- McCormack, Pádraic.
- McMahon, Larry.
- Manning, Maurice.
- Norris, David.
- O'Shea, Brian.
- O'Toole, Joe.
- Reynolds, Gerry.
- Robb, John D. A.
- Ross, Shane P.N.
- Ryan, Brendan.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators B. Ryan and Norris.
Amendment declared carried.
Government amendment No. 9:
In page 5, to delete line 45 and in page 6, to delete lines 1 and 2.
Amendment put.
The Seanad divided: Tá, 24; Níl, 21.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators B. Ryan and Norris.
- Bohan, Edward Joseph.
- Cassidy, Donie.
- Doherty, Michael.
- Fallon, Seán.
- Farrell, Willie.
- Fitzgerald, Tom.
- Fitzsimons, Jack.
- Haughey, Seán F.
- Hillery, Brian.
- Hussey, Thomas.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Donal.
- McEllistrim, Tom.
- McGowan, Patrick.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- O'Connell, John.
- Ó Conchubhair, Nioclás.
- O'Toole, Martin J.
- Ryan, William.
- Wallace, Mary.
Níl
- Bohan, Edward Joseph.
- Cassidy, Donie.
- Doherty, Michael.
- Fallon, Seán.
- Farrell, Willie.
- FitzGerald, Tom.
- Fitzsimons, Jack.
- McGowan, Patrick.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- Mulroy, Jimmy.
- Haughey, Seán F.
- Hillery, Brian.
- Hussey, Thomas.
- Kiely, Dan.
- Lanigan, Mick.
- Lydon, Donal.
- McEllistrim, Tom.
- O'Callaghan, Vivian.
- O'Connell, John.
- O'Toole, Martin J.
- Ryan, William.
- Wallace, Mary.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators B. Ryan and Norris.
Amendment declared carried.
Níl
|
Connor, John.Cregan, Denis.Daly, Jack.Doyle, Joe.Fennell, Nuala.Ferris, Michael.Friel, Brian.Harte, John.Hogan, Philip.Kelleher, Peter. |
Kennedy, Patrick.McCormack, Pádraic.McMahon, Larry.Manning, Maurice.Norris, David.O'Shea, Brian.O'Toole, Joe.Reynolds, Gerry.Robb, John D.A.Ross, Shane P.N.Ryan, Brendan. |
Amendment No. 10 not moved.
I move amendment No. 11:
In page 6, lines 3 to 5, to delete subparagraph (iii) and substitute the following:
"(iii) would be likely by reason of being in greater part or in its entirety indecent or obscene, to deprave or corrupt most persons who view it,".
Before I speak on the amendment I want to say something very clearly. I have no particular objection to who handles Government business in this House but I have a profound objection to somebody being put in who has no authority to make any response to the debate other than to repeat what he has been told to say. Much as I respect and much as I like the——
An Leas-Chathaoirleach
The only thing that is relevant is amendment No. 11. Would the Senator please deal with the amendment, and the amendment only?
I will, but I think I am entitled to explain why I wanted to propose an amendment. This amendment is to change section 3 with regard to subsection (1) (a) and what is now, regrettably and most misfortunately, paragraph (ii). People keep stealing things from me here at a most alarming rate. The proposal that Senator Norris and I have inserted is an attempt to arrive at an element of rationality. What we have to say is, of course, devalued by the fact that all sorts of indecency and obscenity will now be acceptable in this Bill provided they are of a racial nature. I find racism and religious bigotry and bigotry against people on the grounds of nationality as equally obscene and indecent as any detection of sexuality. It is now becoming a characteristically Irish Bill. The sort of real obscenity which manifests itself in racism and apartheid is acceptable in videos that are viewed in this country, but in regard to the sort of indecency and obscenity that we are happier condemning, which is that to do with sex and sex related activities, we are going to keep our pure and sacred selves protected from them.
This Bill in its present form is now a farce; it tolerates obscenity as long as it is not about sex. We are back to the Irish definition of Irish morality. The practical problem is that, as the Bill now stands in the light of an amendment inserted on Committee Stage — I am referring to subsection (2) of section 3 — the Official Censor shall not refuse to grant the supply certificate in respect of a video work in respect of which a general certificate or limited certificate under the Censorship of Films Act is in force. In other words, any film that is certified for distribution through the cinema circuit cannot be refused a supply certificate.
Consider the position of the censor. He is now doing two jobs. He is censoring films and he is censoring videos. For every single film that he censors for display in a cinema he knows that if he approves of its display in a cinema he will have to approve of it being supplied as a video. Therefore, he knows that if he gives an 18 certificate on a film, that 18 certificate on a film will be meaningless in the video circuit.
I appreciate and welcome the fact that the Irish Videogram Association are introducing people with a voluntary procedure of guidelines, but the truth is that there will be no legal prohibitions on who can get access to videos. I think age classification is rather difficult and possibly impossible. But the censor, because he is the same person, will look at each film. Will he not think that he will have to consider that if he gives an over-18 certificate to a particular film he will also have to allow that film to be circulated in video form? Will he not, therefore, begin to have an increasing degree of caution about what films he will allow?
The real decision about any video, particularly any video of any substance as distinct from those which are never shown in the cinemas, will be taken by the censor when he decides to allow the film to be shown. That is when he will decide whether a video will go on display. Any subsequent decisions cannot be taken about those videos because the Film Censor's decision will determine the future of that video. Over a period, the censor, quite naturally, and similarly the Appeals Board quite naturally, will begin to adjudicate on films on the basis that: "I am not just judging this for the cinemas; I am adjudicating on this as a video to be supplied in video supply shops all around the country".
We will enter an era of increasing restriction on films because every film a censor approves of automatically goes on general release in video form. I deeply resent the wording as it stands. The wording is open to a variety of interpretations depending on the climate of moral righteousness and it seems to be in a particularly ascendant form at present in Ireland. Let me quote the present wording of the Bill. The censor can declare a work fit for viewing unless he is of the opinion that the work is unfit for viewing because the viewing of it "would tend, by reason of the inclusion in it of any obscene or indecent matter, to deprave or corrupt persons who might view it."
The censor will have to look at a video film and decide if there is anything in it which might be obscene or indecent to the extent that it would tend to deprave or corrupt persons who might view it — not most persons or not many persons. That would be secondary if it were not for the fact that it will be also the Film Censor who will have to take an allegedly totally separate decision about cinemas.
It is my view that if — I think it is quite right — we are accepting that there will have to be parental control of young people using videos and most people will have to make decisions for themselves. The simplest solution to the dilemma the censor would have would be to ensure that the censorship of videos will be at least as liberal and possibly more liberal than any censorship that would apply to films. That is what our amendment endeavours to do. It simply attempts to substitute what I have just read out with the following:
would be likely by reason of being in greater part or in its entirety indecent or obscene, to deprave or corrupt most persons who view it.
In my view that would simply mean that most of the videos which would be described as soft pornography and many of the films which have received critical accolade in this country and which have been a matter of controversy as to whether the censor should have allowed them to be introduced here would be permissable. I do not think a single part of a video or a film should ever be allowed to form a judgment. I do not think the assumption that a single part might tend to corrupt some people should be allowed to make a judgment. The real judgment about what constitutes real pornography has to do with the intent of the makers, but that is unfortunately impossible to assess.
As it stands, the only thing we can do is to ensure that we do not end up, for reasons deliberate or accidental, with the position when, because the censor will have to allow any film which is permitted to be displayed in the cinemas to be sold or rented as a video, he will not begin to introduce a new standard of regulation into film censorship. Our film censorship is OK. Senator Norris has raised a good question regarding the fact that there are marginally a number of films that deserve to have been shown but were not shown here.
The fundamental problem for me is that as the Bill is at present worded it will have a spin-off effect on film censorship which will push us backwards. Many very worth while films which I think were good films, which I have seen and which I would encourage any adult to see, are not particularly those which I would like my children to see. That is the position that will pertain if the Bill goes through as it is. The only way to deal with this issue is to leave a greater degree of liberalism within the video area because it is a domestic activity which ought to be regulated by parents. I do not think we should be endeavouring to set standards for each individual family.
Therefore, I ask the Minister — although I know he cannot because he does not have the authority to do so — to consider this amendment, to consider some attempt by those of us who find the whole concept of censorship so revolting and so unacceptable but who recognise a problem when we see it, to try to strike a balance. The one thing that has characterised the entirety of this debate since it began is the profound unwillingness on the Government's part to deal with any of the central issues of censorship.
We have talked about regulating the business. We have talked about all sorts of other things. The fundamental question at the centre of this is the perpetual problem of censorship. Nothing that has emanated from the Government, nothing that has emanated from either the present Minister or the Minister who was here on Second Stage, has addressed that in any way at all. We have been presented with words which are as arguable in intent and in meaning as any set of words could ever be. Yet they have been presented to us as if they were on tablets of stone, immutable for all eternity. There is a whole host of implications in the present Government wording, which of themselves would be restrictive if the censor was acting simply to censor videos. In my view they are going to be back fed into film censorship and will result in an increasingly restrictive regime of film censorship.
It is inevitable, because it would not be humanly possible for the censor to act otherwise. Therefore, it appears to me that either the Government should consider separating the function of Film Censor and video censor completely or they should accept what I believe to be a sensible and practical thing, which is to re-word the section dealing with indecency and obscenity and make it less restrictive and less repressive.
I do not want to be led astray with talk about video nasties because the video nasties this Bill was intended to deal with were those which involved violence and sex with violence. We all agree that the juxtaposition of sex and violence and particularly mutilation are things that we do not believe are fit subjects to be covered. There has not been a similar clamour about what would be regarded as indecent or obscene videos. What is indecent and what is obscene are matters of subjective judgment, and the Minister on Second Stage conceded that.
We should not be directed away into arguments about video nasties because we are not talking about the classic video nasties. We are talking about the general area of obscenity and indecency which, as we all know, is, to say the least of it, a moveable feast. Let the Minister explain to us, if he can, how it is that the censor will not end up becoming more restrictive about films because of his obligation to see each film that is approved for cinema distribution and becoming available through every video outlet in the country.
The solution is to ensure that the regime for videos will be more liberal than the regime for films simply because videos will operate within the home environment where the real control lies. The only effective control that will ever operate is the control which parents will exercise over what their children do. If parents do not do that, no laws, rules and regulations will prevent kids seeing whatever they feel like seeing.
I will not repeat the arguments my colleague, Senator Brendan Ryan, has made and thereby tax the patience of the Minister and my fellow Senators, but I would simply like to point out that the wording at present of the Bill gives such a wide instruction to the censor, basically, to censor material that I do not believe there is a film by a major film maker that could possibly get through. The Bill provides that he should ban a video which would tend by reason of the inclusion in it of any obscene or indecent matter to deprave or corrupt the person who might view it.
I would remind the House that during this very week a citizen of this State has referred the Bible to the Censorship Board because of the amount of indecent and obscene matter contained in that book. Are the Ten Commandments going to be banned? I do not know. Possibly our religious perspective would make sure that it will not, but I can tell Senators that under this I will be very surprised if "Women In Love", "The Music Lovers", or""Maurice" or even "A Room With a View" is not banned.
It seems to me to be an extraordinary and dangerously drafted piece of legislation, particularly in the light of two things which have become quite manifest and evident during this debate: that the Government have singularly failed to address any of the major philosophic arguments raised by those who proposed the amendments. They have taken on board some small, niggling, technical matters which have nothing whatever to do with the real material philosphical substance of the Bill and the whole question of the Censorship Board. They maintain an absolutely resolute position on that. That is the first thing that worries me. They are not prepared to accept any modification in the essential and extremely narrow point of view that underlines what is a very dangerous legal area, very hazy definition of things like obscenity and indecency.
I am further worried, and this will be my final point, in the light of the Minister's remarks when I tried to push him on this on earlier Stages of the debate and he said he felt that it would be perfectly legitimate to ban something even if 80 per cent of the audience or of its consumers were capable of consuming or viewing this material with impunity. The very fact that 20 per cent, and these are the figures the Minister gave, might be offended or might find unpleasant, or obscene, or depraved some material, would be sufficient grounds for him to ban it. I am sure the Minister is as aware as I am that there are 20 per cent of people in this country who would find anything, including the Bible, to be obscene, so it gives in my opinion far too dangerously wide a latitude and I believe that this is more than a latitude. I think it constitutes an instruction, if I may use an over-used word with impunity, an incitement to ban.
I would like to support this amendment for the cogent reasons put forward by Senator Ryan and supported by Senator Norris. I am not at all happy with the wording of the subsection contained in the Bill for the reasons that have been put forward, and I think they can be developed further. Is the intention of the subsection that the Oireachtas is saying, this House is saying — because the Bill was introduced in this House — that a video should be banned because it includes any obscene or indecent matter? That is how this could be read: that the censor must in fact construe the subsection as providing that because it includes any obscene or indecent matter it has a tendency to deprave or corrupt persons who might view it.
That certainly is a perfectly reasonable construction of that subsection — that the censor must check the video and if it includes any obscene or indecent matter the censor must apply the section accordingly and must ban it. I do not think that is the intention as I have understood it from what the Minister said on a previous occasion in relation to this, but that could well be the unintended result of over broad drafting and of a badly framed subsection. If one goes back to the lead in to that clause the role of the Official Censor is that he should not supply a certificate in relation to it if the viewing of it — and then there are the other categories — would tend to corrupt or deprave, and then the Oireachtas says what is involved in that intention. "Would tend, by reason of the inclusion in it of any obscene or any indecent matter, to deprave or corrupt persons who might view it". That is open to the interpretation by the censor that the Oireachtas regards a video which includes indecent or obscene matter of any kind as necessarily tending to corrupt or deprave and, therefore, is necessarily material for which a certificate should not issue.
That is a perfectly reasonable literal construction of that subsection. It is also one of appalling consequences, as both Senator Ryan and Senator Norris have said, because it is far too over broad, far too repressive for the reasonable intent of this House, It seems to me that the amendment proposed addresses the proper concern. It is a proper concern to ban videos if there is a real prospect that they would deprave or corrupt, and the wording of the amendment addresses that issue because it would substitute a much stricter and, indeed, much clearer instruction, to use Senator Norris's words, to the Official Censor that the certificate would only be refused if it would be likely by reason of being in greater part or in its entirety indecent or obscene to deprave or corrupt most persons who view it.
The Oireachtas is indicating to the censor what would be the test of appropriate circumstances in which to conclude that it would tend to deprave or corrupt most persons who view it. It is very important when the Seanad has the opportunity of a first examination of legislation of this kind that there would be an openness to the arguments that are being put. The Minister should take seriously the examples that have been put forward of the dangers of the subsection as it stands. The concerns are real concerns and any concern in the area of censorship should worry us as a democracy.
We know and have a historical memory of the effects of censorship of any kind. Where it is warranted that should be done under well understood and restrictive circumstances, but here we have a subsection which appears to indicate to the Official Censor that if there is included in the video any obscene or indecent matter it should be banned. That is so broad, as has been said, that it must exclude an extraordinary number of films. It is difficult in modern times to envisage films which do not include matter which could be characterised as being either indecent or obscene for adult audiences in some regard. Yet that is the test the Oireachtas appears to be putting up in the subsection: by including any indecent or obscene matter, it would tend to deprave or corrupt persons who might view it.
The Minister in replying to the amendment may say that is not what is intended, but it is not what the Minister says in the Dáil or Seanad that matters for the constructing of statutes; it is how they are construed and initially, of course, the difficulty is that the construer of this statute will be the Official Censor. It is only if that is challenged and the matter gets into court that you may have a court construing what the subsection means. We must have as a primary value in looking at this section as a whole, and this particular subsection, that we do not provide a wording which is over broad, that we do not set up a test which results in the censor applying a standard which was not the standard intended by the Oireachtas. If, on the other hand, the Minister says that is what we intend, I disagree fundamentally with him. It would be a very sad reflection on the role of the Government, and indeed on the role of the Official Censor in relation to carrying out any censorship function, whether books, films or videos, if it were intended that if there was included in the video any obscene or indecent matter that should be sufficient to refuse the applicant a certificate.
The arguments advanced for substituting wording either exactly as framed in the amendment or tighter than in the subsection are very strong. They are made particularly strong by the argument developed by Senator Ryan of the potential influence on the censorship of films. I think he is right to alert us to that very real danger and there is a potential carry over to the area of films. It is extremely important in looking at the subsection that we are agreed that we can reach agreement on what we want to achieve, and then that we have wording that achieves it. At the moment this wording is so over broad that it does not have any precise parameters. What we are saying to the censor effectively is that if it contains any material of an obscene or indecent nature he should refuse the certificate.
That seems to be an overkill as to be a bad example of how to approach instituting a new form of control, because this is a new form of control. We are substituting a new form of control where at present there is no control, and it behoves us not to be panicked or worried on a false premise in this regard. We are not talking about the violent video nasties here. We are talking about the necessity to create a balance between the reasonable rights of citizens to decide for themselves the nature of their viewing — parents to decide in the context of their own homes what their children will view and so on — and not to try to overkill in relation to the subsection.
The Minister has listened to the arguments. He is a fair-minded man. This Bill is receiving its first outing in this House, of which he is a distinguished former Member, and it is important to ensure that we get the wording right. By "right" I mean that we get the balance right. At the moment I do not think the balance is right. The amendment by being much stricter in its standard is striking a better balance. I hope the Minister will take seriously what I believe are strong and cogent arguments in favour of the new and more restrictive wording of this subsection.
I am sorry that my presence here this afternoon and my competence or otherwise to deal with these matters have brought out an intolerance in Senator Ryan which I would not have attributed to him up to today.
Not fair; not true.
I would expect him to accord to me a degree of tolerance which I would always accord to him.
I thought the Minister liked me.
In making his case the Senator indicated that if the Minister for Justice were here he, Senator Ryan, would be likely to succeed with his case and that my presence here has damaged those prospects. He introduced the same amendment at Committee Stage and it was unacceptable to the Minister for Justice at that time. The position remains the same. We are opposed to these amendments on the basis that they could lead to video recordings of video works with very objectionable passages in them having to receive supply certificates from the censor. You could easily have a 90 minute video work with 70 minutes of innocuous material, the other 20 minutes could be totally objectionable and could be material that would have a very adverse effect on many of its viewers. I know such video films are available.
The film censor would not be in a position to refuse a supply certificate in respect of such a work because it was not in greater part or in its entirety indecent or obscene, despite the fact that the censor would be of the opinion that the work was unfit for viewing because the viewing of it would tend to deprave or corrupt persons who might view it because of the obscene or indecent nature of the material in those 20 minutes.
Similarly, the censor could not refuse a supply certificate for a video work where in his opinion the work was unfit for viewing because the viewing of it would tend by reason of the indecent or obscene material in it, perhaps running to its entirety, to deprave or corrupt many, though not necessarily most, of the people who might view it. The censor might be of the opinion that a certain video work might not corrupt most persons who view it. However, he would be of the opinion that the work would be likely to deprave or corrupt a substantial proportion of the people who might view it.
I can see merit in a number of points Senator Robinson was making, but I think she was referring more to objectionable material than to the regulations contained in the Bill which specifically states "would tend, by reason of the inclusion in it of any obscene or indecent matter, to deprave or corrupt persons who might view it,". For instance, let us take a situation where we accept an amendment and up to 40 minutes of a certain video contain that kind of material and 60 minutes are unobjectionable. It is quite clear that the makers of videos could circumvent the law by producing videos which tend to ensure that the time devoted to the more objectionable features, and the features which tend to corrupt, would be of lesser duration than the remainder of the video.
When it comes to the censor, there are arguments that this Bill is too broad. When it comes to Senators being reasonably satisfied that they are making the right decision as to whether it is suitable I hope they remember a video can be played and replayed over and over again. The way that has been covered in the Bill is a better solution to the problem. In deference to Senator Ryan, I have to uphold the view of the Minister for Justice who, when he was present in the House and dealing with a similar amendment in Committee Stage, made those points very strongly.
Senator, Norris said it. The Government have utterly refused and failed to address the philosophical questions surrounding censorship. They were addressed by the Minister for Justice when he held a press conference to announce his intentions in this area. They were addressed philosophically in his Second Stage speech when he introduced the Bill but, when it came to a discussion on specific issues, the Minister ran away from it. The idea that makers of nasty videos are going to sit down with a stopwatch and say: "For Ireland we will make special videos that are only 49 per cent nasty and that means the Irish will have to let it through" is ridiculous. We are a small part of an international market, and that is not going to be our problem. Indeed, if that turned out to be our problem, it would not be difficult to get legislation through these Houses in a hurry.
I get to the stage of resenting some of the extreme examples Ministers bring up here to try to justify the indefensible. The Minister did not as much as do me the honour of referring to the possible implications of this Bill for film censorship, on this occasion or on Committee Stage. Neither did the Minister for Justice or the Minister present even condescend to refer to the possibility that it might have an effect on film censorship. Is it because they intended to have that, that they had not thought about it, or that they just cannot bother explaining it?
I resent the fact that we have got to the stage where all the issues are not even being discussed. We are being presented with pat replies that were written, I suspect, before the debate and which do not refer to the issues raised by Members in this House. I regard if as something close to contempt that we are not going to get replies to the issues we raised on Report Stage. I resent this very deeply because I take this House very seriously — and the Minister when he was here also took this House very seriously.
On the question of the wording of the Bill as it stands, we now have the opinion of Senator Robinson, a very eminent lawyer, that the wording is open to an extremely narrow interpretation. Let me give a very specific example. A film that was regarded by many of the film critics in 1986 as the best film of the year, was "Betty Blue". "Betty Blue" was a superb, compassionate, entertaining, funny and sad film. It opened with a very explicit depiction of sexual intercourse. It is beyond me to understand how, under that wording, that film could be acceptable for circulation as a video. I have a reasonably fertile imagination in the area of sexual activity but I cannot speculate the extent of what can be interpreted, excluding violence which is provided for in the next paragraph, as being offensive, indecent or obscene unless we are talking about bestiality and sex involving children. In that case, my view is that that should be prohibited specifically by name and should not be implied. There are many people in this country who would regard "Betty Blue" and the explicit depiction of sex in that film as intending to deprave or being indecent or obscene. Our censor gave that film an over 18 certificate.
Am I to be given any reassurance by the Government that they will do anything about this Bill in the other House to ensure that the censor does not begin to feel that films like that, which are presumably on the borders of what is permissible, should now be banned because once he approves it under any form it will have to be made available as a video, and if he reads the wording of the Video Recordings Bill, that will obviously influence his decision. It would have been great if the Government had gone to the bother of endeavouring to address the issue instead of ignoring it. There is a perfectly good case for a broader definition of what is and what is not acceptable. I do not believe the criteria that something might deprave or corrupt some people, whatever that means, should automatically mean that a piece of work should be banned. I am sure there are many books, for instance, on sale in this country that at some stage in their history in the sad spectacle of censorship, were banned for precisely that reason.
It is important to remember that the records of this House were quite extraordinarily edited because people did not want to have certain matters read by others. Members of this House somewhat more than 50 years ago decided that the matter contained in a book — excerpts from the "Tailor and Ansty"— would tend to deprave and corrupt people. These are very dangerous terms, and the only decent and proper thing to do is to ensure that those who have to carry out the instructions of this House are given instructions that are easily understood and interpreted. The wording there, which is designed to avoid the Government having to think through their position — which is characteristic of sloppy thinking, sloppy analysis and a failure to think through what is being done — is inadequate. Above all, the implications for film censorship of what we now have in this Bill have not even been addressed. Since the Government cannot find any particular reason to address the issues I raise in the amendment, I have no option but to continue to pursue the amendment.
An Leas-Chathaoirleach
The Question is: "That the words proposed to be deleted stand."
Senators
Vótáil.
An Leas-Chathaoirleach
The Question is: "That the words proposed to be deleted stand." On that Question a division has been challenged. Will those Senators calling for a division please rise in their places.
Five or more Senators stood.
An Leas-Chathaoirleach
The division will now proceed.
The Seanad divided: Tá, 26
6; Níl, 6.
Tá
- Harte, John.
- Norris, David.
- O'Toole, Joe.
- Robinson, Mary T. W..
- Ross, Shane P. N.
- Ryan, Brendan.
Níl
Question declared carried.
Amendment declared lost.
Debate adjourned.