Dáil Éireann díospóireacht -
Wednesday, 5 May 1976

Vol. 290 No. 5

Broadcasting Authority (Amendment) Bill, 1975 [Seanad]: Committee Stage (Resumed)

Debate resumed on amendment No. 6:

In page 3, line 26, to delete "two" and substitute "four, two of whom shall have professional experience in broadcasting,".

—(Deputy T.J. Fitzpatrick(Dublin Central)).

Ruairí Brugha

On the adjournment the Minister was replying to the case made by Deputy Fitzpatrick on amendment No. 6. The amendment is to increase the number of members to the commission to be appointed by the Minister to four plus the chairman, rather than two plus the chairman. Subsection (2) of section 4, which refers to the two other members to be appointed by the Minister, does not refer in any way to their qualifications. As it stands, a Minister could, in fact, appoint anybody who might, for one reason or another, appeal to a Minister but who might not have any knowledge or experience of broadcasting. Indeed, he could quite easily be somebody who does not like television and does not have a set in his home, as I understand the Minister for Finance does not. The point I would make is that somebody should be on this commission who has an interest in broadcasting.

While I am quite sure that the present Minister would always keep this in mind, there is no guarantee that his successor, or any successive Minister, might. The amendment is a reasonable one, and the Minister can appoint more than two members to the commission if he wishes to do so. Possibly from the Minister's point of view it is preferable to have it that way. As the section stands the members mentioned here need not know anything about broadcasting. I would not have any worries as far as the present Minister is concerned, but one could have a situation where unsuitable people could be appointed under this subsection by a Minister for Posts and Telegraphs. I do not know whether the Minister has any way of getting around that. It is not a very likely occurrence but nevertheless it is in the hands of the Minister. The qualities required are special qualities. They are not necessarily experience in broadcasting, as referred to by Deputy Fitzpatrick, but it can be experience about broadcasting. For example, a former member of the Authority like myself could be suitable, having had the experience of seeing both sides of the problems. I would urge on the Minister, or any future Minister, that the type of person to be appointed to this commission should be a person with experience about the subject.

Minister for Posts and Telegraphs (Dr. Cruise-O'Brien)

It is true that under the section as it stands a Minister could, in theory, appoint anybody. The same applies to the RTE Authority and to State boards generally. We have to assume that any Minister responsible to this House will be concerned with the suitability of his appointees for the task which is to be entrusted to them. As the actual appointment will be made by the Government in each case, and if any Minister should wish to make eccentric choices such as hypothesised for the sake of argument by Deputy Brugha, somebody without any interest at all in broadcasting, somebody who never watches television or listens to radio, the Government would tend to correct that. So not merely this Minister but Ministers for the future, whatever side they are on, ought to have a reasonable amount of elbow room. Any reasonable Government will want to appoint people who would do a reasonable job and who would also command public confidence. Should any Minister or Government fail to do that, criticism in the Dáil would be quick to correct that. I respect the intention behind this amendment but I am afraid I cannot accept it.

Mr. T.J. Fitzpatrick

(Dublin Central): I have listened to the Minister's explanation as to the difficulties he may encounter. Our reason for putting forward this amendment was to get a broader spectrum of opinion within the commission. Quite obviously this commission will have a great deal of work to do. I have the height of admiration for the people doing this job at the moment. The Minister mentioned last night that they get no remuneration. This is something that may require consideration at a future date to ensure that people will be in a position to give of their best. Remember, we are limited somewhat in numbers and the Minister mentioned difficulty in getting experienced people to act on a committee such as this. The work is of a technical nature. Considerable time must be spent looking at programmes, such as the programme on the proposed Dublin Bay oil refinery. That would be of a very technical nature. There is the point that a limited number might find it difficult to hold a sufficient number of meetings.

The solution to complaints should not be delayed. There should be a finding as soon as possible. If one or two members had difficulty in attending meetings there could be long delays. I believe a broader spread is desirable to ensure the work is done effectively and that the burden is not too heavy. Despite the Minister's argument I believe it is desirable that one or two members should be professional people. Deputy Brugha said the Minister would no doubt consider the qualifications of appointees to ensure they had some knowledge of broadcasting. That would be most desirable. I would not like the commission to consist of people who were all engaged in broadcasting because possibly that could lead to bad decisions.

The Minister argues that the amendment would tie his hands and he might have difficulty in recruiting personnel. I appreciate that. The work is voluntary and I wonder how long we can go on expecting people to give up their time and energy without some form of compensation. The group operating at the moment are doing their best. The Minister said they had received more complaints than any broadcasting authority probably in western Europe. I hope I am paraphrasing the Minister correctly. Could the Minister tell us why there has been such a large number of complaints? He mentioned ten. Of that there was only one which went against the Authority. What is the procedure in that eventuality? Do the Authority apologise? We put down this amendment in the genuine belief that two would not be effective.

Dr. Cruise-O'Brien

I am happy that the Opposition spokesman has been kind enough to commend the members of the present complaints committee for their work. That commendation is very well deserved and it will be helpful both to the existing committee and to the commission to come in discharging their duties and feeling they have public support behind them and respect for their impartiality. If I have not made it sufficiently clear already I should like to emphasise now that I am in agreement with the purpose behind the amendment. It would be desirable to have a larger commission. Possibly five would be the optimum. I also agree that where possible, we should have some members with broadcasting experience and when constituting the commission I shall aim at meeting these points. What I am seeking to avoid is this being made mandatory on the Minister because that would cramp the Minister's choice since at any given time five thoroughly suitable people might not be available. The Minister might possibly have misgivings about one or other of the extra two appointees. They might not be free to give enough of their time to the committee. I shall take account of what has been said when I am setting up the commission and try to meet the points made but I would seek to avoid this being made mandatory on the Minister.

Amendment, by leave, withdrawn.

Mr. T.J. Fitzpatrick

(Dublin Central): I move amendment No. 7:

In page 5, between lines 5 and 6 to insert a new paragraph as follows:

"( ) A complaint that the Authority failed to comply with the requirements of section 17 of this Act inserted by section 14 of the Broadcasting Authority (Amendment) Act, 1975.".

I understand that if the Authority fail to comply with the provisions of section 14 a complaint cannot be made to the complaints commission that the Authority have failed to live up to their requirements. Section 14 provides:

In performing its functions the Authority shall in its programming—

(a) be responsive to the interests and concerns of the whole community, be mindful of the need for understanding and peace within the whole island of Ireland, ensure that the programmes reflect the varied elements which make up the culture of the people of the whole island of Ireland, and have special regard for the elements which distinguish that culture and in particular for the Irish language, (b) uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, and

(c) have regard to the need for the formation of public awareness and understanding of the values and traditions of countries other than the State, including in particular those of such countries which are members of the European Economic Community.".

This section is also incorporated in the 1960 Act. It is, of course, of vital importance. The Minister will correct me if I am wrong, but my understanding is that, if the Authority fail to live up to their requirements, the public will not be in a position to make a complaint to the proposed commission. I believe the public should be in a position to complain. The provisions of section 14 are vitally important and must be implemented by the Authority and so the public should have the right to complain to the proposed commission that this section was not properly upheld, as it would have as regards any other complaint. This complaints commission are the appropriate body to which the public can refer their complaints generally. That is the reason we have put forward this amendment. It is my interpretation of reading the section that the public will not be at liberty to complain to the complaints commission regarding this section.

Dr. Cruise-O'Brien

A similar proposal to this was also made in the Seanad—the Seanad Debates for 4th June refer—and I found it necessary in the Seanad to resist this proposal for reasons which I think are strong. It is important that the Bill should not contain provisions which might result in an encroachment by the complaints commission on the legitimate autonomy of the Authority in regard to general programme. When the idea of the complaints committee was mooted, later by the commission, one of the points which was made by people who had some doubts about the wisdom of this move was that it might result in the setting up of a sort of super-authority which would overrule the existing Authority and lead to confusion.

I was anxious in the preparation of this Bill, particularly this section, to avoid anything of this kind. I so assured the Seanad where misgivings on that point were expressed. I agree that a conflict of jurisdiction would be most undesirable and give rise to uncertainty about the control of broadcasting, an area on which uncertainty is very undesirable. The proposed amendment provides that the commission could investigate complaints alleging failure by the Authority to comply with the general statutory duties laid down in section 17 of the Act, as will be amended soon. This, in my view, would involve a significant broadening of the functions of the commission to cover general programming as distinct from complaints about individual programmes and would unduly erode the Authority's autonomy in such matters. I regret therefore that I cannot accept the amendment.

I see the usefulness of the committee, particularly in the field of the responsibility of the Authority in relation to impartiality and in relation to individual specific programmes. If a complaint were made that this or that programme was not balanced, was not impartial, as it ought to be—the kind of criticism which Deputy Lalor expressed here in relation to various programmes yesterday—the committee would be empowered to have a look at that but would not be placed in the role of a sort of overall court of appeal in relation to the Authority generally to see that the Authority were or were not carrying out their responsibility. I think that division would be undesirable.

Ruairí Brugha

I do not quite understand the point the Minister is making. I can appreciate that complaints from the public about individual matters can be more easily dealt with by the commission and that if you get involved in the broad general side of things it can create problems for the Authority, the Minister and the commission. Nevertheless I fail to see why the commission should not have some function in relation to the general expression of what one would like from RTE, as set out in section 14.

It seems to me that if a person is offended by something said in a programme which is contrary to, for example, subsection (b)—to uphold the democratic values enshrined in the Constitution—if something contrary to that is put out in a programme and a member of the public complains to the commission about that, the commission have no right to take up the matter. If you find on some particular programme that somebody makes a very strong attack either on our traditions or on those of other countries, if I understand the Minister rightly this apparently is no concern of the complaints commission. If that is the case, could the Minister tell me whose concern this would be? This is an important matter.

Dr. Cruise-O'Brien

There seems to be some misunderstanding here. Essentially, the present committee's task is and has been to decide in relation to individual programmes about which there is complaint, if there has been a breach of the Authority's responsibility in relation to impartiality and balance. In fact, this covers in relation to individual programmes pretty well everything that Deputies could wish to see covered. For example, in the cultural area, if a programme were to be put on which was regarded as offensive to people active in the Irish language movement, their view would undoubtedly be that this was not merely contrary to the general responsibilities about culture but also wrong in relation to balance. Complaint would only lie if a programme was felt to be unbalanced, not giving due expression to all significant points of view, so that in any area where any interest could be judged to be unfairly treated, the complaints committee could be seized of that. I feel that gives them adequate power without requiring them to set themselves up as judges of whether in general the Authority are discharging the policy responsibilities properly enjoined on them. That is the right way of approaching this matter. It leaves the committee with very wide scope for their investigations because you cannot envisage any programme that could be regarded as seriously wrong if it complies and is felt to comply with the responsibility for balanced impartiality.

Ruairí Brugha

Is the Minister saying that the amendment here is in relation to a complaint that the Authority failed to comply with the requirements of section 17 is not necessary?

Dr. Cruise-O'Brien

That is right.

Ruairí Brugha

That the commission can act or make recommendations or pronouncements without this amendment?

Dr. Cruise-O'Brien

It has to be seized of a complaint first. But we must assume that if there was felt to be a violation of that then there would also be a complaint about failure of balance.

Mr. T.J. Fitzpatrick

(Dublin Central): We have heard a good deal recently on the line that probably not sufficient time is being given to Irish language programmes on television. That would not properly form the substance of a complaint for the commission?

Dr. Cruise-O'Brien

That is right.

Mr. T.J. Fitzpatrick

(Dublin Central): That is just one case that springs to mind: the question of balance would not arise there. Deputy Lalor pinpointed certain programmes last night as examples of cases where proper balance was not maintained afterwards. We are arguing that section 14 contains the whole basis of our society and culture, defends our Constitution, and that is why it is enshrined here and places the obligation on the Authority to respond to these calls. It will be frustrating for a viewer conscious of what the Constitution and culture is all about if he finds these are not taken into consideration in programmes. To whom will he be able to complain that section 14 is not being adhered to: to the Minister, or to the Authority? The Authority will be judges of their own actions. The whole purpose of the complaints commission is to ensure that they are apart from the Authority and the Minister and can act impartially and independently in deciding if the principles enshrined in section 14 are upheld by the Authority and generally by RTE.

I can see the confusion and frustration certain people will experience if they find that section 14 is not being adhered to. I am not saying that at the moment these considerations are abused in any way. We are talking about ensuring that in legislation here we make proper provision so that people will have a vehicle for the complaints they are entitled to make if they find there is a breach of section 14 by the Authority. These matters are of vital interest to certain members of our community who are always concerned to ensure that valuable tradition enshrined in our history is upheld, prepetuated and strengthened if possible. They are justified in asking that we ensure that they have some commission to which they can complain if the Minister and the Authority fail to live up to their responsibilities. I know that the Minister is finally responsible, but the Authority are entrusted with the day-to-day running of broadcasting. If they fail to respond to the requirements in this section it is desirable that people concerned about this can forward complaints to a complaints commission.

I believe it is essential some such provision should exist. Questions of morality and other matters can come into this section if we look at it in a broad sense and we must ensure that our traditions and way of life are upheld. We want people to be in a position to be able to write to the complaints commission and say if they think it is the case that the whole thrust of broadcasting—not any particular programme—is not responsive to section 14. The public are entitled to know whether the complaints commission could adjudicate or not, whether they could say: "We have received this complaint from a member of the public" and draw the attention of the Minister or the Broadcasting Authority to it. It is on that basis that we thought an amendment like this desirable.

Dr. Cruise-O'Brien

I am grateful to the Deputy for clarifying a distinction which I fear I failed to bring out adequately in my earlier remarks. It is the distinction between a concern with individual programmes and a concern with total programmes. I cannot imagine any individual programme which can be faulted if it is not faultable on grounds of breach of impartiality. I think we would all agree on that. The question then is whether the complaints committee should have power in relation to total programming policy. Should they be able to say: "This station is not giving enough, say, to Irish language programmes and are thereby in default in relation to their responsibilities under section 17 or section 14 (5) or whatever it is." There may be a view that that should be done and that is the view behind this amendment.

My view is that to give the commission such regulatory powers would render the position of the Authority virtually untenable. It would be setting up a tribunal which would be above them and would overrule them, not merely tell them as the present committee does in relation to a certain programme: "You went off the rails there; try to correct that". That is a modest power but a significant and useful one. I do not think it necessary to say that, instead of that, the complaints commission can say the Authority are not discharging their general responsibilities under this or that section. I shall try to confine myself in relation to this complaints committee to what is necessary and, as I thought, necessitated by the fact that in relation to impartiality the Minister of the day should not be the final judge, as impartiality is something that requires another judge— not the Authority and not the Minister.

But, in relation to public policy other than impartiality, I think the Authority have certain duties enjoined on them by law in the present section 17 and the new section 14 (5) and that if they are deemed not to have discharged those responsibilities entrusted to them by this House, then they are, first of all, open to criticism themselves and secondly, if they are felt not to respond to that criticism and to persist in what people would regard as failure to discharge their statutory duties, then the person responsible inescapably is the Minister of the day and Deputies opposite him, whoever they may be from time to time, can take the matter up here and say: "You are not doing your duty as Minister because the Authority you have appointed are not carrying out their statutory duties and you are doing nothing about it". That is where the buck should stop in relation to that matter, which is a matter of public policy and not one of fine individual judgments about partiality or impartiality, which is something I believe should be taken away from the Minister for his benefit and the benefit of the public.

That is the distinction I have sought to maintain here. I am afraid I am still convinced that it is the right one. Any RTE Authority that this House might set up would be likely to agree with that view, that their position would be made untenable by turning the complaints commission into a sort of permanent commission of inquiry into whether they are doing right or wrong.

Mr. Lalor

Why turn down this amendment for the reason just outlined by the Minister and include 18B (c), the subsection which passes on to the commission the responsibility of ensuring that section 17 is complied with? Having listened carefully to what the Minister said in that regard I claim that the argument he is using to shoot down this amendment could be used equally to rule out the inclusion of (c).

Dr. Cruise-O'Brien

The answer is that this is "a complaint that by broadcasting matters so specified, the Authority failed to comply with the requirements of section 31 (1) of this Act...." This is intended to be something that envisages a complaint about an individual programme, which is the area in which I see the commission acting: in a judgement in relation to an individual programme, not on overall programming policy. That is the distinction which Deputy Fitzpatrick brought out and for which I thanked him. That is why this can come in. But the wider responsibilities which are necessarily involved in this amendment, I imagine Deputies opposite would agree—because it is a very wide responsibility; general failure to comply with the requirements of section 17 of this Bill—are not desirable for the commission to be asked to undertake.

Ruairí Brugha

Might I take it a little further with the Minister? I understand what the Minister has in mind, that it should be specific complaints about specific programmes. I can appreciate the danger of the commission getting involved in controversy on broad policy. At the same time it seems to me that a commission of this kind sitting fairly regularly throughout the year, without getting into too much controversy about any particular item, would be able to build up a broad picture of how the station was performing its functions under section 14.

If I might turn for a moment to subsection 18 (c) (1)—I thought the answer to what I wanted was here but apparently it is not—where it reads:

As soon as may be after the end of each year, the Commission shall make to the Minister a report of its activities during that year and, subject to subsection (2) of this section, the report shall contain such statements...

There I thought the commission would be able to report in a general way to the Minister. I think it is probably that aspect Deputy Fitzpatrick has in mind rather than specific cases. The objective is that the Minister and RTE should have the value of the general conclusion that might be arrived at by the commission after, say, 12 months experience, which would be useful and does not have to point at one specific infringement, but can be a guide both to the Minister and to RTE. I am very much opposed to the idea of having a sort of witch's hunt on one particular item. But I am concerned about the general trend that one feels, according to one's view, may not be good, under the general headings in section 14, say, cultural, democratic and so on. If the Minister could see his way to allowing the commission to report in a general way to him once every six months, or every year, that could be advantageous and does not have to involve the commission in a collision with RTE at all.

Dr. Cruise-O'Brien

The points which have just been made are entirely reasonable. It is true that the commission's findings in individual cases might build a broad picture; also they might not. It seems to me that if RTE by and large are doing their job—as I believe, by and large, they are—then the commission's findings would present a more or less random pattern—that perhaps here and there they had gone off the rails. It is not a very valid metaphor but they would not be going off the rails in the same direction all the time. But where any Minister would have cause for concern, and the House also, would be if the commission's findings in individual cases showed a tendency towards lack of balance always in a given direction and that balance not corrected after a set of findings by the commission. That would show that there was something wrong either with the commission or with RTE and that situation would need to be looked at very carefully. Such a picture has not emerged to date, but obviously any Minister would watch for the possibility of its emergence and it would be only reasonable that he should.

The commission are obliged to make to the Minister a report of their activities during the year. I would not put any limitation on that report. The commission should be there to report to the Minister on all aspects of their activities they feel relevant to their responsibilities and to him. One of those would certainly be that, if a significant pattern appeared to be present in a series of individual findings, the commission could very properly draw attention to that. There their responsibilities, as it were, in relation to general programming should end; that is to say, any of their findings should follow from study of individual complaints and individual programmes. If one has that, then the line will be properly drawn between the Authority and the commission.

Mr. Lalor

There has been a very reasoned discussion on this amendment. I will have a considerable amount to say on the section itself. I still find it difficult to be with the Minister. The Minister speaks in terms of an annual report. He used the metaphor of the Authority, or some of its members, not going off the rails in the one direction all the time. Then the picture was painted that, arising from decisions of the commission, guidelines would be set up and that it should be on them that there would be a spate of complaints in connection with similar items. I accept that, but there I am speaking in a general way.

In relation to the amendment we are discussing, the Minister called the new section 14 loosely the cultural section, and I accept that. We must accept the fact that this commission will not report to the Minister or to anybody else on the general overall conduct of the Authority. They will simply report to the Minister at the end of the year on the outcome of their consideration of complaints. In the unlikely event of there not being a single complaint over a 12-month period, this commission will have nothing to do. If this is so, credit must be given to the Authority. Section 14 amends section 17 of the Principal Act, and section 17 amends section 31 of the Principal Act. The amendment under discussion deals with section 14. In section 17 the Minister spells out that the Authority are to prevent any incitement to crime. I would at this stage loosely describe section 17 as the crime section and section 14 as the cultural section.

Subsection (c) gives the committee power to investigate complaints that a programme or a series of programmes broadcast by RTE were in contravention of section 17. I accept that the Minister considers it necessary to give the commission power to investigate such breaches. He says that the commission should not be given the responsibility of investigating complaints of breaches of section 14. There is a certain amount of justification in that. He says the Authority's responsibility should be to ensure that there is not a breach of section 14, and then this would not arise. I will try to counter that argument by saying that the Authority should be more adept at seeing that there is no reason for any complaints about breaches of section 17. I am not saying that section 17 is not as important as section 14. Both sections are equally important.

Section 17 attracts most attention at the moment because of a series of complaints in recent times. It arises from the possibility of a "provo" being on a programme and objection being taken to incitement to crime or an opportunity being taken to incite to crime. Section 14, and ensuring that we do not have breaches of that section, is in the long term more important.

I agree with the Minister that the Authority have the responsibility of ensuring, without reference to the complaints commission, that both section 17 and section 14 are complied with. From our experience of the operation of RTE over the years we know that, even with the best will in the world, the most responsible Authority will find that their wishes have not been fully carried out. I have not read the Seanad debate. The Minister said that this proposal was made in that House. I find it difficult to envisage, as the Minister is doing, how we could have something which is in breach of section 14 but still covered in the impartiality and balance section.

Culture is mentioned a couple of times in this Bill. I would hate to have to go to the library to do some research and come into this House, as a famous person did before, with a pile of dictionaries to give a definition of culture.

I do not know how strongly Deputy Fitzpatrick will press this. I give credit to the Minister because he has no difficulty in spelling out his reasons. He has a wonderful gift of words and a capacity to explain points. I hope I am putting my point across. I find it hard to understand why it is clearly spelled out that breaches of section 17 are covered while breaches of section 14 do not need to be covered.

Dr. Cruise-O'Brien

That is a very interesting point and I will come to it in a moment. I should like to make one or two preliminary points on the earlier part of Deputy Lalor's remarks. One point in particular I would like to clarify. He refers to the possibility of a spate of complaints. There is of course such a possibility and such possibilities. I spoke earlier of the committee's findings possibly building up a broad picture and, if things should go wrong, indicating a picture of imbalance. This is a hypothesis of something that might occur.

That would only occur not because of a spate of complaints but because of the significant number of complaints which this quasi-judicial body would find to be well-founded. A spate of complaints itself may prove nothing. The country is full, as all democratic countries are, quite legitimately, of lobbies of different kinds and tendencies who may complain in a given area, but their complaints may not be well-founded irrespective of what kind of lobby they are.

I referred earlier to the report and Deputy Lalor made the point that if there were no complaints there would be no report or a very blank report in a given year, and that is so. What we have to assume is that if no complaints are received then either nothing is seriously wrong or the bodies and individuals who ought to be maintaining vigilance in given areas are not being as vigilant or active as they should be. I would think, if experience to date is anything to go by, that certainly if anything were going seriously wrong in terms of general policy, the report would be likely to show that.

The main point that Deputy Lalor makes is a very interesting one, that there is a difference between the committee's responsibilities in relation to what he calls the crime section and what you might call the cultural section, and this is true. Whereas the committee have no specific function in relation to the cultural section other than their function as regards balance and impartiality, they have a specific function in relation to the crime section. This is true, and the need for this requires to be established here, and the Deputy is quite right to bring out the point.

The distinction that has to be made is this, and I come back to a point I made earlier: if a proper separation of functions is to be observed between the commission on the one side and the Authority on the other, then the commission must be limited to the study of individual complaints about programmes, while having also the possibility of building up from the results of those individual complaints, if necessary in their reports, a wider picture. However, they are initially concentrated on individual programmes and not on the general policy decisions of the station.

In relation to individual programmes, the crime requirements and the cultural requirements suggest different things, in that the cultural responsibilities of a broadcasting station are essentially something diffuse in which there are different characteristics and aspects. Deputy Lalor acknowledged it was a very complex and difficult concept. These have to be balanced, and judgments in cultural matters would be of two kinds: (1) was an-individual programme badly balanced or not? The commission have the power to come in on that; (2) by and large, is the station discharging its cultural responsibilities? The commission do not have that power and I suggest should not have that power.

Then the question arises quite rightly if they have not that power why should they have power of intervention in relation to incitement to crime? There are two reasons which lock together. One is that if culture is complex and diffuse, incitement to crime is specific and concentrated, that is to say, an individual programme could contain that and furthermore could contain it while being capable of being held balanced but falling short in relation to the specific responsibility. To take a grossly oversimplified case, if on a given programme one person says it is all right to murder people in certain circumstances, and another person says no, that on the whole he thinks murder is wrong, that programme might be considered all right in point of balance but it would not be all right in relation to incitement to crime, because incitement to crime is wrong whether there are other people there to refuse it or not. That is the point of introducing a specific responsibility here into this, because for once the balance requirement is not enough. We shall be dealing with the section on incitement to crime and I am using that phrase as shorthand for everything that is covered by that section.

That is why we have judged it desirable to give the commission specific functions in that area while not giving them specific functions in the more diffuse cultural area. In that latter case we do not think they can be given functions without setting themselves up in judgment over the whole policy control area of the Authority and becoming indistinguishable from a super Authority, which, as I have tried to indicate, I think undesirable and that any authority would consider undersirable.

Ruairí Brugha

Would the Minister not accept that, the commission having been established, they are gaining experience over the years and are getting a better picture than, say, anybody on either side of this House? Could an annual report not have the same value as, for instance, a report made by the Central Bank? Deputy Lalor has said section 14 is excluded, and the Minister indicated to me a moment ago that the commission could make general observations when they were reporting once a year. The value of general observations is that the commission could indicate a trend that was undesirable, without, as I said earlier, having witchhunts, for instance snide remarks such as are made on television or attacks on particular groups we are sensitive about like music, culture, language and so on. We do not want to have little storms blowing up in RTE every now and then because somebody puts his foot in it or somebody has a particular animus and wants to make a name for himself on television.

On the other hand, if the Minister does not ask the commission to give their general view at the end of each year he will be losing valuable, fairly objective information, I would imagine, from a commission of this kind whose viewpoint could be transferred to the RTE Authority, not as an assault on a particular item but as a general picture which may help the Authority and the programming staff on RTE. If a controversy builds up about a particular item, one cannot make progress because people take up positions. In RTE they take up positions defending whatever they have done, because it is natural to defend the people you are working with.

On the outside then, as we have seen in the past, you have people rushing in from all sides who want to attack and create controversey. This sort of thing will probably always be with us. Apart from doing their day-to-day and week-to-week job of investigating individual complaints, I should like the commission to present the Minister with a general consensus view of what the commission's conclusions are, as to how the Broadcasting Authority are fulfilling their function under sections 14 and 17.

Dr. Cruise-O'Brien

The remarks of Deputies opposite generally will be helpful to the complaints commission in approaching the question of their annual report. I agree generally with what has been said, subject to some qualifications I will come to in a moment. I certainly would not wish the commission to feel cramped in any way as to their report. That is to say they should feel free to report to the Minister any matter which they think arises out of their deliberations and out of their consideration of the complaints that have come before them and the response which they have received from RTE in the course of those inquiries. At the same time, it has to be seen that they are a complaints commission and their whole proceedings are joined very closely to complaints they receive within a given period. It is only on these complaints that they can proceed at all, so whether they can have a very wide view of what is going on depends to a considerable extent on the flow of complaints and the nature of them. Some complaints, of course, can be very trivial.

However, we have to bear in mind that if there is anything seriously wrong in the conduct of the station at any given period, whatever is wrong must surface in individual programmes and in lack of balance. If those two things do not happen, if it does not come out in programmes and if it is not visible in terms of lack of balance, it is hard to see that anything seriously wrong could be occurring. One has to assume also a certain amount of vigilance on behalf of the public in matters of great public concern so that if that is happening the complaints commission will, as it were, have enough grist to their mill to grind out something significant. However, I would like them to repeat that I would wish the commission in their reporting to take note of what has been said here and not to feel that any area is excluded from their report if in relation to that area the complaints they have received and the reaction of the station to them seem to show the need to report regarding dissatisfaction in a given area which might be the section with which they are concerned.

Mr. T.J. Fitzpatrick

(Dublin Central): I do not want to hold up the House much longer. In putting forward this amendment, I believe that section 14 is a fundamental part of the Bill. I am not a parliamentary draftsman but I believe that the person drawing up a Bill must have some central point in mind. It is natural to select the basic traditions of our Constitution and try to construct a Bill around them. We have sections 14 and 17 and section 3 on impartiality. Fundamentally, this is a very important part of protection of our traditions and culture. I am not going to go into that now but we believe the public could feel frustrated by not having some vehicle whereby they could give vent to their feelings and voice their protests if they feel that this section is not being upheld.

The Minister stated that he did not want to confine the operations of the commission. I certainly do not want to see the commission being inundated with complaints on trivial matters every day. I do not want to see the Authority being brought to heel over very minor matters. That would destroy broadcasting. But it is in case of something fundamental or some important programme which was not properly balanced that the complaints commission would function. I thought when this amendment was drafted that the people should at least be in a position to be able to complain to the commission. Whether they are to adjudicate on it or not I am not sure, but they should be in a position to write to the complaints commission and say: "In my opinion certain matters contained in section 14 are not being upheld." I do not know whether the commission refer these complaints and their recommendations on them to the Minister afterwards. It may help the Minister and the Authority that the public have some body to complain to apart from the Authority. The Authority are the people responsible but, as the Minister said, they cannot be their own judge on matters such as this; we must get a third person. It may in the long run contribute to a healthy type of broadcasting situation where we have this third party. I would not like to see them in a position to direct the whole thrust of broadcasting. None of us on this side of the House ever envisaged that that should be their role.

There are people who are very concerned regarding the protection of our culture and if they see that this is being overlooked on television or is not being given proper coverage— they may not be able to pinpoint any programme as regards balance— they could look at section 14 and say: "In our opinion a fair response and fair coverage are not being given to this section." If they are in a position to make complaints to the complaints commission and if the complaints commission in their report at the end of the year noted it and sent it on to the Minister, it may be of help.

Amendment put and declared lost.

Mr. T.J. Fitzpatrick

(Dublin Central): I move amendment No. 8:

In page 6, lines 52 to 54, to delete subsection(12).

The Minister referred to subsection (12) but not on the same lines I am proceeding on at this stage. It is a question of allowing costs and expenses. The Minister has already adverted to the fact that this is a voluntary commission and is not entitled to any remuneration. That is why I am putting forward this amendment. The commission will find it necessary at times to ask certain witnesses to attend and it is possible that such witnesses will have to travel to the city and lose pay as a result. With this in mind I thought the commission should be in a position to allow some kind of costs. In this section the Minister has prohibited the commission from making any type of such allowance.

To do their job effectively and get the co-operation of certain witnesses it would be necessary for the commission to be in a position to defray certain types of expenses. A provision in this section for compensation to such witnesses would help the commission and contribute to getting the proper people to attend for the hearing of complaints.

Dr. Cruise-O'Brien

It is important to preserve a distinction here. What we envisage in the complaints commission is that while one would hope that its members should have, as the members of the committee have, a judicial attitude and although in that sense they can be regarded as a quasi-judicial body, they are not a court and we do not intend that they should be a court. We would like to make that distinction absolutely clear. I do not therefore consider it either desirable or necessary that the commission should have the power to pay the costs or expenses of parties involved in their proceedings because we envisage these proceedings as they have been up to date, and as they are in cases of similar bodies in other countries—for example, Sweden. The proceedings are quite simple and relatively cost-free. We would like them to stay that way.

The four main parties one would expect to be involved in these proceedings are the complainant, RTE, advertisers and, in some cases, the person against whom a complaint is being lodged who may be, and presumably would be, a member of RTE but whose interests might diverge in certain conditions from those of the station. The complainant's expenses should be minimal. There is no question of the complainant having to be legally represented or to present his complaints personally to the commission; a letter is all that is needed. This is the case with equivalent bodies in other countries.

In the case of RTE there would be no point in the commission bearing their costs because the money would eventually come from the same TV licence fees; there is no distinction. It would not be a great hardship on any advertiser who wishes to present his case to the commission to pay the costs involved which would be likely to be minimal. In the fourth category, the case of an RTE employee being given access to the complaints commission to argue his case during his normal hours of employment, I understand that RTE would not withhold pay for the period of absence involved. Accordingly, I see no need for statutory provisions for payment of expenses by the commission. If we deleted the relevant subsection and created an expectation thereby that costs and expenses might be payable, it would be undesirable. I regret that, after due consideration, I cannot accept this amendment.

Ruairí Brugha

The Minister said that complaints would be by letter and I should like to know if that will be the only type of complaint that will be entertained by the commission? If a person in Donegal or Cork wishes to make a complaint can that person only make that complaint by letter? Can it not be done personally?

Dr. Cruise-O'Brien

As far as I know there is nothing to prevent it being done in person but a letter would be the normal way. I am sorry, it is provided that the complaint should be in writing; that is to say, that it is required in letter.

Ruairí Brugha

And it is not envisaged that the commission would like to question the person? The only question I am concerned with in connection with the amendment is the possibility of travelling costs and overnight stay.

Dr. Cruise-O'Brien

I am speaking a little at large on this but we have to bear in mind that when we are speaking of a complaint regarding something broadcast we are not in the area where one often is in relation to ordinary litigation where people are testifying about things that happened in unknown circumstances privately in the past. The complainant in this case is complaining about something that has been broadcast to the public and therefore the matter about which he is complaining is known. Essentially, and presumably in most cases, there would be a record of its being broadcast. It is hard to see in what circumstances it would be necessary to bring him along personally. He cannot testify to anything that hundreds or thousands of other people had seen or heard. All he has to do is to ask the complaints committee to have a look at something and talk to the people at the station about it.

Mr. Lalor

I do not feel as strongly about this amendment as I did about the previous one, but the Minister has conceded that he is to an extent speaking in a vacuum in that we have not the experience. In another subsection we have the situation whereby the commission after consultation with the Authority would be making rules and procedures regarding complaints. In relation to the function of the commission, I feel that RTE will be protected. We are setting up a commission to investigate complaints against RTE but there are a lot of subsections in the Bill to protect RTE. I am afraid that the section is geared more against the complainant than it should be. It should be an effort to see to it that a legitimate complaint is properly and fully examined.

The Minister told us of the people who would be likely to be requested to attend at an inquiry if the commission decided to hold an oral inquiry rather than deal with a complaint in writing. In reply to a question earlier, the Minister said that there is provision that the form of the complaint must be in writing. The complaint must be made in writing to the Authority within 30 days, and before they can deal with it a person must have complained to RTE and apparently not have got satisfaction. I wonder if it is wise for the Minister to include subsection (12), to which this amendment relates, because I can visualise a situation whereby the commission could decide that it could be a good thing to award expenses and that it might be as well not to build in the straightforward statutory prohibition.

Costs or expenses have not been mentioned. Does exclusion of the word "damages" mean that the commission could award damages? There have been complaints through the newspapers recently about the broadcasting of current prices at supermarkets. There is a weekly feature, a radio programme compered by Gay Byrne, which provides free advertising on behalf of six prominent supermarkets. It amazed me that, up to recently, independent shopkeepers had not been protesting about this. If a complaint under this heading were to be submitted to the complaints commission, a good lawyer on behalf of the complainants could make a strong case that some of these independent grocers and retailers had been seriously affected by this programme. In my capacity as Minister for Industry and Commerce I met a number of those people. One shop that has been featured prominently on this programme has been Ben Dunne's. Let me say categorically that I have the highest respect for this man and I admire him as an outstanding businessman. That is where a legitimate complaint could be made.

There are two forms of paying for our broadcasting, one is the licence fee and the other is the income derived from advertising. Most of those advertising spots have to be paid for. I often wonder how right it is that immediately before 10 o'clock in the morning, before Miss Mahon comes on with her fish prices, we have the advertising voice of Gay Byrne telling us to buy our goods in a certain shop in Capel Street or something like that, or that Cornelscourt is better value than anywhere else in town, and five minutes later we have Gay Byrne, the commentator, in charge of a very interesting and brilliant programme from 10 a.m. until 11 a.m. He is then giving factual data and the majority of housewives feel satisfied that everything that is said by Gay Byrne during that hour is factual. I have no doubt that everything is expected to be factual. It is an outstanding programme and he does a lot of good for a number of deserving causes. During that hour he spells out that you can buy tinned peas in six or seven shops at different prices and that the shopping basket for this week shows that the prices collectively are cheaper in Dunne's than in Quinsworth or Superquinn and so on. There is a consistency in the fact that Ben Dunne's prices seem to be cheaper than anybody else's out of the selected basket gone through. This could be termed advertising in its own way. Is it coincidental that his wife is the woman who does the sponsored programme for Ben Dunne's later on that day? I am not suggesting this is a subject for a complaints commission but I was not surprised that some shopkeepers reached the end of their tether in that regard a short time ago. On the other hand, the information conveyed in the "Gay Byrne Hour" is very useful and helps people to be more competitive.

In regard to the broadcasting complaints commission Deputy Fitzpatrick was pressing for, it would take five very wise heads to sort that out. I suggest that, while at present the Minister does not visualise a situation whereby the complaints commission should have the power to award costs and expenses, someone affected by something said or done on television could be deprived because of the inclusion of this subsection of being paid some expenses or compensation.

Perhaps there is legislation whereby affected parties have the right to bring an action of this kind against RTE but only those whom we regard as being in the moneyed set could afford to take such action because of the cost involved. This would be a prohibitive factor in the case of the ordinary individual who would consider RTE to have unlimited moneys to enable them to engage learned counsel and so on. Therefore, the only recourse which the ordinary citizen would be likely to have would be the complaints commission. In these circumstances would the Minister not consider it well to exclude the statutory prohibition which he proposes here?

Dr. Cruise-O'Brien

Some part of Deputy Lalor's remarks, which were very interesting, would, perhaps, be more closely relevant to the section generally. On the amendment he made one very important and specific point when he referred to damages and said that the provision whereby the commission shall not have any power to award costs or expenses to any party might by omission appear to imply that they had power to award damages.

I would not wish the wording to be so construed, so between this and Report Stage I shall consult with the parliamentary draftsman to ascertain whether we ought to say "cost, expenses or damages to any party". I am afraid that the Deputy's argument has led me to be more rather than less specific. I wish to make it absolutely clear that this complaints procedure is very informal and, I hope, consistently inexpensive because that is part of the point of it. It is not intended as a substitute for recourse to the courts. RTE are no more above the law than any newspaper and should they say something which is damaging to an individual or to a group of persons, the injured should have the ordinary recourse in law. That procedure can be costly but the commission is intended for a situation where a citizen sees, for example, a lack of balance in a programme and would like that to be corrected. If a person considers his private or personal interests to be damaged seriously, the commission procedure would not be his form of recourse because they are not intended as any substitute for ordinary legal recourse. It is desirable to have this explicit provision so that there be no expectations which the commission cannot fulfil. For example, people must be aware that the commission will not be in a position to pay the expenses involved in an individual coming from Kerry, Donegal or anywhere else to air his grievance. All the aggrieved person has to do is to write a letter to the commission.

Ruairí Brugha

I assume that most Deputies would agree with what the Minister has said. The attraction of this commission is their informality, in other words, that there would not be the necessity for recourse to solicitors, senior counsel and so on. This machinery will be all the better for being informal.

There is a question I wish to put to the Minister although it may not be relevant directly. If, for example, I were to make a complaint, it would be directed first to the Authority and in the event of my not being satisfied with their reply, I would make the complaint to the commission—a procedure which could involve a period of 60 days. My recollection is that the Authority must retain material for a certain period after it has been broadcast.

Dr. Cruise-O'Brien

That is so.

Ruairí Brugha

Therefore, there would be no danger of material in regard to which there was a subsequent complaint not being available.

Dr. Cruise-O'Brien

That is so.

Ruairí Brugha

The other point is one that has been raised by Deputy Lalor and concerns commercials being broadcast by well-known radio or television personalities. I have no wish to name names but if a person is very popular with listeners or viewers it seems to me that there must be a question mark in regard to he or she filling in the advertising slots. All credit is due to those who reach this peak of popularity with housewives and others but should they be permitted to do the advertising, also?

Mr. T.J. Fitzpatrick

(Dublin Central): I have very little to add to what has been said already. Deputy Lalor has made the point that it might be better to exclude this section in its entirety. On the question of expenses which, in terms of travel, for instance, can be substantial. I should hope that the factor is one which would be taken into account. I should hope, too, that machinery be provided which would obviate the necessity of going to court. In the case of damages the amount of compensation could be very little so every effort should be made to save both the aggrieved and the Authority the embarrassment and the cost of going to court. In private enterprise grievances are usually resolved in a simple way. Many grievances never reach the courts.

Ruairí Brugha

Especially in regard to newspapers.

Mr. T.J. Fitzpatrick

(Dublin Central): I am concerned lest this section would render it obligatory on the RTE Authority, irrespective of how small might be the amount of compensation involved, to have recourse to the courts. We shall be happy to have the Minister have another look at this but we put forward the amendment on the basis that the best way of obtaining balanced evidence is by means of interview rather than letter. They must not be impeded by people saying: “I cannot come along that day because of the nature of my job” or “I could not afford the travelling expenses”. It might be better if the section were not in the Bill. However, the Minister deems it necessary. There is certain merit in our amendment. Deputy Lalor and Deputy Brugha put forward our arguments.

Amendment, by leave, withdrawn.

Dr. Cruise-O'Brien

I move amendment No. 9:

In page 6, lines 59 to 62, to delete subsection (14).

Amendment agreed to.

Mr. T.J. Fitzpatrick

(Dublin Central): I move amendment No. 10:

In page 7, line 11, after "particulars of" to insert "all".

This amendment may not be of any great significance. If accepted section 18C would read:

(1) As soon as may be after the end of each year, the commission shall make to the Minister a report of its activities during that year and, subject to subsection (2) of this section, the report shall contain such statements (if any) as the Commission thinks fit giving particulars of all decisions made by it pursuant to this Act, and copies of the report shall, as soon as may be, be laid before both Houses of the Oireachtas.

I want to ensure that the commission submit a report of all decisions. As it is worded, the commission can submit such reports as they think fit. It would be better for the Minister to receive all the commission's reports. The Minister might be a better person to adjudicate on the reports. As the section stands, the commission can choose the reports they submit to the Minister. It is my contention that the Minister should have the benefit of all the reports.

Dr. Cruise-O'Brien

I have a good deal of sympathy with the intention of the amendment. I think the commission will wish to meet that intention. I cannot accept the amendment, not because of any doubt about what is intended, but because there is a specific category of exceptions which ought to be protected. Section 18C of the Bill as it stands provides that the commission's annual report shall contain such statements, if any, as the commission think fit giving particulars of decisions made by them and subsection (2) contains a mandatory provision that the report shall contain particulars of all decisions which are contested by the Authority. Moreover, under section 4 18B (2) of the Bill the Commission must, where they consider it appropriate, publish particulars of decisions as they are made or require the Authority to do so.

I would expect that under these provisions the commission would in general publish particulars of all their decisions. However there might be the rare case where it would be preferable not to do so. The type of case I have in mind is an encroachment of privacy where RTE accepted that the complaint was valid. In such a rare case—and I would expect that it would be rare—publication of particulars about the complaint could involve, or be felt to involve, further unnecessary encroachment on the privacy of the complainant. Probably Deputies would want to take that into consideration. In view of that possible case I consider that the section, as drafted, goes as far as is appropriate. I am sorry therefore that I am not prepared to accept the amendment, although I think the commission will bear in mind the intention behind it.

Mr. T.J. Fitzpatrick

(Dublin Central): I do not intend to press the amendment. I thought it would be of benefit to the Minister or to some future Minister. I can see the point the Minister has made. I wanted the Minister's view on the amendment. I wondered did he think it was desirable that all reports should be submitted to the Minister.

Amendment, by leave, withdrawn.

Question proposed: "That section 4, as amended, stand part of the Bill."

Mr. Lalor

This is what we call the brand new section to give statutory effect to something the Minister has been experimenting with over a period.

Dr. Cruise-O'Brien

May I interrupt the Deputy? If it suits the convenience of the House I should like to make a general statement about the section. The Deputy might either wish to speak now or to speak after I have made my statement. It depends on the Deputy's convenience.

Mr. Lalor

I expected the Minister to speak on the section. I have to meet a deputation and I will be held up after 3.30 p.m. The Minister will have an opportunity to comment before I get back. It is not out of lack of respect for the Minister that I am not giving way. I find a broad fault in the section. There is provision in the first few sections that the Minister may, with the permission of the Minister for Finance, make finance available to the commission for the performance of their functions.

The Minister has paid tribute to the existing committee. Tribute is due to them for the manner in which they have operated up to now. I may not have agreed with their decisions. I have had the opportunity of studying the outcome of some of their inquiries into the complaints made. As the Minister said, there were ten in all. Two are still under consideration. There were seven decisions favourable to RTE and one against them. I want to talk about the one against them.

This is a very long and wordy section. Built into it are the arrangements as to how the complaints commission will operate. One thing which has been overlooked is the fact that the commission have no teeth. The only real end product in the whole section is subsection 18B (7) which reads:

As soon as may be after they decide on a complaint made under this Act, the Commission shall send to the person making the complaint and to the Authority a statement in writing of their decision on the complaint.

Bob's your uncle! Subsection (9) reads:

When the Authority receives a statement of a decision from the Commission pursuant to subsection (7) of this section, the Authority shall, not later than fourteen days after its receipt, inform the Commission in writing whether or not the Commission's decision is accepted by the Authority.

The Minister said that if somebody writes in with a complaint from Kerry there will be no provision in the Bill to pay his expenses for coming up from Kerry to an oral hearing. When the commission's decision is sent to the Authority the Director General calls a meeting of the Authority. They are brought up from Kerry or Donegal or anywhere else and their expenses are paid, and rightly so. They say: "The commission have told us that such and such a programme was not balanced. An injustice was done to somebody. What do we do about it?" They have to write back within 14 days saying whether they have accepted the commission's decision. If they do not accept the decision, where do we go from there?

Progress reported; Committee to sit again.

Business suspended at 1.30 p.m. and resumed at 2.30 p.m.