Amendments Nos. 7a, 8, 9, 10 and 11 will be taken together for discussion as agreed.
Video Recordings Bill, 1987 [Seanad]: Committee Stage (Resumed).
Debate resumed on amendment No. 7a:
In page 6, subsection (1), to delete lines 3 to 13 and substitute the following:
"(a) the work depicts to a significant extent acts of force or restraint associated with human sexual activity, or
(b) the work depicts to a significant extent the mutilation or torture of, or other acts of gross violence towards, humans or animals, or
(c) the work depicts to a significant extent human urinary or excretory functions,
or is designed to any extent to stimulate or encourage anything falling within paragraphs (a) or (b) above or could reasonably be regarded as so doing.".
—(Deputy Taylor.)
Deputy Barrett made the point when speaking here on 15 December that the question of the criteria for giving a supply certificate should be looked at in conjunction with classification. This is a valid point and, accordingly, I propose to give some details now. I also told Deputy De Rossa, when he raised the matter, that I would give details of amendments I have in mind for a classification system and which I will introduce on Report Stage. It is reasonable to give those details now as Deputies may be of the view that they are relevant to the debate on the criteria in section 3. Deputies will remember that I promised to have another look at the classification question in the context of giving information about the contents of the video work in a recording. I felt there was a lot to be said for having classification for information purposes. Having considered the matter thoroughly, I am satisfied that such classification would be a useful addition to the Bill. Accordingly, I will move a series of amendments to that effect on Report Stage.
These amendments will provide for four classifications in all. The first and highest classification will be that the work is fit for viewing by persons generally; the second classification will be that the work is fit for viewing by persons generally but, in the case of a child under 12 years, only in the company of a responsible adult; the third category will be for works considered to be fit for viewing by persons aged 15 years or more; and the final category will relate to those works which the censor considers are fit for viewing by persons aged 18 years or more. I want to make it quite clear that the classification I will be proposing is intended for information purposes only. The amendments will provide for any offence in respect of the supply of a recording of a video work to a person outside the age group for whom the work is classified.
As I have said on a number of occasions already, I am very anxious that we should reach consensus on the provisions of this Bill. What we are trying to do here is to arrive at the best possible Bill having regard to the controls that we wish to bring in for video recordings and having regard also to the practicalities of the situation. All of us have ideas as to how the Bill should be framed. We must examine all these ideas, pick out the best of them and force them into an effective Bill.
The classification system I have in mind will give information to parents as to the suitability of video recordings of particular works for their children. It is no harm to stress once again the responsibility of parents in this area. The State can do a certain amount in bringing in controls. However, it remains for parents to play their part and when we are talking about video films the part that can be played by parents is as important, if not more important, than the part played by the State. The purpose of my outlining the classification system is to enable Deputies to relate them to the debate we are having at present concerning the criteria in section 3 of the Bill. I hope the information will be useful in that context.
One of the most difficult areas of this Bill in so far as drafting is concerned was the drafting of the criteria for refusing a supply certificate set out in section 3, and for making a prohibition order set out in section 6.
As I said already, there is the desire in drafting criteria such as this to give the person who has to make a decision as much guidance as possible. At the same time there is the realisation that it is not possible to pin things down exactly and, in fact, in trying to come up with precise criteria one may tie the hands of the censor in a totally unrealistic fashion. The criteria in the two sections should be looked at with this in mind.
Perhaps the most important point in relation to the criteria is that the censor has to decide that the video work is unfit for viewing because he is of the opinion that the viewing of it would, for instance, tend to deprave or corrupt persons who might view it because of the inclusion in it of any obscene or indecent matter. It is not sufficient that the film should contain obscene or indecent matter. The censor has to be of the opinion that it is unfit for viewing because the viewing of it would tend to deprave, etc. The censor has a discretion in the matter. At very best it would be unrealistic to attempt to deprive him of that discretion and perhaps also it would be impossible to do so and at the same time have meaningful legislation.
I would like to draw the attention of Deputies again to the individual criteria in (a) and (b) of subsection 1. The first category of criteria in (a) of the subsection refers to material that would be likely to cause persons to commit crimes, whether by inciting or encouraging them to do so or by indicating or suggesting ways of doing so or of avoiding detection. Again it must be remembered that the film censor must form the opinion that the work is unfit for viewing because of this ground. The ground is intended to deal with situations such as those where detailed information is given in relation to how to commit a crime and the depiction of it would be such as to cause the viewer to commit the crime whether by inciting or encouraging him to do so or by indicating or suggesting ways of doing so or of avoiding detection. Again one must remember that the film censor has a discretion here. Obviously he will not ban films such as "How To Steal A Million". In fact it is likely that there will be a very small number of video works that will be refused a supply certificate on this ground. However, it is necessary to provide for this category as it would not be caught by the traditional criteria for banning films which generally relate to material that is obscene or indecent or material that would tend to deprave or corrupt persons who might view it.
The second category of criteria in (a) of the subsection refers to material that would tend, by reason of the inclusion in it of any obscene or indecent matter, to deprave or corrupt persons who might view it. As I have said already, this is a type of criteria that is mentioned in earlier legislation in relation to cinema films and publications. I would expect that it will be the most relevant ground as regards refusing supply certificates or making prohibition orders as most works which would fail to get a supply certificate would fail because of the inclusion of material of this nature. Again I must stress that the film censor has discretion in relation to this type of material. It is not sufficient that there is obscene or indecent matter in the video work — it must be of such a nature that the censor will form the opinion that the work is unfit for viewing because the viewing of it would tend to deprave, etc.
The last category of video work which would fail to get a supply certificate is that where there is a depiction of acts of gross violence or cruelty towards humans or animals. The ground is not included in earlier legislation and the reason for its inclusion now is that such material is known to have been included in video works. For that reason it was decided that it was necessary to provide for it specifically. Again the censor must be able to form the opinion that the work is unfit for viewing because of the inclusion of this material. In other words he has a discretion in the matter.
I have already dealt individually with the amendments put down by Deputies. I appreciate that all Deputies who have spoken on this matter are attempting to improve on the wording in the Bill. I am at one with them in that objective but frankly I am not convinced that the alternative wordings proposed are an improvement on the wording in the Bill at present with one possible exception that I will deal with in a minute or two.
First, let me say a few more words about the amendment put down by Deputy Taylor, amendment No. 7a. As I have already said, the wording of this amendment is fairly close to what is included in subsection (2) of section 2 of the British Video Recordings Act, 1984. However the purpose of the criteria in subsection (2) of section 2 of that Act is different from the purpose of the criteria in sections 3 and 6 of this Bill. The 1984 British Act does not contain criteria for the refusal of classification certificates. Those criteria are included in the Censorship of Publications Act, 1959. The purpose of the criteria in the 1984 Act is to remove an exemption from works which otherwise would have an exemption, works in the educational, sport or religious areas or works which are video games. The purpose of subsection (2) of section 2 of that Act is to provide that if any works of that nature contain material such as is described in subsection (2) the work would have to be examined in the light of the 1959 Obscene Publications Act. The criteria mentioned in that Act relate to a matter which is obscene or indecent and which would tend to deprave or corrupt people.
I am willing to consider one small amendment to the criteria and this is the removal of the word "any" at the end of line 8 on page 6 and at the end of line 1 on page 8. The effect of this would be to refer to "obsecene or indecent matter" instead of "any obscene or indecent matter". This amendment would not affect the purpose and intent of the criteria set out in the two sections. However, it might help to dispel some of the reservations Deputies have about the criteria as presently set out and I am suggesting it for that reason.
As I said at the outset, I will provide on Report Stage for the removal of the word "any", and I am keeping to a promise, as I said I would the last day in reply to Deputy Barrett and Deputy De Rossa and possibly others — there seemed to be general agreement with Deputy Colley holding a similar viewpoint to that of Deputy De Rossa — that I would let Members know as to how I would proceed on Report Stage in an effort to meet concerns genuinely held.
At the outset I would like to say that I appreciate the open way in which the Minister is approaching this debate and the way in which he is attempting to meet the concerns expressed by Deputies on this side of the House in regard to this Bill.
I welcome the Minister's offer of a compromise in respect of providing classification for information purposes. Obviously it does not go the full distance in meeting my concern, but it does satisfy one of those, that is, that without some form of classification, even for information purposes, the censor might feel constrained not to allow certain videos through as the chances were that it would get into the hands of very young children. What is being proposed by the Minister would remove that constraint from the censor. He would now be free to look at a video in the knowledge that he has received some guidance on what classification he should apply to the video.
In regard to the proposal to delete the word "any" in paragraph (a), again this is an indication of the Minister's willingness to travel some of the road with us. I sought to have the word "any" replaced by the word "grossly" so that the subsection would read "would tend, by reason of the inclusion in it of grossly obscene or indecent matter". The removal of the word "any" would satisfy to a large degree my concern. The point I tried to make was that it was not good enough to insert a word in a section which could be interpreted in a very narrow or very broad way depending on who the occupant of the position of censor was. Obviously, the wording of the section could be interpreted by the censor in an objective way but nevertheless the proposed deletion of the word "any" corresponds with the view of the House that the section should not be interpreted in too narrow a sense.
One of the points I would like to make in respect of this section which we have been dealing with for a long time — for that reason I do not propose to go on at length — is that we should include a reference to the stirring up of hatred on the basis of religious beliefs, nationality, race, gender or sexual orientation which is what I sought to do in the amendment I tabled. A section of the Bill which referred to the stirring up of hatred on the basis of race, nationality and religious beliefs was taken out during the passage of this Bill through the Seanad. The Minister argued that it was not necessary to include such a section because a similar section is included in the Racial Hatred Bill which at present is going through the Seanad. However, I strongly believe that a specific reference to it should be contained in the Video Recordings Bill and that the censor should be obliged to consider the question of whether a video is aimed at promoting hatred on racial or religious grounds or indeed on the grounds of the gender or sexual orientation of a person. The Racial Hatred Bill at present going through the Seanad contains no reference to gender or sexual orientation. When that Bill comes before this House the Minister may argue that that section need not be included in that Bill either as there is no such reference in the United Nations Convention. I would like the Minister to indicate whether he would be willing to include a section containing a reference to the promotion of racial hatred or hatred on the grounds of nationality, gender or sexual orientation.
I, too, appreciate the indication the Minister has given of what we can expect to see on Report Stage in respect of the amendments relating to classification. As the Minister has indicated, if the amendments were to have such an effect I would be happy but I would prefer to await the full wording before deciding on my position. However, the approach the Minister has adopted is constructive. I would have no problem with the removal of the word "any", as this would enable the censor to take the meaning that we would wish to have taken out of the wording of section 3 (1) (a).
However, I still have a difficulty with the wording of section 3 (1) (a) (i) which reads "would be likely to cause persons to commit crimes, whether by inciting or encouraging them to do so". The phrase "would be likely to cause persons to commit crimes" is very subjective and would present the film censor with a very difficult task. He would be able to decide from what is depicted in the video whether it would incite somebody to commit an act of violence or a crime. He would also be able to decide after looking at it whether it would encourage a person to do so but he would not be able to decide after looking at it whether it was likely a person would commit a crime. It is beyond the capabilities of the film censor looking at a certain video, which undoubtedly is encouraging somebody to go out and do something unlawful, to say that it will have that effect. All viewers who are going to see this video will react in different ways. It is unnecessary to include the words "would be likely to cause persons to commit crimes". It is misleading as to the effect of this section and it is asking of the censor something he is incapable of doing while he is carrying out his duty — viewing the video. Having regard to what is required in this Bill, he must decide whether the video is inciting or encouraging somebody to commit a crime. That is why I feel my amendment No. 9 is tighter and more direct and asks of the censor exactly what this House wants him to do, that is, to see if a video incites or encourages a person to commit a crime.
I ask the Minister to consider accepting my amendment because it has the very same objective in mind as the Bill, but it is more in keeping with what we can expect the censor to do. We are putting him in a very difficult situation, when we ask him whether a video is likely to cause somebody to go out and commit a crime, given the different reactions people have. The only thing he can judge is what he sees, but he cannot say if it is inciting or encouraging somebody to commit a crime because he cannot know what effect it will have on an individual.
Maybe Members will agree with Deputy Colley's point of view, but I have had the case made by Deputy Colley on amendment No. 9 looked at in great detail since we discussed the matter on 15 December, and I am advised that under the section as drafted the official censor has to consider whether the viewing would be likely to cause persons to commit crime whether by inciting or encouraging them, etc. Deputy Colley's amendment would require the censor to consider whether the viewing would incite or encourage etc. With all due respect to the film censor, for whom we have great regard, he is no clairvoyant and the natural question for him to ask himself would be whether this work would be likely to incite viewers to commit crime; not "would it incite?" but "would it be likely to do so?" I think Members will agree with me that the section as drafted gives the right idea. It gives him that extra bit of discretion, that little more room to manoeuvre: would it be likely to cause people to commit crime or, as Deputy Colley would strengthen it, would it incite etc.? The House can see what I am trying to get at. There is no hang-up between us; it is a matter of what is most practical and effective. I believe "likely" is better here than "would". I would like to hear the views of other Members on it. We are not going to disagree on it.
I sympathise with the Minister when he indicated that this section, which is the bones of the Bill, gave rise to very considerable difficulties at the drafting stage. One can understand very well how that was, but I feel he has not come up with the best solution as the Bill now stands. The mere fact that the Minister has to get down to such a fine point as "likely to incite", "would incite" highlights the points I am trying to make. The difficulty with those interpretations is that the unfortunate censor is doing his best, of course, but he is trying to put himself into the minds of other people. We all know from legal practice that you cannot do that. Judges refuse to do it. It is impossible to put yourself into the minds of other people.
The approach taken of dealing with what would be likely to happen, or would tend to happen, is not a good one. Having thought about it carefully, I came to the conclusion that the only way to tackle this realistically was not to try to decide what effect a video would be likely to have on persons in general, or would tend to have on persons in general, but to look at it and ask what it does, what it shows, and if it shows certain things it should be censored but if it does not, it is all right.
As other Deputies have said, correctly, the censor is just one person. That is not a good idea, it would be better if there had been a group, but, as we all know, opinions and views can vary from censor to censor. It has been said that there is a safeguard here because if a film has been on general release in the cinemas it will be all right to release it as a video. That is true as far as it goes, but many videos will not be released in film form, and will have to be considered on their own merits or demerits as the case may be.
Section 3 (1) (b) gets away from the "would be likely to" or "would tend to" idea and says "depicts" acts of gross violence. Leaving aside descriptions, that approach is correct where the section is dealing with what is in the video and takes that as the appropriate criterion rather than the vagary of trying to decide whether it would tend to do something or would not. When the section says, for example, "would be likely to cause persons to commit crimes", what person does that mean? What is the unfortunate censor supposed to take from that? Put yourself in his position. Some persons, one person, any person, persons in general — it would have a different effect on different people. The most outlandish of these video nasties seen by the Minister or by me is not going to deprave us, but it might deprave some people. An unacceptable difficulty will be put on the censor if we deal with the matter in that way.
For those reasons my amendment No. 7a got away from that kind of approach and simply delineated the substance of what would be in the video. The censor looks at that; does it depict the things I have specified? If so then it is out; if it does not, it is all right. In all cases, I have used the words "to a significant extent", and that is an important safeguard because many videos will show violent scenes and the question then will be whether the extent of that violence is significant. I am unhappy about this issue of "likely to commit crimes" and suggesting ways of doing it and ways of avoiding detection. We are going too far in taking that as a subject for video nasties. I do not think that category was in the minds of Members originally and it appears to have been introduced as a separate one. In my view it is in a different category to films that portray violence and sex. I do not think it should have been introduced and it will present problems.
I do not know if it is possible to obtain a video that gives instructions in crime or one that outlines ways of avoiding detection but I accept that such information can be obtained from most crime films which are a major part of the video industry. Most videos on crime suggest possible ways of committing crimes or avoiding detection but we are going too far if we include that classification. The Minister should give serious consideration to dropping it.
I do not think the dropping of the word "any" in section 3 (3) (a) will make a great deal of difference to the interpretation, if one looks at this objectively. It would have been better if Deputy De Rossa's suggestion in regard to the word "grossly" had been adopted. It would have been a substantial improvement on the subsection. I do not think the deletion of the word "any" will add a great deal to the section.
It is not ideal to have one person acting as censor. The Select Committee on Crime, Lawlessness and Vandalism considered the question of censorship and recommended that there should be a video censorship authority but I do not think they amplified on that recommendation. Certainly, they envisaged more than one person being involved. It would have been better if the Minister had decided on a group of people, even two or three people, to give a balanced viewpoint on videos. It would also give an element of continuity to the authority because if one member died the standards set by the group could be continued by the remaining members. If the task is left to one person a new appointee might have a different outlook on the censorship of videos.
I wonder if it is right to proceed with the section as it stands. It is too vague and leaves too much to the unfortunate censor by asking that person to form an opinion on whether a video would be likely to encourage people to commit crimes or would tend to mislead depraved people. The provision in regard to the depicting of acts of gross violence is a good one but my amendment would have improved the measure. I do not mind if the Minister considers it necessary to extend it but it would be a mistake to leave the section in its present form by reason of its vagueness and the uncertainty that will be left with the censor and the appeals board.
I should like to thank the Minister for his decision in regard to classification. On Report Stage we will have an opportunity to debate the text of the Minister's amendment. However, I do not understand why the Minister had to go into so much detail in regard to this. It is obvious that his amendment is along the lines of a provision in the Film Act, 1923 but I wonder if it was necessary to go into such detail. In our amendment we suggest that the censor should be given power to either issue a supply certificate or a limited supply certificate. It is important that the censor should have flexibility in deciding what age group should view a video but I do not think it is necessary to enshrine that power in the Bill. We have had sufficient experience in regard to film censorship to be able to make up our minds in regard to videos. For example, the Film Censor demonstrated his good sense of judgment by imposing restrictions in regard to the showing of the film, "The Last Temptation of Christ". I do not think we could include in a Bill the conditions he imposed in regard to the showing of that film. I do not think it is necessary for us to specify the age groups. We should give the censor discretion to issue a supply certificate or a limited supply certificate. It should be left to the censor to decide on the age limits.
There was a fear in the Department of Justice that if that suggestion was adopted all videos would have to be viewed by the censor but I do not see how that could arise. I may be missing the point but I do not know how the censor would be obliged to view all videos if we give that official discretion to issue a limited supply certificate. How does that automatically assume that we are forcing the censor to view all videos? A censor will be aware of the type of videos that will cause offence. Surely we are not going to expect a censor to watch a Donald Duck video simply because he may be obliged by law to view every video? If the censor is aware that the video is about Donald Duck she should not have to view it before issuing a supply certificate.
Donald Duck could get up to some queer things.
That may be so but I am sure the Deputy understands what I mean. We should leave this provision as loose as possible so that the censor will have maximum discretion. The Minister should bear my comments in mind when considering the provision between now and Report Stage. I wonder how adding a provision that a censor should have power to issue a limited supply certificate in any way implies that the censor will have to watch every video but I may be missing the point. I think I know the reason the Minister says his proposal will be for guidance purposes which will not impose an onus on those supplying videos to adhere to any strict rules stipulated by the Official Censor. If one were a retailer in this business and the censor decided on some restriction, then one would have a responsibility just as has a cinema owner.
I do not envisage members of the Garda going into every retail video shop searching through the shelves in order to ascertain whether everything is being done in accordance with the law. It is my opinion that the trade itself will sort this out. Those who are in the trade in a professional, businesslike fashion are responsible people who are being frustrated daily by the pirates. Legitimate traders are endeavouring to legitamise the business, as it were, and remove the people who have no regard to any law and who have no intention of paying anything to the State. If, through the provisions of this Bill we render it more difficult for people to become involved in piracy I believe the trade will respond. If the Minister wants to give himself power under these provisions to introduce regulations — if what I am saying does not happen — he should take that power which will allow him take certain action. If people do not respond in a responsible fashion, unfortunately, the Minister of the day will have to take action. That is the way to go about it. The same principle should apply to the issue of licences. Once the Minister has the power he can use it when he sees fit in the future if people are not behaving in a responsible fashion.
There has been much about section 3 (1) (a) (i), (ii) and (b). We could debate ad nauseam how this wording will be interpreted. Deputy Taylor made a point earlier which led me to thinking somewhat more about it, when he said that in a court of law judges do not like having to interpret what the law was intended to mean.
That is not what I said.
I apologise. So far as I can ascertain, this provision will not be dealt with in a court of law. It will be the Official Censor who will decide whether to issue a licence. An applicant who may be refused a certificate will have a right to appeal not to a court but to an appeals board. So, no matter how one views the matter, it is a question of people using common sense. I cannot foresee circumstances arising in which this wording would be tested in court. The provisions of the Bill specify how any certificate is to be issued, that is either by the Official Censor or on appeal to an appeals board. Therefore, I do not think we have to worry about how a court would interpret this wording on a daily basis.
My concern would be more with the provisions of section 3 (1) (a) (i) which constitute a more factual consideration. The Minister did not answer the question I posed on Second Stage. Perhaps I am misreading the provision. Let us suppose one viewed a video of the great train robbery which might indicate or suggest ways of engaging in robbery and — or of avoiding detection. I do not think it is the Minister's or anybody else's intention to introduce a provision which would force the Official Censor to refuse a supply certificate. The provision is much too tight and narrow. As legislators we should be endeavouring to indicate the will of this House in attempting to deal with what we regard as a serious position in some respects but without tying ourselves up in knots. We should remember that we are passing a Bill whose provisions will have to be interpreted by the Official Censor or by an appeals board. The Bill will not be taken into the courts unless somebody challenges it which is unlikely. This provision has to do with retailers or wholesalers seeking a certificate and the mechanism to be used in the supply of that certificate. Therefore I do not think we have to be as precise since this is not a Bill whose provisions will be interpreted daily in the courts. That is the difference between this Bill and others with which we have dealt in the past or are likely to deal with in the future.
I thank the Minister for moving at least in the direction of classification. I would ask him to bear my comments in mind. I am not pretending to advance all the answers. The Minister should allow the Official Censor as much discretion or flexibility as possible. That was why I suggested providing a limited supply certificate so that he could decide what restrictions he should impose without specifying them.
Deputy De Rossa's amendment was similar to mine. I would ask the Minister to accept Deputy De Rossa's amendment which talks about supply because, at the end of the day, that is all we can do. When that video is taken home we cannot control who will see it there. That is the responsibility of the parents or guardians of the children involved. We cannot do anything about that but we can tell people in the business that they have a responsibility not to supply that video to somebody under 18 years, or whatever age the censor decides because they have a moral responsibility in society, like everybody else. Some people will act in good faith and will not allow under-age children to see these films. As I have said, the trade will sort out this problem, but if the Minister is not satisfied that he can depend on the trade, he should introduce a provision whereby, under regulation, he can impose other restrictions.
In regard to the Minister's reply earlier, I wish to say a couple of words because there may have been a misunderstanding about what I intended. In regard to my amendment to section 3 (1) (a) (i) the Minister indicated that the intention in the Bill is to allow the censor as much discretion as possible, and I certainly go along with that. He said that the phrase "would be likely to" is one that he would like to retain, because it allows the censor some discretion in deciding whether a video work incites or encourages people to commit crime.
I have no objection to leaving the words "would be likely to" within the subsection; the difficulty I see is in the phrase that follows that, which is "to cause persons to commit crimes". Deputy Taylor echoed my sentiments when he said the censor can only judge on what is in front of him, that is the video work. He cannot judge what is in the mind of the viewer. He cannot judge whether that person will react by committing a crime, or would be likely to do that. What he can do is to say that a certain video incites or encourages people to commit a crime. I would have no objection to having inserted "would be likely to incite or encourage a person to commit crimes" if that would give more discretion to the censor. The difficulty I see is that the censor is required to exercise some all-seeing powers, some type of crystal ball, that allows him to know what the viewer is thinking.
I welcome Deputy Colley's intervention. There appears to be something in the point she is making and we might be able to reach a consensus on it. I will consider it before Report Stage. I want to say to Deputies Barrett, Taylor and De Rossa that I fully appreciate that in this legislation, which has been before us for a considerable period of time, there is an obvious wish among all of us to try to reach a consensus. There are not many differences in our views on this matter. These are not matters of priniciple at issue between us. I would be more than glad to try to meet everybody's wishes if that is possible.
I want to say to Deputy Barrett in particular, with regard to his comments about matters coming up on Report Stage, I very much welcome that contribution. I will certainly give a lot of thought to what he said to see if we can reach consensus on that issue. The same applies to other Members. We have spent a lot of time on this matter and we will spend a lot more time to get it right. If we make mistakes now it could take a long time to put them right. If particular points of view are put forward in an effort to improve the drafting of the Bill, and if for some reason I cannot take them on board, I will very gladly give my reasons. I am open to be convinced that I should take them on board, and that is as it should be. I think we will have an interesting discussion on Report Stage.
Deputy De Rossa raised the point in regard to racial hatred. The Deputy knows that a Bill to prohibit incitement to hatred on grounds of race, religion or nationality has been completed in the Seanad and is on the Order Paper of the Dáil. Yesterday I asked the Whip if it could be brought before the House because it is important that we get to grips with it. There is a genuine wish among all Members of this House to come to grips with this matter that has been on the sidelines for a considerable period of time. We had a good debate on it in the Seanad — amendments were put down which were not accepted — and we can have a debate on it in this House.
The purpose of that Bill is to put on the Statute Book one of the measures necessary to enable this country to ratify the UN Covenant on Civil and Political Rights. Under the Bill it will be an offence to distribute, show or play a recording of visual images or sounds that are threatening, abusive, insulting or are intended or are likely to stir up hatred on the grounds specified. Thus the stirring up of racial, religious or national hatred by means of distribution, showing or playing of videos will be covered by the incitement legislation. An incitement to hatred on any other ground or against any particular group would be outside the scope of what I am trying to achieve in the incitement Bill.
I would regard a provision on incitement to hatred on any ground as being unnecessary in the context of this Bill, as well as being outside the scope of the Bill. As I have said, that legislation will be before the House very soon. It is for the Whips to reach agreement on it. The Bill was completed in the Seanad two or three months ago, well before Christmas, and I would welcome an opportunity of bringing it in here.
Deputy Taylor is not in favour of section 3 (1) (a) (i). The reality is that when this section was being researched it came to notice that a small number of video films of this nature existed. They would not have been "banable", if I might use such a word, under the traditional criteria and therefore it was necessary to provide for them specifically.
What kind of films are included in that category?
The type of films covered by section 3 (1) (b) — films showing in explicit detail how to commit a crime. A number of matters have been raised and I will certainly have them fully and properly considered. Before Report Stage if Members want to talk to me to see if I can accommodate the points of view they have specifc interest in, if I can, I will gladly show them what I propose to bring into the House but if I cannot, they will have the opportunity of putting down amendments on Report Stage.
Again, the Minister has demonstrated his willingness to take on board the case being made in relation to this section. With regard to section 3 (1) (a) (i), the Minister has said a number of times that films such as "How to Steal a Million" and "The Great Train Robbery" will not be covered by this section. Could he indicate what kind of film or video would be covered? In terms of "encouraging them to do so or by indicating or suggeting ways of doing so or of avoiding detection", could the Minister give an indication what would be covered?
On the question of "The Great Train Robbery", it is a long time since I saw that film but I do not think the punchline would encourage anyone to commit crime. I think everyone got punished, up-ended, somewhere along the line.
I appreciate that, but the section states "by indicating or suggesting ways of doing so".
I cannot give the Deputy titles.
I am not looking for titles but the circumstances which might be depicted which would be covered by the legislation. Obviously the films that have been mentioned are fairly "romantic style" crimes. What circumstances would be covered by that section?
Perhaps before the Deputy reads subsection (1) (a) of that section he would read the first part, subsection (1). The last two lines of the subsection states that the censor "declaring the work to be fit for viewing unless he is of opinion that the work is unfit for viewing because..." We are giving the censor discretion, that flexibility we all wish him to have. If he is not given this flexibility, he will not be able to do his job properly, and that would not meet the views expressed by Members here.
I wish to provide him with greater freedom to make that judgment and to come to a decision. By including the statement in the section that the censor must take into account the question of whether the film suggests ways of committing crime or of avoiding detection having committed a crime, we are putting that as an obligation on the censor to consider when he is making up his mind as to whether a video is suitable for viewing.
In an effort to be helpful to Deputy De Rossa the censor is aware of the particular wording and is satisfied that it is a system that can operate successfully. He knows he has that room to manoeuvre and he has flexibility to move. I take on board what the Deputy has said.
Taking on board the Minister's commitment to review the wording of this section perhaps he would take into account the concerns I have expressed regarding the last two lines which to my mind would unnecessarily restrict the censor in deciding what he should do in relation to a video. While I accept the bona fides of what the Minister says and what he has been told by the current censor it is a question of us providing a framework for any censor and not just the person who happens to occupy the position at present. We must ensure that the framework we provide will be interpreted reasonably consistently by whoever may occupy that position.
The point is taken.
In relation to the incitement to hatred section I have not been following the debate in the Seanad on the incitement to hatred Bill but I know it does not include reference to the question of incitement to hatred based on a person's gender or sexual orientation. I have made the point here before that in this day and age we are all conscious of the need to ensure that every citizen is treated equally and that their sexual orientation or their gender is not used against them and that material is not produced which would incite hatred against them. We are all aware that situations can be created where hatred can be aroused. We had an unfortunate murder in a park in Dublin some years ago, the blame for which can be reasonably laid at the door of the hatred of a young man because of his sexual orientation. It is important that we try to cover this aspect of ruling out that kind of incitement or the possibility of incitement on those grounds.
The incitement to hatred Bill does not cover that area and this Bill initially intended to cover the question of race, nationality and religion but that has been deleted. It must be covered at some point. If the Minister can give me an undertaking that he will consider including what I am talking about in the incitement to hatred Bill, that would satisfy me for the moment. I do not know what position the Minister took on it in the Seanad but I would certainly be keen to have some commitment on the matter. In relation to the issue of incitement to hatred——
I know the Minister referred to this and I know that everything that has been discussed is relevant to the legislation but perhaps the Deputy would direct his attention to the amendments before the House. When the section is being put we can have a renewed debate on it if we are so disposed.
I am addressing amendment No. 8 which is being taken with amendments Nos. 7a and 9.
The Chair appreciates that but in so far as we are referring now to other legislation and what might be provided in other legislation I thought we might leave that for another day and confine ourselves to the amendments.
Perhaps I am not making the point clearly. There is a need to cover the question of incitement to hatred in our legal code. This Bill is before us in relation to the restriction on video recordings which would incite to crime of various kinds. I am proposing that included in this Bill there be a section which would enable the censor to refuse a certificate for videos which incited to hatred on the basis of race, religion, nationality, sexual orientation or gender. The Minister had responded by saying that this is covered in the incitement to hatred Bill which has yet to come before the House. Part of what I am proposing is not included in the incitement to hatred Bill. If the Minister could indicate that he is prepared to take on board my concerns about extending the incitement to hatred Bill to cover the areas mentioned here, I would be favourably disposed to letting the matter go.
I was about to proceed on another point in relation to amendment No. 8. There are two distinctions to be made. The Bill before us deals with the question of providing certificates for the distribution of videos. The incitement to hatred Bill, as I understand it, deals with the question of a person inciting to hatred in a public place or knowingly having recordings or documents which might incite to hatred. While obviously we would expect the censor would have the good sense not to allow videos which would be overtly providing incitement to hatred there may be a grey area regarding this matter and he may feel that a video should go through on the basis that the other Bill — the incitement to hatred Bill — would catch whatever might get through his screening process. While the Minister says he does not see a need for it here I wonder whether that is so. It may be that we could have a situation where, in order to stop videos being provided for distribution which encourage incitement to hatred on various grounds, private citizens would have to take prosecutions on individual videos. I do not think that would necessarily be the way to go when we are trying to deal with video nasties in a general way in this Bill.
We have had a fair amount of comment about the question of the censor and the extent of his discretion. Many of the Deputies who contributed have put it on the basis that we ought to allow the censor as much discretion as possible, that his authority should be flexible and that he should have a wide range of discretion in examining these videos. It is very easy to get carried away with that. It is a nice sounding expression that the censor should have the maximum possible discretion. If you want him to have the maximum possible discretion one could leave it in his hands completely and let him ban what he wants. We should be careful about this. Quite frankly my own view would be the reverse, he should have the minimum discretion necessary and not the maximum. The decision on what videos are allowed and what are not allowed essentially is one for us here in this House to decide and not for the censor to decide. We have to set down the guidelines on what we want him to do. Obviously he will be left with a certain measure of discretion but it should be the minimum necessary, not the maximum. We ought, so far as possible, to devise the criteria he is bound by. When he looks at the video and the guidelines we have given him the extent of his discretion is to see whether that video comes within those guidelines. One should be careful then, about throwing out phrases such as "He should have the maximum possible discretion". The decision on the matter should be made by us, not by the censor.
That leads me to the point made by Deputy Barrett. We are not talking about decisions on these videos being made in a court. That is true but there are many important decisions made that are not made in courts but which nonetheless are judicial decisions. That is to say they are decisions that have to be made in accordance with the laws we lay down. The decisions that would be made by the censor come within that category. They would be judicial decisions because the censor is obliged to look at the law that we will have laid down for him and the various categories under which he will be authorised to ban or not to ban. He will have to base his decision on that and not on a biased point of view or on account of any personal whim that he might have in one direction or another. His will be a judicial decision as though he was a judge, just as so many other decisions that are made by people who are not judges are. That is what I meant when I said in my previous contribution that we ought not leave the censor in the position of having to try to interpret what is in the minds of other people or how other people would tend to react to a video that they would see.
I know that we are talking about consensus and consensus is always desirable. However, there is a basic distinction in the approach and that is whether one should, as my colleague Deputy Higgins outlined on the last day when I could not be here, take a minimalist approach or not. In other words when one goes to ban the items should one cast the net widely or narrowly? I took the view and so did he that the net should be cast as narrowly as necessary. The net should be cast as narrowly as possible and we should not catch a wide range of things which on careful examination we might not want at all. We have taken a first tentative step in that direction and I am not happy about the way we are handling the crime aspect which has entered the debate for the first time when it appeared in the Bill. It was never there before at all and I do not know why or from what source it emanated. Deputy De Rossa raised a number of tentative questions on this issue and got very tentative replies which did not satisfy me and I doubt that they satisfied him.
I wish to refer to the Select Committee on Crime, Lawlessness and Vandalism which dealt with the issue of video nasties during the last Dáil. A great deal of evidence was taken, the matter was gone into in great details and representatives of all interested parties were heard at great length but the crime category of video was not considered at all. However they dealt with the other two categories and I quote from section 8.8 headed "Video Nasties":
Videos which display unrestrained violence and/or sexual abuse must be banned. Most of these videos are not classified on the international coding system.
There is not a word in the report about the crime category, perhaps there is something that we do not know anything about or that has come up since the committee issued their report.
Tax evasion.
Perhaps that is it. There is some vagary there and it seems very difficult to get anything specific on it. In the absence of anything more specific, I will not agree to the crime category being allowed to creep into the Bill. Unless the Minister can tell us that he is going to look at the possible exclusion of that classification, I think the sooner we have a decision here on Committee Stage the better. I am not satisfied either from what I have heard as a member of that committee or since that this category should be included at all.
As I have said before, I am also unhappy about the way in which the draftsman decided to come down on this category in this particular subsection. While I sympathise with his difficulties, and I cannot say that I regard my alternative as perfect, I would have to say that my own amendment is certainly marginally better in giving a more balanced approach to what is required.
I had meant to say something in my first contribution about the Minister's classification arrangement and in so far as it goes, it is to be welcomed. I had hoped that we would have gone further because we are left with a somewhat anomalous situation so far as limited viewing is concerned. As we discussed on a previous section I do not intend to go into it again. However the anomaly still remains notwithstanding the Minister's concession on classification, helpful though it is. It will be some help on an unofficial basis but I would have preferred, and I think Deputy Barrett would also, that it would have been more formalised and that the categories should be brought forward into the video section as it is in the cinema section.
I will reply to Deputy Taylor's last point. During the course of our research work in the preparation of the Bill we came across videos which were being made to show people how to commit crime, for example, how to steal cars without the keys, how to inject oneself with drugs, and under the legislation as it stands we were not in a position to deal with these video films. Most people would be of the view that this type of video should not be allowed and we are trying to deal with videos that would be educating people to commit crime. God knows we have enough trouble as it is.
These videos are not based on fiction or a story?
No, they are purely for the purpose of crime. There was one video showing youngsters how to inject themselves and we are trying to prevent this.
They are not available in my local video shop.
I can understand that people are very sensitive on the issue of censorship. I too am probably as sensitive as anybody here. There is something in all of our natures that automatically brings a natural resentment when told you are not to do this or that. I react in the same way as anybody else but we are trying to deal with the situation as I have described it. I will mention a point raised by Deputy De Rossa. The Prohibition of Incitement to Racial, Religious or National Hatred Bill is before the House at present and I am satisfied that the provisions of the Bill more than cover what the Deputy has suggested. I will doubly ensure that I am perfectly right on that before we talk about it again on Report Stage. I am very conscious of the debate on this Bill, and as the Deputy may know I was involved with it in Seanad Éireann. I think it is quite a good Bill but we will have to wait until we get a discussion on it here. I am satisfied that the matters the Deputy referred to are covered in the Bill as it stands. That concludes my remarks.
Perhaps we might be able to move forward if the House agrees? Is Deputy Taylor pressing his amendment?
If I withdraw the amendment at this stage could it be reintroduced on Report Stage?
Acting Chairman
Yes, it can if the Deputy wishes to do so.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 6, subsection (1), to delete lines 4 to 7 and substitute the following:
"(i) would be likely to cause persons to commit crimes, by inciting violence, or by stirring up hatred against any group of persons on account of their race, nationality, religion, gender or sexual orientation, or".
Acting Chairman
Is the amendment withdrawn?
I will withdraw the amendment with the proviso that it may be re-entered on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 6, subsection (1) (a), to delete lines 4 and 5, and substitute the following:
"(i) would incite or encourage persons to commit crimes whether".
On the basis of what the Minister has said about his willingness to look at possible suggestions, I will withdraw that amendment.
In relation to section 3 (2), why is the censor obliged to automatically grant a supply certificate if a certificate has been granted under the Censorship of Films Acts? If there is a limited supply certificate for a film, why is he obliged to issue a supply certificate for the video? I know we will overcome that difficulty to some extent if we get around to classification, but that will not altogether solve the problem because the Minister's present proposals are purely for guidance purposes. Surely the censor should not be obliged but should have a discretion as to whether to grant a certificate.
It is extraordinary that he must automatically grant a certificate, in other words, give a supply certificate with no restrictions to a video when he has already given a certificate with restrictions to the film. The censor can order that nobody under the age of 18 is entitled to see a certain film yet he has to automatically give a certificate with no restrictions to the video of the same film, so that, for instance, a 12 year old can go out and buy it. It is a bit ridiculous and it does not make sense. Why has the Minister decided to include that provision?
Being such an amenable person, I accepted this amendment which was given birth in the Seanad debate in response to a number of suggestions and amendments by Senators who felt that this was necessary.
I suggest that the Minister leave this over in the context of his proposal for classification.
Yes.
I do not want to get sticky about it, but it just does not make sense. We retain the right to come back to this on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 10 to 14, inclusive, not moved.
I move amendment No. 15:
In page 6, between lines 17 and 18, to insert the following subsection:
"(3) A supply certificate shall be deemed to have been granted to the person making the application 90 days after making the application, unless a prohibition order has been made by the Film Censor in respect of the video work which is the subject of the application.".
This amendment is designed to ensure that there will not be a hold up by the film censor in the granting of certificates. It simply puts into the Bill some time limit by which the film censor should have made a decision, and if he has not made a decision, then one can assume that the video was not one that demanded his priority attention and therefore is deemed to have been granted a supply certificate. I admit that I have more or less taken 90 days out of the air. I am not involved in the business of film censorship and I do not know what length of time would be the norm. I am open to correction on that.
However, if I am a supplier of videos or a wholesaler of videos and I have certain contractual obligations to supply other people, it is reasonable that some sort of time limit should apply to the granting of a supply certificate and if that time limit is not met, the supply certificate should be deemed to have been granted and I may then apply for a label.
In my amendment I suggest that this new subsection (3) should go between lines 17 and 18 but in fact it would be better placed between lines 25 and 26 because at that stage a prohibition order has been mentioned in the Bill. A supply certificate should be deemed to have been granted if after 90 days no actual certificate has emerged from the film censor's office, unless a prohibition order has been granted. It is a reasonable amendment.
I thank the Deputy for raising that point. The amendment relates to practical arrangements that have to be made between the film censor and those who will be submitting video work to him for a supply certificate. The point dealt with in this amendment was discussed by representatives of the Irish Videogram Association, the film censor and officers in the Department of Justice. There was agreement on all sides that the system would have to be such as to allow for decisions in relation to supply certificates being made in advance of the dates on which any particular work was to be in place in shops for sale or rent to the public.
There will be an onus on the trade and on the censor. The trade will have to supply a copy of the work to the censor in reasonable time in advance of the projected date for the sale of the film, and the film censor will have to deal with the work within a reasonable period and he will have to have sufficient staff and equipment to do so. There was general agreement on this point and no difficulty was foreseen. I am satisfied that is the type of detail that should be left for discussion and agreement between the trade and the censor and that it is not necessary to put it into the Bill.
I support Deputy Colley's amendment. It is a perfectly reasonable amendment and is particularly appropriate. The amendment is to meet the case where some videos might be submitted and left sitting there without a decision being given. It is the sort of thing that happens. Under planning law when a planning application is made the planning permission has to be either granted or refused within two months, which is only 60 days, or else it is deemed to have been granted. The reason for that was because there used to be long delays.
Let there be discussions between the trade and the censor, by all means, but it is still reasonable to say here that at a certain point a decision has to be given and if a decision has not been given a supply certificate is deemed to have been granted, just as it would in planning law. If it is appropriate to provide that kind of resolution of delays in the planning code, it is certainly appropriate to deal with this here. Indeed, if I had any fault with Deputy Colley's amendment it would be that the period of 90 days is altogether too long.
I am not too happy about the way the amendment is framed because it provides that a certificate shall be deemed to have been granted to the person making the application if there is an undue delay. I would much rather if the censor was obliged to give a certificate after a fixed period of time rather than give a distributor an automatic right to distribute a video even if he does not have a certificate which says "yes or no". It would make a nonsense of the Bill and the debate on it over a number of weeks if, because of a bureaucratic tangle, any video could be distributed simply because there was a backlog of work in the office of the censor. There should be some way of ensuring that a certificate has to be given which says either "yes or no". One should not automatically get a certificate to distribute and a decision should be given within a certain period so that the Bill will apply to the video and will not be swept aside because of a bureaucratic tangle.
I want to reply to a point raised by Deputy De Rossa. My intention was that if the given period had elapsed and no decision had been made by the film censor, at that stage effectively a certificate would be given because it would be deemed to have been given. That would enable the applicant to obtain a label, in other words, this would bypass the physical certifying of a video by the censor. I envisage that this would happen only in cases where the censor would not be required to actually view a video. A number of queries have been raised both on Second Stage and Committee Stage about whether the film censor will have to view every single video which is presented to him. The Minister stated on a couple of occasions that it will not be necessary for the censor to look at every video: he will be able to judge from the descriptions of some of them and his own knowledge of some of them that it is not necessary to look at a film. It could be that a bureaucratic logjam could build up because of that and distributors would not receive certificates within the right amount of time. Given the 90 days I am suggesting, I think it is reasonable to put in a safeguard, in other words a safety net, so that people are not left, because of a bureaucratic hiccup, without a method of obtaining labels and distributing videos.
I understand the logic of the case put forward by Deputy Colley and I could see some way of being more favourably disposed to the amendment if it were not for what we propose to do on the question of clarification on Report Stage. There is a general understanding that if a classification system is in operation it will be a slower system to operate. On the other hand, we had discussions, even before classification became a real live runner, with the censor and the Videogram Association and there was no worry in anybody's mind about any delays that might take place. I should like an opportunity of looking at this question and to consult with the censor, bearing in mind what we are going to do about classification. I share the view expressed by Deputy De Rossa that there could, for some reason or other, be a delay perhaps in relation to titles submitted for classification because inquiries might have to be conducted or responses made to inquiries might might slow things up. I am thinking of what happens in regard to applications for planning permission to local authorities. The statutory period within which the local authority must make a decision only commences when all the documentation required to back up the application is with the local authority. I would hate to think that for some reason or other which we may not identify this afternoon we would put a difficulty in the way of the censor and prevent him from doing what we want him to do.
If Deputy Colley agrees, I would like to consult with the censor, bearing in mind the fact that on Report Stage we will introduce a classification system, to see what problems might emerge with which he will want some freedom. I understand and share the Deputy's view that at all times bureaucracy can be very difficult to understand when there are long delays. I get upset, as anybody would, if things, even in my own Department, are not moving as fast as I want them to move. It is hard to understand why things are not moving but, of course, this is not the case with regard to this section, although we are not going very fast right now.
It is like a sword dangling over the Minister's head.
No, I am thinking of the headlines recently in relation to the Land Registry. We all have our views on that, particularly those involved in the legal profession. We are trying to get that office up and running and kick some life back into it, and please God we will.
With regard to the amendment, if Deputy Colley gives me some time, I will communicate with her before Report Stage so that if she wishes she can come back to this matter on that Stage of the Bill.
Is Deputy Colley withdrawing her amendment?
Yes. I would like to give the Minister time to study the matter because the principle of it is important. Because so many titles of videos come on stream all the time I thought there could be a logjam but I would also be concerned not to cut across the classification arrangements which are being made.
And possible copyright problems that could arise.
Exactly.
These are problems which are just coming to mind.
How would copyright problems arise?
A person who submits a title might not have copyright permission to do so. There are many little problems there.
I do not understand how a copyright question could come within the ambit of this Bill. It does not deal with copyright; it deals with the job the official censor has to do within certain criteria. Even if there was a breach of copyright I cannot see, because of the way this Bill is framed, that that would be a ground——
It is a matter I want to look at and be satisfied about.
There is no clause in the Bill which says that if there is a breach of copyright this entitles the censor to refuse a supply certificate. He does not pronounce any comment on the copyright issue. A point was made about whether it would be necessary for the censor to view every video in respect of which he will grant or refuse a supply certificate. The suggestion was made that perhaps it was not necessary. I think this point is very important and should be clarified. From my reading of the Bill, it seems to be quite clear that the censor will be obligated to see every video on which he has to make a decision. Otherwise how can he form an opinion on the work and decide whether it comes within the various categories? How can he form an opinion if he does not see the work? Therefore, I believe he must see the work. If the censor gave a decision on any video and said he had formed an opinion on it without having seen it I think such a decision would be reviewable by the courts and his decision would be quashed. Otherwise, he would have to rely on hearsay, what somebody told him, the title or some written blurb about it. I do not think he could properly form an opinion and, therefore, the question is referable to Deputy Colley's amendment. It would mean that a large supply of these videos could build up and the censor might need some assistance or a colleague might have to be given authority to deal with them as well.
Acting Chairman
Deputy Colley has indicated that she will withdraw her amendment and we will come back to this issue on Report Stage.
On a point of clarification, section 3 (1) says that the official censor shall, on application to him in relation to a video work, grant to the person making the application a certificate declaring the work to be fit for viewing unless he is of the opinion that the work is unfit for viewing. That allows the censor to form an opinion without necessarily doing the actual work.
He will come to a decision on something he has not seen.
This is something which has come up a number of times.
Amendment, by leave, withdrawn.
Amendments Nos. 16 to 19, inclusive, not moved.
I move amendment No. 20:
In page 6, between lines 30 and 31, to insert the following subsection:
"(5) It shall be an offence for a person to apply for a supply certificate or a limited supply certificate unless such person has been authorised to apply by the owner of the copyright in the said video work.".
Here we are dealing with the manner in which a manufacturer of video material might present his case or his video to the Official Censor. The Bill as envisaged by the Minister needs a little tightening up in this regard. Who has title to that material? As Deputy Taylor stated earlier, we may be infringing copyright legislation, which is perhaps another day's work. By inserting amendment No. 20, an onus is put on the censor to see that the applicant has title to the video material, rather like a driving licence tester under the Department of the Environment regulations checking whether an applicant for the test has motor insurance and road tax for the vehicle. If the censor satisfies himself that the video material has not been pirated or published contrary to statute, contrary to copyright legislation, we could go somewhat down the road of outlawing the video piracy which is widespread at the moment. On Second Stage the Minister stated that he had taken up this matter with his colleague, the Minister for Industry and Commerce. I hope some progress has been made in this regard. The legislation before us will be seriously flawed unless the necessary copyright legislation is enacted without delay.
We are dealing here with the question of who can apply. Under the present section anybody, provided he has been supplied with video material, can now apply to the censor for a supply certificate. Amendment No. 20 tightens that up somewhat in so far as it requires the person making the application to show that he is not in breach of copyright and that he has authority to submit his application. We are not going outside the realm of the censor's duties. In many ways we could counteract much of the present piracy by the applicant showing that he has title, is not in breach of copyright and has authority to apply. If passed unamended, the section could mean that anybody, however unqualified, could apply to the censor for a certificate and the censor under the present legislation could not refuse to grant a certificate for any copyright reasons. The amendment has some merit in that regard alone.
I thank the Deputy for the case he has made for the amendment. I can understand what he is trying to achieve. However, what the Deputy is concerned about is already provided for. It is unnecessary to create an offence of applying for a supply certificate for a video work of which somebody else owns the copyright. If the Official Censor learned that the applicant was acting in breach of somebody else's copyright, he could simply refuse to consider the application, just as if he learned that the applicant was acting otherwise without authority or that the video recording contained in the work had been stolen. This is on the general principle that a statute must not be made the instrument of fraud.
A similar situation might arise over a cinema film. In either case the applicant would scarcely venture to challenge the censor's refusal by proceeding to the High Court unless there was a genuine issue over the ownership of the copyright. The owner of the copyright might seek an injunction to prevent the censor from considering the application. I know that the trade are very watchful in this area. Members of the House will recall that only recently there was very large advertisements inserted in the newspapers by the trade, advising that a particular video available in Australia labelled "Frantic" had been hijacked. The trade was alerting all of us to the fact that this was so. I have no doubt that the censor, if he was involved in the matter, would immediately be contacted by the trade and made aware of the facts. He would therefore be entitled to deal with it as I have already described.
I fully agree with everything the Deputy has said, but we have adequate cover to deal with the situation he mentions. What is in the amendment is provided for.
The Minister stated that it is open to the owner of the copyright to seek an injunction against the applicant, but how might the owner be aware that such an application had been made?
The trade are already extremely watchful in these matters. They would advise the censor that there was piracy or hijacking involved with regard to the particular film. The censor could deal with the matter accordingly. I have impressed on the Minister for Industry and Commerce the need to expedite the copyright legislation. Members will know from the last occasion that Minister Brennan, who has responsibility here, is well aware of the views of the House and he is being constantly reminded by me that there is a great demand for this legislation.
Even with the protection the Minister says all legislation has, in that it cannot be used as an instrument of fraud, the copyright laws do not cover videos. There is a difficulty with regard to videos and that is why we must update copyright legislation. No matter what we do with this Bill, we will still have a problem.
Yes, a big problem.
Of piracy.
If we do not get the copyright legislation through, we are left swinging somewhat.
With respect to Deputy Colley, she is not correct when she says that copyright laws do not cover videos; they do. I am aware that injunctions are applied for and granted to many video firms at this time.
As it is, it is not adequate. I think that is the point Deputy Colley was making.
It may not be adequate. but people do get injunctions. There have been reports about it in the newspapers. The breach of copyright is going on on a large scale, for obvious reasons. The position, as I understand it, is that an unauthorised copy of the average video costs about £80. The owner of a small video shop told me that every week a van comes down from the North of Ireland with the identical videos which cost about £20. Consequently the pressure is on owners of small video shops as opposed to multiples and it is very great. Many say that they would go out of business if they had to pay the £80 but that is another day's work. That is the position.
I agree with the Minister's response to amendment No. 20, although for different reasons. The Minister makes the point that if the censor knew there was a breach of copyright he would not deal with the application because to do so would mean that this Act would be used as an instrument of fraud. I do not think that is quite right. Breach of copyright is not fraud. It is quite different. If this Bill is passed in its present form the censor will be bound by what it contains and he will not be entitled to go into the question of copyright. It is not a relevant factor. He is given his instructions in section 3. He is to see the video and decide whether it would cause a person to commit crime and so on. He makes his decision on that basis. It is appropriate to deal with copyright in separate legislation, not in this Bill. I support the Minister in his response, for that different reason.
If we had the necessary legislation in regard to copyright, amendment No. 20 would be superfluous.
Even without it, it is still unnecessary.
I accept the Minister's assurance that he has been discussing the matter. If he will assure the House that copyright legislation will be forthcoming, I will withdraw the amendment.
I accept what Deputy Flanagan says. I assure him that I will impress on the Minister once again the urgency of the legislation.
Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.
Amendments Nos. 21 and 22 not moved.
Question proposed: "That section 4 stand part of the Bill."
We are talking about banning the supply of certain videos. If a person went to Europe or the United Kingdom and bought a video nasty which otherwise would not be permissible under the terms of this Bill and brought it back here for his private viewing and for no other purpose, would he commit an offence? It seems that such a use would not be a breach of this section.
That is a very interesting question. If a person had a video nasty now for his own use——
He is all right.
Yes, but if he did as Deputy Taylor suggested he would be caught by section 15.
That is in the case where a prohibition order has already been made. If it was a video nasty in respect of which a prohibition order had not been made, then the person would be in order in bringing it in, as long as he did not supply it.
That point is covered in section 16.
Question put and agreed to.
SECTION 5.
Amendments Nos. 23 to 26, inclusive, not moved.
Section 5 agreed to.
SECTION 6.
Amendments Nos. 27 to 31, inclusive, not moved.
Question proposed: "That section 6 stand part of the Bill."
I mentioned earlier that I will be introducing an amendment on Report Stage in relation to the word "any" in section 3. A similar amendment will be required in relation to this section.
Question put and agreed to.
Sections 7 and 8 agreed to.
SECTION 9.
Amendments Nos. 32 to 42, inclusive, not moved.
Section 9 agreed to.
Section 10 agreed to.
SECTION 11.
Amendment No. 43 not moved.
I move amendment No. 44:
In page 11, subsection (1) (a), line 13, to delete "shall be obtained from the Official Censor" and substitute "may be obtained from the Official Censor by the holder of a licence".
Section 11 requires that video recordings containing certificated video works should have affixed to them a label in the prescribed form to be obtained from the Official Censor. The amendment provides that labels should be obtainable only by holders of wholesale or retail licences under the Bill. Under the existing wording of subsection (1) (a) anybody would be entitled to get labels from the Official Censor and this would leave scope for people who are not licensed to sell video recordings or let them on hire to get labels and put them on pirate copies or on recordings of video works for which certificates have not been obtained. This is clearly undesirable. My amendment will result in tighter control in relation to labels.
I am not opposed to the amendment in that it tightens up on piracy. Labelling is one of the areas where we can do something without actually affecting those legitimately trading in the video business. It will, however, affect those who are pirating. The provision in relation to a licence is not very restrictive. It is wrong to allow the official stamp of approval to be used willy nilly. There should be tight control of these labels. If a person purchases labels it does not necessarily follow that those labels will be affixed to the videos for which they are intended. There should be strict control on those who are entitled to purchase these labels. It is the responsibility of the distributor or his agent to affix the labels required in this legislation. It would be wrong to allow a situation where all a person had to do was to pay the fee, get a bundle of labels, take them away and affix them to the videos. Presumably if a distributor — or the manufacturer, as he is called — makes a video he will have to submit it to the censor in accordance with the Bill for a supply certificate to be issued. That manufacturer or distributor will go through the process of getting approval from the censor by way of a supply certificate or a limited supply certificate, depending on how we thrash out Report Stage.
When the approval of the censor is gained the distributor should affix the label to the video approved. The distributor, having got the supply certificate, should not be able to send out the videos to the various agents around the country who will purchase a bundle of labels and affix them to the videos in their own premises. Strict control will have to be exercised or there will be chaos. I could go in and say I wanted a certain number of labels, pay my fee, walk out of the premises and affix them to a different video which could have been pirated. Legislation which permits that practice should not be passed. The distributor submits the video to the censor, he will get the supply certificate if the video is approved and at that point he should affix the label required under this section. He will then distribute them to the wholesalers and retailers who will hire and sell them to individuals.
I am aware — and I am sure the Minister's officials are aware — that the Irish Videogram Association have been in consultation with the Department of Justice in relation to this matter. My understanding is that the fear is there could be a monopoly, although I do not see that. It could be argued that it will deprive somebody from going to Britain and purchasing a number of videos at a lesser cost and bringing them back here. However, they would not be able to get the labels if my amendment was accepted. However, there is a way around that.
If I go to Britain or Northern Ireland and purchase a number of videos that have been approved by the censor here I can then go to the approved agent who will be obliged to sell me the labels that have already been supplied to the company in question. For argument's sake say that company X manufacturers a video and submits it to the censor who gives him a certificate. They must then purchase the labels and affix them to the videos to be distributed. Company X will presumably also be selling that video in Northern Ireland and Britain. The argument is that I as a retailer could go to Northern Ireland and purchase the same video, perhaps at 10 per cent less than I could buy it from the representative of company X. The argument is that I would be deprived of purchasing them in Northern Ireland at 10 per cent less if I cannot get the labels. The way around that is that the representative of company X here would be obliged to supply me with the labels even if I purchased the videos outside the country. It is a little bit complicated but I hope I am getting my message across. The basic point is that there must be strict control over labels.
I understrand that the pirate trade in videos is somewhere in the region of £15 million per annum and the Exchequer is losing £3 million or £4 million in VAT and PRSI. We should use every possible means and legislation to force those people out of business. We cannot allow them to get away with this and at the same time put ordinary, legitimate people out of business because they are selling videos. The pirates are selling videos at a much lower cost and are not subject to the strict control which applies to legitimate traders. I appreciate that my ramblings may not have been clear but I am asking the Minister, between now and Report Stage, to consider this point. If necessary I would table an amendment but I would prefer to get together to put a stop to this.
My amendment seeks to tighten control and Deputy Barrett suggests that we should go further in this regard. I will certainly weigh the arguments he made and perhaps on Report Stage I might be able to do something about them. I am concerned about creating monopolies and if we can do as Deputy Barrett suggests without legislating to provide for monopolies, then I will certainly be prepared to do something about it.
It can be done.
If it can be done I certainly welcome the Deputy's offer of help which I appreciate. I am going in the right direction and with the Deputy's help we will go further.
I will supply the Minister with my golden plan.
Amendment agreed to.
Amendment No. 45 not moved.
Section 11, as amended, agreed to.
Sections 12 to 16, inclusive, agreed to.
SECTION 17.
Amendment No. 46 in the name of the Minister. Amendments Nos. 48, 49, 50 and 51 are consequential and it is proposed, therefore, to discuss them together. Is that agreed? Agreed.
I move amendment No. 46:
In page 15, subsection (1), line 40, after "wholesale" to insert "or to let them on hire".
Section 17 provides for a grant of licences by the official censor. Under the section in its present form a wholesale licence would authorise the holder to sell video recordings by wholesale. A retail licence would authorise him to sell the recordings by retail or to let them on hire. Amendment No. 46 provides that a wholesale licence will authorise the holder to sell video recordings by wholesale or, like a retail licence, to let them on hire. Amendments Nos. 48 and 49 are consequential.
Amendment No. 50 is also consequential on the amendment to section 17 (1). Under the Bill at present section 18 (1) (2) provides separately for prohibiting sales, etc. otherwise than in accordance with wholesale licences and sales otherwise than in accordance with retail licences. Now, as a result of amendment No. 46 to section 17 (1), a wholesale licence will authorise letting or hiring. There is no need for separate prohibitions in subsections (1) and (2) of section 18; amendment No. 50 makes the necessary provision in one subsection covering both kinds of licence.
The reason for the amendments is that wholesalers do let video recordings on hire. Accordingly, the existing wording of the section is too restrictive as under it the holder of a wholesale licence is confined to selling video recordings. The amendment would enable them to let recordings on hire and is in keeping with existing trading practices in the video business. Amendment No. 51 is consequential.
I mentioned earlier that the Minister should include provisions in the Bill which would enable him to make various changes by way of regulation if it became necessary to do so. This is one area where it would be advisable for the Minister to include such a provision. Subsection 6 states:
a person who applies to the Official Censor for a licence shall furnish to the Official Censor such information as he may reasonably require for the purpose of the performance of his functions.....
What I am afraid of is that a person would be able to walk in and obtain a licence, which amounts to an official Government stamp, to commence trading in this business, yet this person could be up to his tonsils in piracy. This section does not lay down any standards. A person would have to get a licence for all intents and purposes but if we find that this legislation is not working effectively it would be a good idea if the Minister had the power to amend the conditions under which a person may obtain a licence, be it a wholesale or retail licence, by way of regulation. That is all I am asking the Minister to do. This would be a safeguard. I know the Minister does not want to get involved——
It is my intention to keep the number of restrictions on trade to a minimum but I will bear in mind what the Deputy has said and will examine the matter further.
If it comes to the Minister's notice that licences were granted to those who were clearly involved in the piracy game he would be able to change the rules under which licences are granted by way of regulation. It would be wise to adopt this power.
I can see what Deputy Barrett is getting at, that circumstances do change and that one does not want to have too cumbersome procedures which cannot be altered. However, I would advise the House against giving wide powers to the Minister to unnecessarily amend legislation by way of regulation but the conditions attaching to the issuing of licences could be changed by way of regulation.
My intention is to keep the number of restrictions on trade to a minimum. I appreciate what the Deputy has said and I will take a look at the matter. We can raise this matter again on Report Stage but I am not anxious to include such a provision. The poor old Minister for Justice has already more than enough to do.
He has enough regulations to make.
If the Minister for Justice was seen to be standing over the issuing of licences to persons involved in the piracy game the Office would look ridiculous.
There is something in what Deputy Barrett is saying. While one may close off as many loopholes as one sees they will find others which one has got to try to deal with. I can understand the Deputy's concern and I will take another look at this matter.
Amendment agreed to.
I move amendment No. 47:
In page 15, subsection (2), line 45, after "licence)" to insert "authorising the person".
Amendment agreed to.
I move amendment No. 48:
In page 16, subsection (3) (a) (i), lines 3 and 4, to delete", if it is a retail licence,".
Amendment agreed to.
I move amendment No. 49:
In page 16, subsection (3) (b), lines 15 and 16, to delete", if it is a retail licence,".
Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.
I move amendment No. 50:
In page 16, lines 32 to 37, to delete subsections (1) and (2) and substitute the following:
"(1) Subject to the provisions of this section, a person shall not sell, or let on hire, a video recording except in accordance with a licence for the time being in force.".
Amendment agreed to.
I move amendment No. 51:
In page 17, subsection (5), line 16, to delete "or (2)".
Amendment agreed to.
Section 18, as amended, agreed to.
SECTION 19.
I move amendment No. 52:
In page 17, subsection (2), line 25, to delete "for the accused to prove that he" and substitute "to prove that the accused".
This is a drafting amendment.
Amendment agreed to.
Section 19, as amended, agreed to.
Sections 20 to 22, inclusive, agreed to.
SECTION 23.
I move amendment No. 53:
In page 19, lines 15 to 23, to delete subsection (1) and substitute the following:
"(1) If—
(a) a person is convicted of an offence under section 4, 5, 7, 8, 11, 12, 18, 19 or 20 of this Act, an offence referred to in section 15 (2) of this Act committed after the commencement of this section or an offence under the laws relating to copyright committed in relation to a video recording after such commencement,
(b) he has previously been convicted of any of those offences, and
(c) the offence or offences referred to in paragraph (b) of this subsection of which he has previously been convicted was or were committed at any time not earlier than 5 years before the commission of the offence referred to in paragraph (a) of this subsection,
the court shall—
(i) in case the person is the holder of a licence for the time being in force in relation to premises where any of the offences aforesaid was committed, order that the licence or licences be forfeited, and
(ii) order that the person be disqualified for a period of 5 years from the date on which the order takes effect for holding a licence in relation to any premises where any of the offences referred to in paragraphs (a) and (b) of this subsection was committed or any premises in relation to which he is not the holder of a licence on that date.".
The main purpose of the new subsection (1) of section 23 which this amendment proposes is to relax the strictness of the subsection in its present form as regards disqualification from holding a licence to sell or let video recordings. The present subsection provides that if the holder of a wholesale or retail licence is convicted of any of a number of offences, such as selling a video recording containing an uncertified video work, and has previously been convicted of any other such offence, committed not earlier than five years before the commission of the first mentioned offence, the court shall order that his licence be forfeited and he be disqualified for five years from holding a licence.
One effect of this would be that if the owner of several shops was convicted of selling a recording of an uncertified video work in one of his shops and had a relevant previous conviction he would be disqualified for five years from holding a licence to sell at any of his shops. I think this would be too severe and the amendment proposes therefore that the offender should be disqualified from holding a licence only in relation to the premises where the offences were committed or in any other premises for which he had no licence at the time the order of disqualification took effect. Therefore, he would still keep his licence in respect of the shops other than those where any of the relevant offences were committed within the five years but he would not be able to get a new licence for any other shop until five years from the date the disqualification order takes effect.
The amendment also makes two smaller changes as compared with the section in its present form. First, it adds to the offences giving rise to disqualification. The offence referred to in section 15 (2) is importing a video recording of a prohibited video work. This is also an offence which can give rise under section 27 to forfeiture of an illegal imported video recording. Secondly, the amendment provides that offences, such as illegal importation of breach of copyright, which could give rise to disqualification from holding a licence, would be limited to offences committed under section 23.
Amendment agreed to.
Section 23, as amended, agreed to.
SECTION 24.
I move amendment No. 54:
In page 19, subsection (1), line 41, after "warrant" to insert ", on production if so requested of the warrant,".
Amendment agreed to.
Section 24, as amended, agreed to.
Sections 25 and 26 agreed to.
SECTION 27.
I move amendment No. 55:
In page 20, subsection (1), to delete lines 36 to 41 and substitute the following:
"(1) If a person is convicted of an offence under this Act (other than an offence under section 20 or 21 of this Act) or an offence referred to in section 15 (2) of this Act committed after the commencement of this section, the court may order a video recording that is shown to the satisfaction of the court to relate to the offence".
Apart from a small verbal change at the beginning of the subsection the only change is to remove the requirement in the subsection in its present form that before the court may order the forfeiture of a video recording the recording must be produced before the court. The reason for the amendment is that there may be a large stock of video recordings involved in the offence and it would be an unnecessary inconvenience to require their production in court.
It would still be necessary for the court to be satisfied that the video recordings are the ones to which the offence relates and if the court is in any doubt on the matter it could still require the recordings to be produced. With the amendment the section would correspond to section 11 of the Prohibition of Incitement to Racial, Religious, or National Hatred Bill, 1988, now before the House.
Amendment agreed to.
Section 27, as amended, agreed to.
SECTION 28.
We now come to deal with amendment No. 56 in the name of the Minister. Amendment No. 57 is related and it is proposed therefore to take amendments Nos. 56 and 57 together. Is that agreed? Agreed.
I move amendment No. 56:
In page 21, subsection (1) (a), line 9, to delete "1989" and substitute "1990".
These two amendments provide that the first calendar year for which the Official Censor of Films and the censorship of films appeals board are to make reports to the Minister for Justice on their activities under the Bill and under the Censorship of Films Acts shall be 1990 instead of 1989, as section 28 in its present form requires. This change is necessary because of the lapse of time since the year 1989 was proposed in the Bill as drafted.
Amendment agreed to.
I move amendment No. 57:
In page 21, subsection (1) (b), line 15, to delete "1989" and substitute "1990".
Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 agreed to.
SECTION 30.
Question proposed: "That section 30 stand part of the Bill."
Section 30 commences by stating a strange thing. It states that the Minister may make regulations for the purpose of enabling this Act to have full effect. I do not know what is envisaged by this. Whatever is envisaged it should not be there. It is altogether too wide, though I have not the slightest objection to the following part remaining which provides the Minister may make regulations dealing with the categories mentioned in paragraphs (a), (b), (c) and so on. That is perfectly in order, but a wide ranging, sweeping statement that the Minister may make regulations for the purpose of enabling this Act to have full effect, is an easy way out for the draftsman. If they want to give the Minister power to make regulations they will have to specify exactly what he is supposed to be making regulations for. It is a very dangerous precedent to give any Minister of whatever political party sweeping powers of that nature. When the Minister is making regulations he is making law, and we in this House ought to be able to look at that and see what power we are delegating. That is normal procedure. This is altogether too wide and it is very dangerous to give him a power of that nature. I do not know whether he wants that kind of power but whether he does or not the House should not give it to him. I am objecting to this section.
I would like——
Deputy De Rossa, I anticipate your chivalry.
Thank you, Deputy De Rossa. I reiterate what Deputy Taylor said. In fact, I referred to this a couple of minutes ago. The notion of giving any Minister the right to amend legislation effectively by regulation when it is not specified in the Bill is totally against the way we should be operating in this House, and I will not support it. Subsection (2) continues this approach to the legislation when it provides: "Regulations under this Act may make different provisions for different kinds of video works and licences"— I agree with that —"and for different circumstances". That needs explaining. I do not understand its significance.
Maybe Deputy De Rossa——
I did not see the point raised by Deputy Taylor and Deputy Colley. I wanted clarification of subsection (2). What does "make different provisions for different kinds of video works and licences and for different circumstances" mean exactly? It is not clear. What kind of differences?
This is a common formula in legislation. Of course, any regulations made under it would be subject to a negative resolution of the House, if that was the decision of the House. Secondly, Deputy Colley is incorrect when she says under this section I would have power to amend the legislation. I do not.
Effectively.
No. The main reason for this section is that the operations involved here will have to be phased in. It will not come in altogether, and different dates will have to be made for the different phases. Different sections will come in at different times. For instance, the censor will have to look at video nasties already on the market, and they will have to be banned. Then he will have to set a date for new films coming in from the UK or wherever, he will have to deal with a backlog and there will be a date for licences to trade. That is all that is involved here. I assure the House I want no statutory authority in any shape or form to do anything other than to ensure that the different sections of this Bill can be phased in when it is appropriate to do so and the film censor is ready.
Section 34 gives the Minister that power.
I am assured this is a common formula. In other Acts where this formula is used, the House has the ultimate way of dealing with it in that it can, if it so requires, negative any regulations made by the Minister.
I can understand what the Minister is saying. He needs certain powers to introduce the Bill, or Act as it will then be, in different phases. Deputy Taylor has a point when he said section 34 could enable the Minister to do that. Notwithstanding that, there are three separate areas which have been singled out for the making of regulations, and if we restrict the making of regulations to those areas, that will be perfectly acceptable.
Regarding the last few words in subsection (2), "and for different circumstances", the Minister has not addressed himself to that. I assume what is meant there is that as the technology changes different types of video works are made available, and one would have to change the definitions constantly to allow for that if regulations could not do so. I presume that is what is intended there. If it is not, the Minister might address himself to that. The phrase does not seem to have any meaning.
Perhaps before Report Stage when we will have another opportunity, I will provide a full explanatory note to all Members on the reasons for the section that might be helpful.
And we will agree to have a look at it on Report Stage.
We will have a look at it on Report Stage and in the meantime I will produce a full explanatory note.
It is perfectly in order for any Minister to come into the House and say he seeks power to make laws by regulation to cover certain matters. The House may look at them and consider it appropriate for that matter to be dealt with by ministerial regulation rather than by an amending Act, but at least the House must see what the Minister is talking about.
Paragraphs (a), (b) and (c) set out categories of items. That is fair enough, that is in order, that is acceptable. The first part of subsection (2) "Regulations under this Act may make different provisions for different kinds of video works and licences" is also acceptable, but this is what I might call crude, attempted catch-all drafting just in case the Minister takes power to make regulations for the purpose of enabling this legislation to have full effect, might not even be constitutional. I have doubts whether that kind of wide ranging provision is constitutional. It is not acceptable. It is too wide. If the Minister wants to have power to make regulations on any aspect of this Bill, fair enough, spell them out, specify them category by category as he has done in paragraphs (a), (b) and (c), but for goodness sake do not come in and attempt this catch-all lazy drafting which should not be acceptable to a democratic assembly.
The Minister has referred to the next section so I will refer to it as the negative resolution procedure, for want of a better word. Is the Minister suggesting to the House that it is effective or reasonable for an Opposition party to usefully avail of its powers? I am sure he knows and has said — many of his colleagues did when they were in Opposition — it is absolutely useless and of no value to some Opposition parties. It might be all right for Fine Gael who have plenty of Private Members' Time because a motion to annul can be taken only in Private Members' Time. When do we have Private Members' Time? How long do the Progressive Democrats or the Labour Party have to wait to get their share of Private Members' Time? Considerably more than the 21 working days that are allowed in the negative resolution.
The unfortunate Workers' Party are even worse off because they have no Private Members' Time at all. So, if they were minded to move an annulling resolution they would be unable to do so. Therefore, if there is to be a provision dealing with the annulling of regulations it ought to be a positive resolution — to provide that the regulations do not come into force unless the Dáil passes a resolution approving of them. That would be a much better procedure. It would be a better form of draft. I intend raising this issue on every occasion a Bill contains this miserable negative resolution procedure. Unless the Minister tells the House that he will give serious consideration to deleting that objectionable aspect of that section I will have to call a vote on it.
I should like to repeat, for the benefit of Deputy Taylor, that I will examine this matter between now and Report Stage to try to meet the concerns raised by him and other Members.
That is acceptable.
Question put and agreed to.
SECTION 31.
Question proposed: "That section 31 stand part of the Bill."
I should like to agree with the points made by Deputy Taylor in regard to the negative motion procedure for the changing of regulations. I am on record as having raised this matter on almost every Bill that I dealt with in the House. It is not that I believe that it should be necessary to have positive motions for all regulations that come before the House because clearly the House would not have time to deal with them in that way but serious consideration should be given to the way negative motions are dealt with. I have checked the Dáil records to see when a motion implementing regulations was challenged and my understanding is that such a motion was challenged only once in the last 20 years. That was because primarily a negative resolution can only be taken in Government time with the permission of the Government and Governments have consistently refused to do that except on the occasion I mentioned which was in the late sixties or early seventies. Another way of taking such motions is in Private Members' Time but even parties like Fine Gael or Fianna Fáil, when in Opposition, who have a fair slice of Private Members' Time, are reluctant to forego that time to deal with regulations which I and other Opposition parties argue, should be dealt with in Government time. This should be taken on board by the Minister.
I accept that this is something the Minister cannot easily resolve. I am not arguing for positive motions for regulations in every Bill because that would not be practical. I am prepared to wait until Report Stage to see how the Minister proposes to deal with regulations under the Bill. Something substantial has to be done with regard to the way regulations are dealt with. I should like to give one example of what I am talking about. The House has been agreeing regulations under section 31 of the Broadcasting Act since 1976 and not once since then has there been a debate on those regulations despite the fact that there is considerable concern outside the House as to how they operate. Members will be aware of my views in relation to the people covered by those regulations but, at the same time, there is a civil rights argument to be considered in regard to them. The regulations have not been debated in the House for more than 13 years. There is an argument for looking at how the procedures of the House permit Members, whether they are Independents, Members of small parties or of large groups, to challenge regulations made by way of negative motions. I should like to ask the Minister to make a mental note of that case. We should not have to constantly plead for access to challenging regulations.
The point has been well made.
Does the Minister intend to respond to Deputy De Rossa's point?
I accept the view put forward by Deputy De Rossa. There is a problem in regard to how the business of the House is regulated and ordered. The Deputy said he was not insisting that there should be a positive presentation of ministerial orders but was offering his view on the matter. I will pass his comments over to the Government Whip; I cannot do anything more than that.
The Minister could make a positive resolution instead of a negative one.
Deputy De Rossa was fairly practical in the way he dealt with that issue. There are so many orders, hundreds and hundreds of them, that if they had to be dealt with in a positive way we would not get anything done here except pass orders. The larger parties have the wherewithal to deal with those orders effectively but Deputy De Rossa has a genuine difficulty. I will ensure that the Government Whip is made aware of that difficulty.
I note that section 31 states that an annulling resolution should be passed within 21 sitting days. This represents an improvement on the usual formula of 21 days.
The usual formula always refers to 21 sitting days.
It is not always expressed in that fashion. I share the concern of other Members at the fact that it is extremely difficult to get time to debate such motions in the House.
The House will be aware that this is a matter for discussion by the Committee on Procedure and Privileges. The Government Whip, with the Whips and representatives of the other parties, could discuss this matter there. The matter should be resolved at that committee but I will convey the concern expressed by Deputy De Rossa to the Government Whip and, if he advises, to the Government.
Question put and agreed to.
Sections 32 to 34, inclusive, agreed to.
Title agreed to.
When is it proposed to take Report Stage?
There is a lot of work to be done between now and Report Stage and it is best if it is left to the Whips to decide on a date for that Stage.
Ordinarily we indicate a date that is not necessarily binding.
I suggest that Report Stage be ordered for Wednesday, I March, subject to agreement between the Whips.
Report Stage ordered for Wednesday, 1 March 1989.