Before we resume on amendment No. 12, I have circulated for information of Members a note on the present state of play on the remaining amendments. Senators will note that most of the amendments have already been discussed and dealt with. Before I call on whichever Senator will be speaking to move amendment No. 12, I would like to remind the House again that Senators may speak only once on Report Stage except the proposer of an amendment who has the right to reply. That is just for information, because in my days on the floor I was always totally confused when there was a grouping of amendments. We are now dealing with amendments Nos. 12, 17 and 27 with 28. We are dealing with No. 12 on its own first. Already out of the way are the other amendments. The Senators who are interested in this legislation have it before them.
Video Recordings Bill, 1987: Report Stage (Resumed) and Final Stage.
I move amendment No. 12:
In page 7, line 30, to delete "examined" and insert "viewed".
Senator O'Toole was asked to have an informal discussion with the Whips. He was to second this amendment. I hope the House will grant me some indulgence if he is not here by the time I finish my explanation on it. I have a seconder on this, as is required under Standing Orders for Report Stage. He is unfortunately out on the business of the House. I hope the House will indulge me if there is any problem about it.
This is not, in my view, a particularly controversial amendment. It is similar to one I introduced, but did not push to a decision, on Committee Stage. It has to do with the role of the Official Censor in determining whether or not a video work shall be granted a supply certificate. I must say I have not yet understood why the position cannot be clarified. The section as it stands states:
If the Official Censor, having examined a video recording containing a video work... is of the opinion that the work is unfit for general viewing because of——
The word "examined" imposes absolutely no obligation on the censor to actually view the video. I presume that by and large our censors have been sensible, practical people. I also know that our censors are not governed by my will, or the will of a Minister, or the will of a Government. They are governed by the legislation. They operate according to the legislation. I know that legislation is drafted carefully. The word "examined" does not require our censor to actually look at every video before he or she decides to either grant it or refuse it a supply certificate. I would be worried that in times of pressure or in times of volume of work a lot of material would be refused a supply certificate simply on the basis of reputation, or on the basis of an assumption of what it was like, or on the basis of the first five minutes of it.
I have mentioned frequently one particular film — a film which I would regard as a superb film — which commences with a sexually explicit scene. It was on view in the cinema for a considerable length of time. If a censor, or one of the officers acting on his behalf, which can happen, were to simply look at the first two minutes of that film, he or she might choose to take a particular point of view. I do not think that we can allow anybody to decide what we can see or what we can read on the basis of anything other than a considered judgment. I have sufficient reservations about the whole business of censorship as it stands without allowing people to operate in a kind of "default" situation.
For instance, if we had a phrase like this in connection with literature, so that a censor of books could examine a book to decide whether or not he or she would censor that book, we would have the ridiculous position where books could be censored on the basis of their covers or on the basis of their repute, or on the basis of how they are advertised. The word "examined" does not mean in any way that the censor has actually had to look at the material. If it does mean that, the Minister can happily accept my amendment and clarify the meaning of the legislation. If it does not mean that, he is inviting trouble.
I am beginning to suspect at this stage that this Bill, from being a well-intentioned attempt to regulate an area where we all saw an appalling abuse, is moving into a classic piece of traditional Irish censorship which will adjust to the latest demand from an outraged public opinion about something. I cannot understand why the censor should not be required to look at and view every single work before it is banned. To ban something from circulation in a country is a profound interference with the freedom of the individual. It should be done for good and valid reasons only. I cannot imagine circumstances in which you can justify something being banned on the basis of a cursory examination.
Therefore, I have to suggest that we are inviting the censor to go through large bodies of material which is deemed to be prurient because of its source, its publicity, its wrapping, its cover, or its reputation, and examine it, as he sees fit, perhaps without viewing it, and ban it en bloc. It is of course a very effective way of getting a lot of work done quickly but it is not a satisfactory way. I would be very interested in hearing any circumstance in which the censor could be justified in not viewing a particular video recording. I do not believe there is one. The reason which the other Minister used on Committee Stage was that he did not want somebody to be required to view a particularly offensive video in its entirety. I take the view that if somebody is given the particularly unpleasant job of being a censor, that responsibility should go with the job.
In order to be reasonable and to respond to the Minister's position I rewrote this amendment because it does not say "viewed in its entirety". Since it does not say "viewed in its entirety" it does not mean "viewed in its entirety". I require that at least the censor must make an attempt to look at what is in a video before he or she decides to refuse a supply certificate. That is not an overwhelming load. It is not an unreasonable demand. It is the least that can be expected if we are introducing censorship by one person or by an appeals board. I cannot conceive what motivated the Minister or the Government to draft a Bill which could leave open even the remotest possibility that a film could be refused a supply certificate in this country without being seen by the person who is refusing that certificate. Therefore, I am moving the amendment.
I second it.
This amendment arises out of the debate on Committee Stage — columns 1725-1729 — on a different amendment which Senator Ryan proposed and which he withdrew on the Minister's undertaking to look at the matter.
Senator Ryan's amendment in Committee was to insert a provision in section 3 to require the Official Censor, before refusing a supply certificate or making a prohibition order in relation to a video work, to have "viewed the entire work". Senator Ryan was afraid that with the Bill as drafted the requirement in section 6 that the censor should have "examined a video recording containing a video work" would be satisfied by the censor's merely looking at the cover of the recording and Senator Norris seemed to some extent to share his anxiety. Senator Norris, in fact, suggested the substitution of "having viewed" for "having examined" in section 6 as the present amendment proposes.
As I said, the Minister promised on Committee Stage to look into the wording. This has been done and, in view of the difficulty that Senators Ryan and Norris felt, the Department consulted the draftsman of the Bill. The upshot is that I am convinced that "examined" rather than "viewed" is the right word here; and the draftsman so agrees. In any event, the amendment would surely have to be changed to speak not of viewing a video recording but of viewing a video work contained in the video recording; but apart from that purely drafting point I still think that, as the Minister said in Committee, "there is a very subtle different between the two words ‘examined' and viewed"'. I think that the idea of examining a thing involves ascertaining its character, or the like, for the purpose of enabling one to form an opinion about it, whereas the idea of viewing a thing is much more general and may not be for any particular purpose.
Applying this distinction to the Bill, the censor examines the recording in order to decide whether the character of the video work in it is such that he ought to make a prohibition order, whereas the viewer is probably looking only for entertainment or interest. Clearly the expressions "examine" and "view" are not simply interchangeable in the Bill. For example, one could not speak in section 3, 6 and 10 of the viewers "examining" a video work. I feel sure that "examined" conveys what is required of the Official Censor; he must find out enough about the video work in question in order to show him whether he should make a prohibition order.
The censor will be able to make a prohibition order only if he is of opinion that the video work is unfit for viewing because of one of the reasons stated in section 6, and he could never form this opinion without acquiring sufficient knowledge of the contents of the work. So it follows that Senator Ryan need not fear that the censor might make a prohibition order in respect of a work after merely looking at the cover of the recording. If he were to have just a cursory look at it, he would see that it would be extremely foolish. As the Senator is aware, there is a Censorship Appeals Board. One would have the right to appeal in the event of a cursory decision of that kind. That is extremely unlikely.
I should add that the expression "examine" is used in what I suggest is an analogous context in relation to publications. Section 6 of the Censorship of Publications Act, 1946, provides that the Censorship Board shall examine books referred to them. Under section 7 the board's power to make a prohibition order in respect of a book on the ground that it is, in their opinion, indecent or obscene is exercisable only after they have examined the book. Clearly, the board could not form such an opinion after merely looking at the title of the book. Surely the same argument would apply to a video work.
I know this matter was discussed on Committee Stage. Senator Ryan holds a very strong view in relation to the use of the word "view" and against "examine". On the last occasion, he more or less accused me of not wanting to deal with some of the questions he raised. We could spend days here. With regard to the words "examine" and "examination"— you could move to the top of a hill and view a valley, but you would not be able to examine it, There is a difference. Because of my high regard for the intellectual honesty of the Independent Senators and their highly liberalised views from time to time — maybe with some inconsistencies as well — I looked at the Irish aspect of it. Here we get the word "scrúdú", in contrast to "breathnú" nó "feiceáil". Even the Irish language itself has a stronger sense of the interpretation of "examine" versus "view".
When I was dealing with the question earlier, I referred to references in the Censorship of Publications. Here in the Irish version we have the "scrúdóir oifigiúil". I think it is fairly clear that the word "examine" is used because it was felt that was a better word when the censorship Act was being devised. It has stood the test of time. It seems to search more for a solution to the problem. An examination is tending to lead towards a result. You can view for any one of a number of reasons but, when you examine, you are examining to find a result. I suggest to Senators that it may be a debating point but we are satisfied that the use of the word "examine" is more appropriate in the circumstances and, therefore, I have to reject the amendment.
Purely semantically I think the Minister makes a very strong case. Our worry is that the use of the word "examination" could mean something else again. To continue this semantic discussion, it could be an actual physical examination of it rather than what was portrayed by the video. Could the Minister, for my sake, give a guarantee that somebody would not rule out some video work without having even looked at it? In other words, what I want to know before going any further with it, is whether the censor would be required to see the work or a portion of the work that goes into the actual video recording itself.
There is absolutely no difficulty in giving the Senator that assurance.
Is amendment No. 12 withdrawn?
Before I decide to withdraw it, I have to concede that the Minister has made a good case. May I say I never accused the Minister of being unwilling——
Incompetent.
I never said he was incompetent. He was unauthorised. He was there as a substitute without authority to do anything because he was not the Minister responsible.
The fact that the Minister for Justice himself was unable to attend this House on both occasions does not mean that if somebody deputises for him he is confined exclusively to his role in his own Department. Obviously, I have my own personal views about these matters and I apply my own judgment as well, so that the Senator need not feel a sense of grievance because on both occasions the Minister for Justice, unfortunately, was absent.
I have a sense of grievance and the Minister will not reassure me in the least. First of all, I would never accuse the present Minister in particular of incompetence because I know he is far from being incompetent — he is extremely competent. The problem is that he is not in a position to decide. The decisions about these matters were taken, presumably, outside this House by the Minister on the advice of his officials and this present Minister was then landed with the less than pleasant job of having to defend something which was not part of his normal brief. I feel great sympathy for him. Nevertheless I regard it as an extremely frustrating experience that this House has to go through an important piece of legislation which the Minister for Justice stated he was introducing in this House precisely because he would welcome the sort of debate that would take place on it in this House and then the Minister goes missing from a large part of the debate.
I found that unacceptable and I still find it unacceptable and the fact that one of the most able of the Junior Ministers in the present Government was sent in to cover for him does not get us away from the fact that it is still unsatisfactory. He can have all the compliments he likes from me but he is still not the person for the job because he has not the authority to speak on it. It is as simple as that. It has nothing to do with the present Minister; there are others to whom I would not be as complimentary but I would still feel they were not prepared to do the job.
You have said all the things about the Minister for Justice and who was here instead of him and all the rest. Could we get back to amendment No. 12?
I am glad you are protecting the Minister.
May I say I did not raise the matter in the first place? It was the Minister himself who raised it.
I am concerned that you used the word on another day in reference to this Minister. I do not think I would have let you away with it either.
I will check the record when I leave. I very much doubt that I used the word "incompetent". I have used a lot of words, but I use them carefully, a Chathaoirligh, usually.
Even if the Senator did not use the word I am free to interpret what he did say.
The Minister will be less free when this Bill, as it is now formulated, goes through the Houses of the Oireachtas. That is all I can say. The point at issue is the meaning of a word. I must say I am a bit taken aback to discover that the word "examine" does exist in the censorship of publications literature. On the other hand, I accept at this stage that that legislation has stood the test of time. One assumes, therefore, that there must be an accepted interpretation of the word "examine" which involves people reading those books. Therefore, since apparently we have a precedent for using the word and since the Minister has put up a good case — in this instance — I am quite happy to withdraw the amendment.
Just for the record of the House — and again I am not defending senior Ministers, or junior Ministers, or Taoisigh, or anybody else — I understand that the reason the Minister, Deputy Collins, is absent today is that he is buying his mother-in-law.
I am aware of that.
Amendment No. 13 has been discussed with Amendment No. 8.
Amendment No. 16 has been discussed with Amendment No. 11.
I move amendment No. 16:
In page 7, lines 42 to 44, 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,".
Is the amendment being pressed?
No.
I move amendment No. 17:
In page 15, line 10, after "recording", to insert "for which a supply certificate is not in force.".
This amendment is an attempt to deal with quite an extraordinary situation. You have no parallel with books in this case because under the Censorship of Publications Act, all books are permitted to be circulated in this country unless they are banned. In the case of videos from now on, no video will be allowed to be distributed in this country — subject to exemptions — unless a supply certificate is issued. That is the precise position at the moment. So, any parallels with the activities of say, Customs and Excise, are not entirely true. Under the present Customs and Excise legislation, if an officer of the Customs and Excise suspects or believes that a book is indecent or obscene, he may seize that book and refer it to the censor of publications and whatever we might think about that, that is the way it is. What we are now proposing to do is to say under section 16 that an officer of Customs and Excise may detain upon importation into the State any video recording which, in his opinion, ought to be examined by the Official Censor under this Act.
This raises the interesting question: if one particular censor takes the decision and subsequently there is a change in the moral climate or something, or an officer of Customs and Excise forms the opinion that the censor was wrong, can be then say: "I want to send this back. I do not approve of this. I can send it back." Unfortunately some of the evidence on the behaviour of some people in the Customs and Excise — not all of them — is that they seem to exercise a rather extraordinary set of judgments about what should and should not be banned. I am simply proposing that the Customs and Excise officer should not be allowed to refer to the Official Censor any video recording for which a supply certificate is in force.
In other words, if the material is coming in and has no supply certificate in force — and bear in mind there will be a register of videos for which supply certificates exist provided for under this legislation and therefore he is free to check which videos a supply certificate exists for — I can see this legislation leaving us open to all sorts of confusion and, indeed, embarrassment with material which has already been approved being resubmitted for censorship. If there is a job for Customs and Excise here, and I doubt it, but if there is — and some people seem to agree that there is — it simply should be to deal with any videos which an officer of Customs and Excise comes upon which do not have a supply certificate with them. The present provision under section 16 is that any video recording, whether or not a supply certificate exists for it, can be referred by an officer of Customs and Excise to the Official Censor.
I have no real reason to understand why Customs and Excise should have such a function for those videos where a supply certificate already exists. It seems to me like an attempt to make sure that, having censored us once, we are going to try to make sure that in case the censor either missed something, or made a mistake, or perhaps made an error of judgment, we can do it a second time. I cannot see why we should not restrict the activities of Customs and Excise in scrutinising video recordings to those video recordings for which in the words of the amendment a supply certificate is not in force. Otherwise we could have ludicrous attempts to recensor things. We could have ludicrous attempts to re-judge things, to rewrite the judgments of the censor, particularly when there was a change of censor or something like that. Therefore, I move that the officers of Customs and Excise may detain any video recording for which a supply certificate is not in force and only for those cases and that is the meat of my amendment.
In seconding it, just to cur leis an méid atá ráite ag an tSeanadóir Ó Riain, I have discussed this with the Customs and Excise people and their union. They are, quite frankly, sick and tired of legislators bringing in new bits of legislation which requires them to do extra duties and extra functions, not because of the extra duties and extra functions but because they have no guidelines on which to work. This still requires the Customs and Excise person to carry out the same functions, but at least at this stage with the back-up of requiring the State to give the customs officials a list of those videos or whatever equipment is concerned which have a supply certificate which allows them easily to check whether or not something has already been assessed, scrutinised and passed. If that is the case, they can do a quick check on it.
In all fairness to the people we are asking to do the job on the ground, the Customs and Excise officials, this is something which would lead to a more efficient and effective working of the legislation. There can be no reason why the Minister would not accept this proposal.
I do not see how I could accept this amendment.
I did not think the Minister would.
Section 16 empowers a customs officer to detain on importation a video recording which, in his opinion, ought to be examined by the Official Censor and to refer it to him for that purpose. This is in order to enable the censor to consider whether he should make a prohibition order in respect of a video work contained in the recording. The difficulty about prohibiting a customs officer from detaining a video recording, if the video work contained in it is one in respect of which a supply certificate is in force, is that the customs officer may not know whether the recording contains only certificated video works and he may have reason to suspect that the title of the work as it appears on the recording is false. If the customs officer was satisfied that the recording contained only certificated video works normally there would be no point in his detaining the recording.
It is true that the fact that a supply certificate is in force in respect of a video work is not a bar to the making of a prohibition order. That is provided by section 6 (1). Clearly such a case would be exceptional. Nevertheless, if it is right that the censor should have this power, it would surely be wrong to deprive the customs officer of the ability to provide the censor with the opportunity to consider whether he ought to exercise it. In any event, there is no question under the Bill of customs officers acting as censors. I repeat the assurance the Minister gave on Committee Stage that if it is shown that this section is being abused it will be reviewed.
The point was made by Senators O'Toole and Ryan that you may have an individual person in customs who was perhaps a type of maverick, or someone who had a special feeling towards all of this. Senators seem to envisage that certain difficulties might arise in that situation. Looking at it in a broader context we have to be sure that, since the censor has an obligation to make the decision ultimately, the freedom to pass on that material to him where the customs officer has a suspicion has to be enshrined in the law. Therefore, it is not possible to accept the amendment. The Senator should be satisifed with the assurance that, if this proves to be in any way ineffective or creates problems, we will be prepared to review that aspect of it as soon as information to that effect comes to us.
I am beginning to wonder what the point is. There was a time when one could speak on Committee and Report Stages and feel that one was having a debate. It reminds me a little bit of Seán ÓFaoláin's famous remark: when you hear two Irish people having a conversation it is like two people playing handball against different sides of the same wall. I keep hearing the same things I heard on Committee Stage. We have made no progress. When we deal with an issue in this country we tend to have a habit of overkill as evidenced by the referendum on abortion when we had the most cast iron prohibitions, not just legally but in terms of the moral climate of the country about abortion and we decided we had to symbolise our outrage by copperfastening and overkill.
We are now in a position where a perfectly legitimate concern about a particular form of video recording has translated itself into a Bill which will do an enormous amount of damage to free expression and which, at the same time, in other areas which are offensive to all of us, will allow a licence that probably exists in no other European country, the licence to foment racism and religious bigotry. What we have here is the unfortunate tendency which comes up in a lot of our legislation, the "what if" tendency —"what if somebody were to do something that might possibly in certain circumstances be against a certain part of the law?"
If the officer of Customs and Excise believes that a film or a video recording does not have a supply certificate in force — and I am perfectly happy that that will include some where he thinks the supply certificate that is on it is not one that refers to the body of material — I do not believe any court of law would blame him for saying: "There was a supply certificate for this title but I was satisfied that what was contained in this was not the title for which a supply certificate was in force." It seems that would be very reasonable.
I cannot understand how we could ever have a situation in which a video recording for which a supply certificate was in force could be held up or delayed by an officer of Customs and Excise unless we are getting ourselves involved in extraordinarily convoluted reasoning. I have enough qualms about this legislation as it stands without inviting second-time censorship, third-time censorship and God knows what else.
I really do not know if we have addressed the fundamental questions here. For instance, we have no prohibition on child pornography per se in this, which I would regard as a particularly offensive form of pornography for which the makers ought to go to jail as well as anybody who attempts to sell it. We left that out. We have left out a number of other things also. Yet we have this extraordinary provision that an officer of Customs and Excise may detain on importation into the State any video recording which in his opinion ought to be examined by the Official Censor under this Bill. “In his opinion”— an extraordinary phrase; and it is “any video recording.” I cannot understand why we have to put in these catch-all phrases. It is quite understandable, though I do not think necessarly, that Customs and Excise ought to be the front line of our defence against pornography. If they must do this as well as all their other jobs, surely their attention should be directed towards video recordings which are not covered by a supply certificate.
I am flabbergasted by the resistance to any attempts from this side to improve not the administrative arrangements for dealing with video outlets but the whole philosophical question involved. A further barricade of censorship has been put up against every single amendment introduced from this side of the House, a vigorous resistance to any suggestion that this Bill in the philosophical issues of censorship is anything other than perfect. I have rarely encountered such a resolute resistance to an attempt by Members of this House who take different views on different issues to contribute towards a sensible solution to a problem.
What we have met is a virulent, vigorous resistance to every attempt to rewrite this Bill in a way which would meet both the concerns of those of us who are unhappy about censorship and the concerns of those who promoted this Bill, and a resistance to a simple proposal that Customs and Excise should confine their attentions to videos which do not have supply certificates in force. This confirms my view that this Bill was conceived and will go through both Houses of the Oireachtas unamended because it suits a particular narrow point of view. Its impact will be well beyond that which it was originally intended to be. We will be returning to something close to the censorship of the sixties and before.
If the Bill goes through in its present form, the process of importing a video will become most hazardous. For instance, if the cover on a video coming perhaps from a country with a different viewpoint on sexual matters from ours is changed and the publicity material associated with it is changed a Customs and Excise officer may say: "I do not like the look of this." He goes through his list of supply certificates, discovers that it is covered by a supply certificate but then he may be of the opinion that this might be different from the one for which a supply certificate was in operation and he can pack it off and hold up distribution. I find that quite astonishing. How does he know, for instance, that the material in a particular video which has the same title as one on the list is actually the same video? Any customs officer who objected to sexually explicit scenes in a number of films could happily say: "How do I know this is the same as the one the censor looked at, even though there is a supply certificate in force for it?"
The list of possibilities is endless if we do not say his or her job ought to be to deal with videos which are not covered by supply certificates. Forged supply certificates, unauthorised changes or unauthorised insertions in videos are matters for the Garda. Are we to leave this power at the point of entry for an arbitrary exercise of opinion by an officer of Customs and Excise to say: "I do not think this is the same as what the censor saw because the censor could never have allowed this to go through." I remember a Member of this House talking to me after we had discussed a film here and saying he was taken aback when he saw the film. He felt that the censor had gone too far. That is a matter of opinion but the fundamental fact is that any officer of Customs and Excise can happily form an opinion that either the censor did not see it in its entirety or, perhaps, it had been changed from the one the censor saw or, perhaps, it was the same title but a different video.
There are endless possibilities and there is a question of balancing the rights of the individual against the rights of the State in this case. It is now loaded heavily on the side of the State where an officer can decide, on his own, without reference to anybody, without being bound by the list of films for which supply certificates are in force, that a particular piece of material must be referred to the censor. That seems to be an invitation to interference in a whole lot of areas by people who, as Senator O'Toole has said, would far prefer not to be involved in these areas. The whole idea of asking Customs and Excise people to get involved in censorship is ridiculous and is probably as embarrassing for them as it is for the people they question about it.
At this stage my concern is far more about the pointlessness of attempting to have a serious debate on a serious issue in this House when the Government resolutely refuse to discuss the issues and lead us into back alleys — but I will say something more on that on Fifth Stage. The amendment is an attempt to make this legislation work in the way it is intended and I deeply regret the resolute refusal of the Government to consider any serious amendments.
I want to say a few words on this amendment and on the section which Senator Ryan had hoped to strengthen in his opinion. He wanted to ensure that it was strengthened.
First of all, the comment from Senator O'Toole about putting an additional burden on Customs and Excise officers is without foundation because this section does not insist that they should act as censors on the ground. There is no obligation on any Customs and Excise officer under this section to carry out a form of censorship on his own. Therefore, any worry they have as an organisation is unfounded. The Minister's response to that is reasonable. Certainly they involved themselves in the past in areas which were outside the narrow Customs and Excise role, as we understand it. All videos are imported into this country and, obviously, as in the case of drugs, we were of the opinion in this House that the frontline defence in most of these areas of drugs, videos or whatever, which could have a detrimental effect on the people, should always be, and has always been as is exemplified in other legislation, the Customs and Excise. Giving them power here, if they decide to use it, is not wrong. Senator Ryan wants to ensure that the Customs and Excise officer would exert his power in all areas where there was no supply certificate issued. That is all he is asking for.
The next question we must ask ourselves is: is a supply certificate applicable to individual video works or recordings? I requested that the people who import videos should be registered as importers and when they distribute them throughout the country they should be so registered. The people who sell them wholesale should also be registered. That is desirable because we will then have a proper record of the people dealing in videos. I am not sure if a supply certificate is applicable to specific videos. If so, Senator Ryan's suggested amendment is legitimate in that all works included in a supply certificate could be presumed by the customs to be OK. It would then rest with the film censor if he needed to carry out the role that we have insisted he should carry out, by way of his intervention under this Act.
If that is not the case, Senator Ryan's concern in this area is legitimate. If all work is individually identified with a supply certificate, Senator Ryan's amendment is legitimate. If it is not all included, anything coming in which is not included in a supply certificate would automatically be suspect and I would expect any good, hard-working Customs and Excise officers to operate within the parameters we have laid down in other legislation for them. Senator Ryan has not been unreasonable in trying to ensure that there is no loophole, even though it possibly goes against the grain of what he would normally stand for in the area of censorship. Here he wants to make sure that nothing slips through unless it is already certified as being fit to supply.
I beg the indulgence of the House. On the last occasion when I spoke a second time I was chastised but I think both Senator Ryan and Senator Ferris have raised some points which perhaps need some clarification.
We should not get away from the fundamentals here. We have clear, overwhelming evidence that there are unsuitable and undesirable videos available in the country and that they are being imported. From time to time Senator Ryan keeps on surprising me. There are occasions when he accuses private enterprise and people involved in commercial areas of being capable of the most extraordinary things — how they avoid obligations and how they scheme to extract the last halfpenny from the taxpayer, or from the customer, or whatever. There is no way his alert mind can grasp the fact that somebody who is peddling nasty videos could dream of thinking up an arrangement whereby he could circumvent the laws of a particular country into which he wanted to sell his merchandise. We are endeavouring to give a power to the customs officer where he has a suspicion that something is not right. Let me give an example. I will have great difficulty here because Senator Ryan obviously has lost all grip on himself in relation to these matters. I will have to be extremely helpful and long winded and I may have to use examples which will be unnecessary for the rest of the House.
Take a situation where a supply certificate is given for a particular video. There may be a longer version of that video which is commonly known to contain works which would be objectionable. Senator Ryan would probably be the first person to say: "The shorter version was fine. Why should you prevent the importation of a video, the shorter version of which is quite acceptable?" Or is he arguing that in the area of censorship he talks about we should have an even more rigid system than we have? I would be the first to admit this Bill does not solve all our censorship problems. History has taught us that it is not a simple matter. Things change from generation to generation in liberal or other ways. He accuses the Government and members of the Government almost as if they are setting out to restrict the liberties of people. The fundamental issue is that throughout our society there are videos which are nasty, which are cruel in many areas, and we are trying to do something about them. We have accepted a good number of amendments. The longer the Senator is in this House the more successful he will be in making changes. He is doing himself a disservice at times in the way he accuses others of having ulterior motives. We may be at the back of the church and you may be up in the front row, but we claim to be your equal.
In other words censorship. As the Minister was given the indulgence of speaking twice at least——
An Leas-Chathaoirleach
The Chair has been over-lenient.
I am quite angry now. I am quite prepared to——
An Leas-Chathaoirleach
The only question, Senator Ryan, is: is the amendment withdrawn?
I want to register a formal protest. If you allow a Minister the indulgence of a second speech on Report Stage the least you can do is to allow me——
An Leas-Chathaoirleach
The Chair would like to point out that it allowed the Minister to reply to one or two points. Is the amendment withdrawn?
I am sorry. I thought the Minister was wrong. The Minister made some cheap swipes——
An Leas-Chathaoirleach
The Chair has been very lenient in this debate. For instance, our colleague Senator Ferris was allowed to speak after you had concluded. You cannot turn it into a Second Stage debate. Is the amendment withdrawn?
An Leas-Chathaoirleach
Amendment No. 18 has already been discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 19 has already been discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 20 has already been discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 21 has already been discussed with the first group of amendments.
An Leas-Chathaoirleach
Amendment No. 22 has already been discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 23 has already been discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 24 has already been discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 25 has already been discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 26 has already been discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendments Nos. 27 and 28 are related and may be discussed together.
This section relates to the preparation of the annual report by the Official Censor and the Censorship of Films Appeal Board on their activities in the preceeding year beginning with the year 1988. As this will be the first year of operation of this legislation the annual reports cannot be prepared until 1989. Accordingly 1989 should be substituted for 1988 in paragraphs (a) and (b) of subsection (1) of section 21.
There is no reason why I should object to this. Could I say ironically that perhaps the Minister should substitute 1889 for 1989 because we are moving back to the 19th century in the way this Bill is now drafted.
An Leas-Chathaoirleach
Amendment No. 28 already discussed with amendment No. 27.
An Leas-Chathaoirleach
Amendment No. 29 already discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 30 already discussed with amendment No. 1.
An Leas-Chathaoirleach
Amendment No. 31 has already been discussed with amendment No. 1.
On the question that the Bill, as amended, be received for final consideration, I understand I am in order in speaking at this stage. It needs to be put on the record that the Bill as amended is now a licence for racism, prejudice and bigotry. The Bill contained a prohibition on videos which would be likely to incite people to stir up hatred against any group of persons in this State on account of their race, nationality or religion. That has been deleted from this Bill because the Government, apparently, could not handle the question of sexual orientation as an addition to this and, rather than deal with that, they ducked the entire issue. Having raised the issue of incitement to hatred, or stirring up hatred against any group, they have now removed that prohibition and, in the process, in my view, highlighted the fact that, as a country, apparently we will tolerate the inclusion of making videos in our country of anti-Semitic, racist, religiously bigoted and religiously inflammatory material.
We have a promised incitement to hatred Bill in the indefinite future. The Minister was gracious enough to assure us that he was not too sure when it will be introduced, but it is promised. In the meantime in this country people can make videos which are anti-Semitic, which stir up racism and religious bigotry and we also have the capacity to do that in the printed field as well. We will rapidly become in the video area what we are already in the area of printed matter, the European publishing centre of extreme right wing propaganda. We are probably the only country in Europe now which allows that sort of material. Most of the material that is circulated of an anti-Semitic nature in the United Kingdom is printed in this country because we allow it to be printed. We are going to do the same now about video material because we took out one of the useful sections in this Bill which was the prohibition on incitement to hatred. I find it particularly repulsive and revolting that we have chosen to do that.
I choose to speak on the Bill, as amended, because the Bill, as amended, has lost one of its most valuable and useful provisions, a deliberate attempt to confront one of the problems of the late 20th century which is a tendency for racism and for anti-Semitism to begin to surface again. I find those particular manifestations of the late 20th century revolting and I do not think they should be justified in the interests of any spurious notion of free speech.
I was quite happy to welcome the Government's attempt and to attempt to nudge them in the direction the rest of the world is moving, particularly in the light of the AIDS problem, which is to prohibit discrimination against people on the grounds of their sexual orientation. The Government chose to refuse to confront that as they have refused to confront a number of related issues, not by arguing on the principle of discrimination and hatred against people on the grounds of sexual orientation, but by simply deleting the entirety of that subsection. I am sure it is not the Government's intent but the consequences of their action will be that anybody in Europe who wishes to make anti-Semitic, racist or religiously bigoted videos knows that at least there is one country which does not prohibit such activities. I find that most regrettable in a country that has enough experience of religious extremism to do it for the next 500 years.
I want to take this opportunity to thank the Minister of State and the Minister for Justice for bringing this legislation before the House. It is a very important milestone in the legislative programme of the Department of Justice to have a priority Bill such as the Video Recordings Bill initiated in Seanad Éireann and getting such a wide-ranging discussion. I am glad to say that during the course of the debate the amendments tabled were listened to very sincerely by the Minister for Justice. The Second Stage speechs were listened to, and this is reflected in the number of Government amendments brought forward.
Many innovations were introduced in this Bill. I hope they will become part of the legislative process and that we will not fail to enforce the provisions of this legislation. Far too often Bills put through the Houses of the Oireachtas are not backed up by proper enforcement procedures. The video nasties problem is so serious in this country that no responsible Government can fail to deploy the necessary resources to enforce the legislation initiated in the Seanad and which will go to the Dáil.
The registration and licensing of everybody involved in the retail and distribution of video material is very important in controlling those who are distributing and making this material. Also, it will be of net benefit to the economy that we now have the legislative framework to do something about the black economy in video recordings. With the controls and registration systems which have been implemented in this legislation I hope we will be in a position to act swiftly in the event of erroneous developments in that area.
We are still faced with the problem of wholesale piracy of video material. I urge the Minister of State to take an initiative in getting the Department of Industry and Commerce to reform the copyright area in order to stamp out the wholesale piracy and counterfeiting of video material. This is having serious consequences in many urban and rural areas. Before this debate commenced many Senators failed to see the impact it was having in every village and town. I hope Senators and public representatives generally will be more aware of the enormous damage to and the wholesale destruction of the minds of young people by the filth which has been distributed throughout the country. The Minister's task will not be fully completed until he has controlled this piracy and counterfeiting. I urge the Minister strongly to take on board that problem with the Minister for Industry and Commerce.
Finally, I record my thanks to the Minister for the constructive way in which he has dealt with this Bill. This makes one's contribution as a Senator worth while. As a new Senator you feel that you are getting some place by articulating your views from your experience on the ground. The constructive spirit in which all legislation is dealt with in this House has been well displayed in the Debate on the Video Recordings Bill, 1987.
The Labour Party published a Private Members' Bill which was laid before the other House. When the Government brought in this Bill——
An Leas-Chathaoirleach
Might I point out that on this stage discussion is confined to what is in the Bill?
Because of our Bill we took a particular interest in the Government's efforts in this area. The record will show that we played a role in endeavouring to ensure that the Bill, as amended, is fundamentally different from the Bill as initiated by the Government. I want to thank the Minister and the Minister of State, Deputy Smith, for having agreed to many of the suggestions made from this side of the House. The Minister of State was supported by his colleagues on the other side and by Senator McEllistrim who also saw the value of the amendments we were suggesting. You would know the Minister of State had been a Member of this House for some time because of the way he applied himself to debating the Bill with Senators, listening to their points of view and enjoying it immensely. Today's record will show how much he has enjoyed it.
No doubt about that.
I think Senator Ryan also enjoyed it. It is a pity we cannot make a video of the debate on this Bill. It would probably be banned by the other House.
People involved in the video industry have proved to be a very responsible body of people. Whether we listened to their submissions or otherwise on the proposed amendments, never once did they show a vested interest. They were concerned with the interest of the consumer and the interest of the responsible people involved in the video recording business. We are subjected at times to certain pressures from outside but I certainly welcomed their own view of how this Bill should be amended. We finally managed to achieve this because the Government, the Minister and the Minister of State were forthcoming. I hope we will carry out the proper investigation on the ground and that the proper application of the various sections of the Bill will really make it successful. We all want it to be a success.
Finally I want to deal with the last comments made by Senator Ryan. I cannot understand why the Government removed the section from the Bill which made it an offence to incite people to violence or hatred based on creed, religion, colour, race, and so on. I cannot understand why there was a Government proposal to delete that. It was the only division——
An Leas-Chathaoirleach
Senator, if it was deleted it cannot be in the Bill.
My understanding was that we were discussing the motion that the Bill, as amended, be received for final consideration and that we could make reference to changes that have been introduced in the Bill. If I am out of order I apologise.
We are considering the Bill as amended. I think it is appropriate to say that——
An Leas-Chathaoirleach
The question put by the Chair was that the Bill, as amended, be received for final consideration. The only debate on that is a debate dealing with the Bill, as amended, at this point.
I am not for a moment suggesting that we should do anything else but that. The Bill, as amended, is less effective because of the deletion by a Government amendment of the section dealing with incitement to hatred and discrimination based on creed and so on.
An Leas-Chathaoirleach
The Senator has a point but he may not discuss matters other than what is in the Bill at this stage.
I will not. What is in the Bill now arises from what happened on a previous day and I am upset about it. We will try to ensure that the Government will bring forward legislation covering the section which has been removed from this Bill. I am asking for an assurance that legislation on incitement to hatred will be introduced. We have already published a Private Members' Bill and we will be pushing it unless the Minister gives us an assurance that the matter is getting urgent Government attention. This Bill, as amended, is defective and that is a tragedy. It is defective because of the removal of that section.
I also welcome the Video Recordings Bill. On Committee Stage it was seen that certain amendments had to be made to the Bill and the Minister for Justice made those amendments. The Bill is very much needed in the country because some of the video films seen by some young people and by some old people were very undesirable. I hope this Video Recordings Bill will get a quick passage through the Dáil in the very near future.
Speaking on the Bill on Second Stage, the Minister for Justice said he expected that there would be general agreement on the need for a control system in relation to video films. He mentioned that there might be differences of opinion——
How right he was.
——on the best method of control and also on details of the scheme as set out in the Bill. No doubt he was aware, as I was, of the versatility and resources of this House. It is impossible, I suppose, to get 100 per cent agreement on everything.
There has been very general support for the need for a control system in relation to video films. Members of the House have made that clear in their contributions on the Bill. At the same time, there were suggestions that certain details of the proposed scheme could be improved and there were amendments on the question of a licensing system for persons selling video recordings or letting them out on hire. Some of the amendments as regards matters of detail were accepted, and some were not. Having studied the arguments made in favour of a licensing system, the Minister agreed to bring forward a series of amendments which built a licensing system into the Bill. Accordingly, the debate on the Bill has resulted in substantial improvements to it. There are, however, a few other points I would like to refer to specifically.
First, I would like to reiterate what was said by the Minister on 4 November last that it was not the intention that the Bill should serve as a vehicle for a fundamental review of all censorship law. The approach adopted in framing the Bill was that there are already two areas in which censorship is operated — censorship of publications and censorship of films. Generally speaking, the operation of censorship in those two areas has proved satisfactory and, accordingly, the Government considered that censorship of video films should be framed having regard to the general principles underlying the other two areas.
The second point I want to refer to is the concern expressed that the advent of censorship of video works could lead to a less liberal approach being taken by the film censor in his approach to cinema films. I do not accept that this will be the case. It is, of course, true to say the film censor can at present give a limited certificate to a cinema film and that this contrasts with the situation in relation to video recordings where only one type of certificate can be given in respect of video works. This situation in relation to video recordings resulted in Government amendments which were agreed to with general approval in Committee and which provided that the censor could be required to grant a supply certificate if he considered the video work was fit for viewing instead of fit for general viewing which was a requirement in the Bill as introduced. The Government amendments were expressly approved by Senators Hogan, Brendan Ryan and Ferris. The logic of the situation as proposed is that parents will have to be aware that they should exercise control over the video recordings being viewed by their children, whereas in the case of cinema films they can rely on their children not being admitted to a cinema where the film does not have a certificate for their particular age group.
I would like to thank all Senators for their contributions. I can tell Senator Hogan in relation to his anxieties about piracy that a meeting will be taking place between officials in the Department of Industry and Commerce and the Irish Video Film Association tommorrow.
On the points made by Senator Ferris and Senator Ryan in relation to the exclusion of the section on race, nationality and religion and the amendment which was proposed by Senator Norris and Senator Brendan Ryan adding in sexual orientation, we have gone over this ground before but I want to reject the assertion that the Government signalling that anybody who wanted to make racist videos in this country could now do so.
I never said it was deliberate or intentional. I said it was a possibility. I would not for one second suggest that and it is not worthy of you to suggest that I would.
I will quote from one or two references in the Official Report of 17 February 1988. At column 1476. Senator Ryan said: "...A Government... signalling that anybody who wanted to make racist videos in this country... could do so.
I am sorry I am taken out of context.
He said the rejection of Senator Norris' amendment to include sexual orientation was clear evidence that the Government approve either tacitly or positively and actively——
An Leas-Chathaoirleach
The Chair is very slow to interrupt the Minister. You are aware of the ruling of the Chair and the Chair hopes you will be conscious of those rulings in your concluding remarks.
Naturally I will be guided by the very experienced Leas-Chathaoirleach. Both Senator Ryan and Senator Ferris in their concluding statements referred to the way in which, arising from the exclusion of the particular section on racism, etc., the Government had now opened the door in a way which they found difficult to accept. I want to approach this point from two separate angles. First, if we did not have this Bill at all at present would either Senator be accusing the Government of opening those doors? The Bill deals with a particular problem and to suggest that, because we are not including this section, it does something to encourage developments in that area, which none of us will accept and none of us will stand over does not stand up. Senator Ryan and others have made a very distinct contribution towards ensuring that a Bill against incitement to hatred is introduced perhaps more quickly than it otherwise would have been. There is a broad consensus that this is not the type of Bill to try to cover the ambit of all of these problems. It requires its own specialised treatment. I think the Senator should feel honoured by the fact that he is making, in spite of himself, a contribution towards developments of that kind. I am sorry Senator Norris is not here to——
Is it in order for——
I want to refer——
An Leas-Chathaoirleach
The Chair is concerned. It has always been considered disorderly to refer to the presence or absence of any of our colleagues.
I am very sorry. He can be busily engaged elsewhere. I merely wanted to make the point that he referred to the fact that there was widespread legislation in this particular area all over Europe. He said he would supply the Department of Justice with the information which would support his claim — with the exceptions of Denmark and Norway where there was some minor treatment in the sexual orientation area. He presented nothing else. As far as the rest of Europe is concerned we are up there with the best and we will keep on improving. I am very sorry that once again I have transgressed against the rules. It is a difficulty which I will have to overcome. I would like to thank all of Senators for their support and assistance in our deliberations here. If the day ever comes when we do not have disagreement, the arguments for abolishing this place will probably be correct. As long as we have disagreements we are still very active here and I hope that will continue to be so.
My understanding is that I can speak on this Stage. I had better explain that the reason I spoke as I did on the previous stage was that I understood I could talk about the amendments. I wish to apologise if I was disorderly.
An Leas-Chathaoirleach
The Chair would like to point out that the Senator was correct. The Chair never makes mistakes, as you know but——
I appreciate that. I would be the last to suggest it.
I take it that I was correct also.
That is why I spoke twice, not to be troublesome but because I understood there was a difference.
I want now to confine my remarks exclusively to the Bill as it stands. I want to confine myself to one thing because I have a fear about one aspect which I will mention briefly. In spite of the Minister's re-assurance — and I am very glad he finally mentioned it on the previous Stage — I have a fear that the fact that the censor will now know that any film he approves as the Bill now stands, for display for a restricted certificate in the cinema is automatically granted a supply certificate as a video. In other words, if a film is approved for over 18s in a cinema, it automatically receives a certificate for supply in the country. That is the Bill now as amended.
I was very glad and I welcomed that at the time but like any other legislator I thought about it and my worry still is that that will have an impact which was not, I believe intended but which will in time still produce that impact. That is, that the censor will now adjudicate on a film for display in a cinema on the basis that if he approves it for restricted viewing in a cinema it will then become a video which is available for general distribution through video outlets. I appreciate it that the Minister addressed that fact but reassurances from Ministers are no substitute for legislation. I do not mean that in any personal way.
Legislation is what this country is run on not on the personal interpretations of either Ministers or, indeed, the Attorney General's office. Ultimately the courts will interpret this and the censor will have to do his best to interpret it as it stands. I still stand over my feeling that there is a reasonably fear that the unintended consequence of amending this Bill will be to inhibit the censor in his attitude to films for display in cinemas. The other matter is the technological questions which arise from that particular prohibition. If a film is approved by the film censorship for showing in a cinema with cuts — with something removed from it — which is one of the powers the film censor has, which film will than be given the video supply certificate? Will it be the cut version or the uncut version? This is a direct consequence of what is in the Bill. Which will it be, the cut version or the uncut version?
I have some understanding that cutting a video may not be as easy as cutting a film. Will we find that, because there is a one minute cut in a film, and it is then approved for adults, for over 18s, the same video uncut will be prohibited because it will not be the same work? Therefore we could have, as a consequence, many films on display in the cinema not being available as videos. Whichever way you work, you can have impacts of one on the other that I do not think have been fully thought out. I am sure our colleagues in the other House will pursue this matter further.
The other consideration in this Bill — and the one I find morally difficult to accept — is the fact that anybody can make a video in this country and not have to worry about supply certificates, etc., provided it is being supplied outside the country. I find the idea unacceptable that we will let people make videos here which would be absolutely unacceptable here, for instance, on the grounds of depicting cruelty and dismemberment of humans or animals which, incidentaly, is the core of what this Bill is supposed to do. It is supposed to deal with video nasties, not with erotic videos, not with videos which are deemed to be obscene or indecent in the sexual sense. It is to do with nasties.
Video nasties are videos which involve the excessive use of violence or, indeed, the excessive use of violence and sex intermingled together. I did not understand that we were as concerned about the whole flood-tide of what can be best described as erotic videos. I would invite the Minister or any Member of this House to go into any magazine shop and look at the last five or six pages of the number of magazines which deal with video reviews, as I said on Second Stage, one of which describes it as the lustometer in which various videos are assessed on a category of either one to ten or one to five on their lustometer in terms of how stimulating they are sexually. The point I am making is that while attempting to deal with that this Bill will either introduce into this country a censorship of magazines, because they will be inciting people to break the law in which case all of those magazines will be banned, or we will develop a large mail order business, so large that neither the Post Office nor the Customs and Excise will be able to censor it adequately.
We should have confined ourselves to the core problem which was those videos which use appalling scenes of human dismemberment or of violence against people or animals. That was what we wanted to do and that is what we should have confined ourselves to. There are other aspects of the Bill which go too far. I do not think we should allow people to make video films in this country which we, as a people, would find repulsive and say simply: "Because you are not going to pollute the minds of the Irish people with them, we are going to let you go ahead." It is quite true that obscene, erotic pornography is already illegal because the activities involved would be prohibited under the law. But in the making of films which depict explicit and brutal violance, given that by and large with the exception of the more appalling ones they are made by simulating them, there would be no offence. The offence is the actual production of a video which suggests, or encourages, or depicts appalling violence. We are going to allow people to make those.
I do not have any great views, under the normal film censorship laws, about discouraging people from making films. By and large, films made in this country are made by reputable film companies using large resources and they do not get involved in pornography. But video recordings, by the nature of the simplicity of the technology, can be made on a shoestring. We are, therefore, saying to people who want to make backyard pornography that they can do it, provided they ship it across the Border and sell it in Northern Ireland. If people want to make explicit violent videos on a shoestring budget, which can be done because video technology is so cheap, and ship them across the Border, there is no prohibition. We discussed this at length but that was the final conclusion we came to. If we believe these things are inherently evil we should prohibit them from being made here.
Similarly, I regret the fact that the Bill contains no prohibition on child pornography and the sale of such video recordings. I have no time and I believe there is no room for any value judgment about the word "obscenity". I appreciate that I have broken my promise and have slipped away from the contents of the Bill. I will stop there and then. I will not pursue that line any further.
My objection to the Bill is on two grounds. I think the impact of this legislation on cinema censorship will be far more profound than the Minister believes. I cannot argue with the Minister but I think he is wrong and I think his advice is wrong. Secondly, on the issue of video nasties, if they are as bad as we all agree they are, we should not allow anybody to make them here.
First, the broad principles which cover this Bill are those enshrined in the censorship of films and publications. I do not think Senator Ryan should have any fears in that regard.
Senator Ryan made a point about the same type of material being available to the cinema and in video form. There may be some doubt about that. As I understand the technology it is quite simple and practical from an economic point of view to cut a film for cinema purposes, but it is extremely difficult to do that in video form. In that sense you are likely to have a cut version available to film goers which would not be available in video form. It is a matter of technology which I do not want to go into too deeply but that is my understanding and the advice that is available to me.
Senator Ryan made other points which were threshed out here on the last occasion. I know he is quite genuine in the point he raised in relation to material being manufactured here which we would not allow to be presented to the public. Therefore, he sees a certain freedom. Our general view about that is that, for instance, material which would be for sale in France, or some other place, would be governed by their own regulations. We have no way of policing that, so that it is not an area where we feel a major contribution can be made.
I think I have covered most of the points raised. I thank the Senators for their support in the passage of the Bill.