Private Members' Business. - Radio and Television (Amendment) Bill, 1999: Second Stage.

I move: "That the Bill be now read a Second Time."

I wish to share my time with Deputy Gay Mitchell.

Is that agreed? Agreed.

This Bill arises from the Independent Radio and Television Commission's recent refusal to accept an advertisement for broadcast placed by The Irish Catholic, a religious newspaper. The refusal was based on section 10(3) of the Radio and Television Act, 1988, which states:

No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.

Times have changed since then and the country has gone through a great deal of turmoil and trauma in relation to certain religious and political events.

If there is an after life – as the years pass I like to believe that there is – then it is possible that some of those departed from this House over the years might be eavesdropping on us. If they are, I am sure they can afford a wry smile that we are here to amend legislation which sought the banning of an advertisement for the promotion of The Irish Catholic in Ireland. I think of the many people from constituencies across the country who served here in the past and wonder if any of them would have believed that this could happen.

We live in an increasingly complex and secular society which continues to work hard to ensure that it is truly inclusive and pluralist. Catholics, Protestants, Jews, Buddhists, agnostics and atheists comprise vital parts of what has been called post-modern millennial Ireland. There are those in the mix of contemporary Irish society who may take grave exception to the views, teachings and doctrines of the Catholic Church. They believe official Church pronouncements are nothing more than that in the most hollow, cynical sense – at best irrelevant and patronising and at worst self-serving, oppressive cant.

There are still more who feel quite neutral towards the Catholic Church or any other form of organised religion. They may have been born, raised and educated in their faith, whatever that faith might be, but at this stage in their lives they feel it has nothing to do with them. They may say they are searching for their own individual way, path, form of spirituality or worship.

Equally, in contemporary Irish society there are those who believe absolutely in strict adherence to the teachings of the Church. They would argue that when one joins the club one agrees to accept and abide by the rules. To their mind, it is quite simple – either stay or go; one is either in or out.

However, there is a significant and increasing body of people in Irish society who may have been less than diligent in the past in the regular practise of their religion but who are now returning to it largely because of their children. If asked, they will say that it is one thing to decide for themselves but quite another to decide for their children. They face a future where baptisms, first communions, confirmations, etc., will have to be considered. They come back to the Church with due consideration, often having thought long and hard not only about whether to return, but about how and why.

They return on what they say are their own terms and with their own carefully formed set of ethics on the traditional thorny moral issues which characterised debate in the past. They are far more concerned with unemployment, fair employment, poverty and social and economic justice issues than they are about condoms, contraception and the other exotica of the ritual moral antagonisms of the not too distant past. They are what are frequently branded "à la carte Catholics”. One might say, without wishing to offend anybody, that they may well agree with the recent observation that while the Catholic Church is absolute about beliefs and rules, Irish Catholics are more relative about them. Such an observation sums up the complexities and contradictions surrounding the practise of Catholicism in Ireland today.

The rise of the individual and the secular would, if not altogether preclude, make extremely unlikely the acceptance by society of the absolutes which in the past it appeared to accept – if not entirely without quibble then without declared quibble. If we had such a no quibble policy in the past, we have clearly left it behind. We have swapped it for one which demands accountability, transparency and responsibility in all areas of life, particularly those areas which in the past were considered sacrosanct and, therefore, dangerously above reproach, commonly above question and, in many cases and most regrettably so, above the law itself.

There are two tribunals investigating politicians and potential political corruption. The banks and financial institutions are under the most intense official and public scrutiny. In the past week we have seen the Judiciary not only become publicly accountable but make a concerted effort to accede to demands to be seen to be publicly accountable. Over the past five years or so the Catholic Church has had to face up to and assume responsibility for a vast body of error, the kind of aberrations, grievous harm and recklessness which, as was said since, make the Bishop Casey story seem like the good old days of the Church in Ireland.

In the time of the late Dr. Noel Browne's mother and child scheme, who would have contemplated that such things would be possible in Irish political, financial, judicial and religious life, let alone believe that in their lifetime such things would come to pass regularly? Who would have contemplated that the views expressed in The Irish Catholic would be publicly commented upon as being those of the minority. I suppose it is a case of man biting dog. The crozier, which was so well and strategically belted in the past, would appear for a time at least to have found an interest in self-mutilation. How the mighty have fallen.

We live in a society where old ideologies are dying; a society which is precipitating and accommodating vast changes in all facets of life and which is increasingly convinced that religion and spirituality are most definitely not one and the same thing.

In my constituency and in many other constituencies, we are witnessing a clear rejection of consumerism and its complex entrapment as people abandon the rat race of the cities and the corporate world to opt instead for simpler ways of life. Some years ago it was the Germans and the Dutch who sought a safe haven in remote west Cork, Mayo, Galway, Donegal or Connemara, but today it is our own people who, in their quest for something else, are relocating to rural Ireland. One need only look at the huge success of the rural resettlement scheme and the ever growing lists of people from places such as Ballybrack, Sallynoggin, Dolphin's Barn and Ballymun waiting patiently for the chance to start a new and better life. They are the people searching for that something else. That is a good indicator of the social flux in which we are now. The rising tide and its much vaunted ability to lift all boats is not much use without a boat. People who in the middle of the week are yet again trying to figure out what the family will eat before the next social welfare payment is due could not care less about rising tides. In instances such as this we could be forgiven for thinking that the so-called Celtic tiger has been savaged by its cubs.

However, there is another side to this story. The increasing pressure of the tiger economy not only drives people to escape but also facilitates it. Rapid advances in telecommunications are radically redefining the notion of work and where and how it is done. People in the remote parts of Ireland are working successfully with clients and corporations all over the world. Thanks to ISDN, broad band and other forms of high speed connectivity, with which the Minister is familiar, are networked efficiently at the flick of a switch, no fuss basis to Dublin, London, New York, New South Wales or Alaska. We are no longer jiving at the crossroads. Thanks to technology we are collaborating and connecting globally at them.

In this era of accelerated tradition, traditional religious practice may be waning. However, the quest for the spiritual or that something else is as strong as ever. Events such as the annual mind, body and spirit conference at the RDS are packed to capacity every year. Nationally, sales and publication of books on alternative forms of spirituality are at a record high. The continued success of work such as Anam Cara by Fr. John O'Donoghue which is still on the hardback and paperback non-fiction best seller lists demonstrates we are no strangers to mythical or mystical terrain.

So, when the Independent Radio and Television Commission recently banned a proposed advertisement for The Irish Catholic from local radio, some people may have thought we were on mythical terrain, so mythical as to be considered, in the literal sense, quite fabulous. I do not believe the Independent Radio and Television Commission acted badly in making its decision, the Act is very clear. Despite that, some said that the pendulum had not so much swung as had been pushed so far in the direction of the liberal agenda as to be considered completely farcical. The Independent Radio and Television Commission acted in good faith and interpreted the existing legislation in strict accordance with the wording which we propose to amend.

The amendment put down by me and Deputy Gay Mitchell takes full account of the complexity of Irish society and would prevent such situations recurring. It allows for an advertisement promoting the sale of bona fide political or religious journals or newspapers with a cover charge, provided the Independent Radio and Television Commission is of the opinion that the journal or newspaper is both bona fide and that the nature of the advertisement is directed at the promotion of the journal or newspaper per se and is not sectarian or directed towards a political end. It offers what we consider to be an equitable, viable and practicable alternative to the current wording, which was recently considered to be open to interpretation.

One frequently hears Magill, a political magazine, being advertised. If the wording used by The Irish Catholic had been changed slightly, it may have passed Independent Radio and Television Commission scrutiny. The interpretation of the legislation as regards the advertisement for The Irish Catholic resulted in widespread concern for both freedom of the press and freedom of expression.

Ironically, it is a fitting reflection of the complexity and ambiguity which characterise contemporary Ireland that the Irish Independent, so often lambasted by conservatives as a bastion of the liberal agenda, asserted in its editorial on 19 February last that in The Irish Catholic scenario, freedom is not freedom unless it is freedom for all. It is like Voltaire's famous statement “Though I disapprove of what you say I will defend to the death your right to say it”.

We must have strict and adequate legislation to ban sectarian, deliberately divisive or blatantly politically motivated advertising from our airwaves; I support that. To do anything other than that would be to collude in a propagandist mentality that could unleash the ethically motivated savagery which is relentlessly beamed into the sitting rooms of the country from Kosovo, Macedonia and Albania.

We must look at the situation closer to home. On this island, great effort and hope is being expended in getting historically divided communities to accommodate the otherness of the other. In an increasingly mediated world it is essential we have legislation which underpins, fosters and upholds absolute impartiality and the sovereignty of the fact and never the sovereignty of the many artfully spun versions or interpretations of that fact.

What is wrong with family values? I am a family man with a wife and three children. I firmly believe in the family unit and all that implies, I am not an exception. However, there is a backlash against those who have sought to subvert the idea of family ideas to their narrow subjective and often highly political ends. It is important that we as legislators understand and do something about it.

Reclaiming family values and all that that term implies is, in its very simplest sense, for all those who believe in those values and do so without an agenda. It is too important an issue to become the sole property of any side in national, moral and social debate. It is important to restore balance where necessary and to work to maintain that once it is achieved. When I say I support and believe in family values, I do not align myself with any camp; I am merely stating a fact, not using an interpretation of fact for a particular end because I am what I would describe as a family man.

The amendment put down by me and Deputy Gay Mitchell squarely faces up to this situation. We are more concerned, as it was described in a different context, with the drama of absolute oppositions than with asserting truths. We in this party believe it is incumbent upon us as elected representatives and legislators to always assert those truths, regardless of how uncomfortable or downright unpopular they may be.

I suggest to the Minister that she look carefully at the current situation. The UK Radio Authority codes governing religious advertising, which I am sure are available to the Minister, set out a range of instances where advertising can take place, including simple announcements, for example, about visits to Lourdes, charity collections or religious music. There is scope to do something about this section of the Act. It should be possible to accept our amendment which will allow bona fide religious and political journals with a cover charge to be advertised, where it is clear to the Independent Radio and Television Commission that they are not geared to a political or sectarian end. In this day and age we are big enough to include this in our legislation. I do not want it to be the case that every half baked religious or political idea is advertised on radio or television; I am talking about bona fide journals or newspapers which are acceptable to the Independent Radio and Television Commission after scrutiny. It would eliminate the fear of churches or religious bodies which want to advertise their particular ethos or philosophy.

I ask the Minister to look at the situation in as broad a manner as she can. There is a body of opinion that if Archbishop Neary and Bishop Finnegan want to bring a pilgrimage to Lourdes they should be entitled to do so, to advertise it and have it referred to in news items on local radio. If they want to produce a newspaper about that it should be available for sale, with the proceeds to go to the Church or a charity. It should be possible to advertise it on local radio so that people would know it was available and could buy it. That would mean a great deal to such people at a time when they have come under a great deal of pressure for a variety of reasons.

I hope the Minister will realise from the nature of the arguments made by Deputy Kenny and I that we seek to redress an injustice and liberty for religious broadcasting – not something outside the mainstream but a reasonable and decent approach to this matter.

The Radio and Television (Amendment) Bill, 1999, sets out to amend the 1988 Act to ensure that reasonable radio advertising of religious magazines and periodicals can take place.

Section 1 amends section 10 of the 1988 Act, and is the main provision of the Bill. As Deputy Kenny said, section 1 sets out to create a new section 3A to read as follows:

Notwithstanding anything contained in subsection (3) of this section, advertisements which promote, or can reasonably be construed as promoting, the sale, for a cover charge, of bona fide political or religious journals or newspapers, may be broadcast on radio or television, provided the Independent Radio and Television Commission is of the opinion that –

(a) the journal or newspaper is a bona fide publication, and

(b) the nature of the advertisement is directed to the promotion of the journal or newspaper, and is not sectarian or directed towards a political end.

We are not saying that everyone has an automatic right to advertise any religious or political magazine. The Independent Radio and Television Commission must be of the opinion that it meets the criteria in paragraphs (a) and (b) in the section.

The need for such an amendment arises because the Independent Radio and Television Commission interpreted the 1988 Act in such a way as to ban an innocuous advertisement for a respected journal, The Irish Catholic, as Deputy Kenny pointed out. It is most alarming that no Government spokesperson has commented on this issue. Must the Farmers Journal or the Palm Sunday, St. Vincent de Paul Advocate be banned before public representatives take this decision to task?

The Independent Radio and Television Commission said that it was approached by Highland Radio, which sought a ruling as to whether it would be permitted to accept an advertisement for The Irish Catholic. The station was concerned, it appears, that the advertisement in question might not have been permissible under section 10(3) of the 1988 Radio and Television Act. This Act states that “no advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute”. Having considered this matter, the Independent Radio and Television Commission informed the station that the advertisement would not be permissible under this section of the 1988 Act.

The Independent Radio and Television Commission's interpretation of the Act and its constitutionality was, the Independent Radio and Television Commission states, challenged in the courts by Mr. Rory Murphy of the Irish Faith Centre. A decision in favour of the Independent Radio and Television Commission was given in the High Court by Mr. Justice Geoghegan in April 1997 and it was subsequently upheld in the Supreme Court in May 1998, according to the Independent Radio and Television Commission. The Independent Radio and Television Commission claims that, in making its decision in the case of The Irish Catholic, it was obliged to have regard to both the statute and the Murphy judgment. The Independent Radio and Television Commission said in a statement that it had no discretion in this matter.

The following is the content of The Irish Catholic advertisement which gave rise to the decision by the Independent Radio and Television Commission and this Private Members' Bill :

Male voiceover: The Irish Catholic– a lively and provocative family newspaper that connects the issues of today with the teachings of the Church.

Female voiceover: A refreshingly different point of view that entertains as it informs about the things that really matter.

Male voiceover: If you expect more from a family newspaper than a diet of sex and sensationalism.

Female voiceover: If you like good writing, often controversial but never dull.

Female voiceover: .buy The Irish Catholic every Thursday from your local church or shop.

Male voiceover: The Irish Catholic.

Female voiceover: A thoroughly good read for the whole family.

Did any Member of this House, when voting for the 1988 Act, believe that such an innocuous advertisement could be banned in this way? The Fine Gael Private Members' Bill sets out to remove any doubt about the entitlement of publishers to advertise such publications.

However, it is quite alarming that few public representatives had any comment to make on the decision, despite the libertarian implications of such a ruling. Quite clearly, if the Irish Press– which I am not including for any party political reasons because it did not occur to me when I was writing this speech which Minister would take this debate – were still in existence, given its slogan “For the glory of God and the honour of Ireland”, or “Do chum glóire Dé agus ónora na hÉireann”, it would probably not be allowed to advertise on radio, given the strict interpretation of section 10 of the 1988 Act.

Had the periodical concerned been a publication of, say, a minority religious group, I feel certain this matter would have received more prominent attention in this House. I wish to assure the House that I would be equally concerned about a similar ban applying to any similar advertising for any religious journal or magazine of this kind.

I wish to read the Irish Independent editorial of 19 February 1999, to which Deputy Kenny referred briefly, in full. It read:

The Irish Catholic is, as it boasts, “a lively and provocative family newspaper”. It is also a publication that strongly asserts minority views.

To hear it so described would have astonished its founders in the last century – and the country at large until very recently. Before the liberal agenda gained the ascendancy, its views were those of a majority. In the new climate, it is all the more important that their proponents should have full freedom to express them.

A pity, therefore, that the Independent Radio and Television Commission has banned a radio advertisement for the newspaper on the grounds that the law forbids the broadcasting of an adver tisement "directed towards any religious or political end".

The current issue of The Irish Catholic notes that the legislation is open to wide interpretation. It suggests that, short of a constitutional challenge, the Independent Radio and Television Commission should reconsider its decision. Failing that, the Oireachtas should amend the law.

It makes further points: the existing legislation is "presumably aimed at confrontational or proselytising ads, and press freedom is in question". We have no hesitation in endorsing the latter proposition, and the means of resolving the issue proposed by The Irish Catholic. Freedom is not freedom unless it is freedom for all.

Bully for the Irish Independent whose editorial says it all. The Irish Catholic editorial of 18 February 1999 states:

An advertisement by the Irish Faith Centre was banned in 1997 in part because the wording of the advertisement would, according to the judgment of the High Court, have led the listener "to at least favourably consider the proposition that Christ is the Son of the living God and that traditional beliefs about Christ are historical facts". In its advertisement, the Irish Catholic makes no direct assertions whatever about the nature of the Catholic Church or the content of the Catholic faith. It is simply an invitation to listeners to buy the paper. It tells them about the Irish Catholic and its contents, no more.

In recent days Members of this House have expressed concern about certain decisions taken by the courts. Some of these concerns are well grounded. We might also express concern at some of the decisions taken by this House. We are the directly elected House of Parliament in a democracy. As part of the checks and balances in the Constitution, we are meant to uphold the rights of citizens and not leave it to the courts to do so. This Private Members' Bill seeks to redress a grave injustice and a serious intrusion into the democratic rights of citizens to publish, read and advertise periodicals which are neither seditious, alarming or likely to corrupt public morals.

As we have seen, judges, like politicians, have feet of clay. We are all human. It, therefore, behoves this House not to leave it to the High Court or any other court to guarantee the freedom of conscience and liberty which each citizen should enjoy. It is a clear and primary responsibility of this elected assembly.

I hope this Bill is not voted down because it is a Private Members' Bill. It would be a healthy development if this House acknowledged that as part of the checks and balances Members of the Dáil have rights just as members of the Government have different rights. It is our duty to ensure that legislation is properly enacted. This is not the preserve of the Cabinet.

I am concerned at the plethora of powers we have given to different institutions outside this House, including the courts, statutory bodies such as the Independent Radio and Television Commission, local development partnership companies, State agencies such as An Bord Pleanála and health boards. Recent developments should be a timely reminder of our need to play a full role as a parliament in protecting the rights of and conferring responsibilities on the citizens of the State. I take this opportunity to congratulate the many journalists who came to the defence of The Irish Catholic and who were true to their profession because there is an important principle at stake.

Seán Lemass said that a state which measures its success by material things alone has lost its soul. I do not wish to sound 'holier than thou' or to seem to be more than a frail human being, but cultural and religious expression are as important to the future success of this nation as is political or economic development. We, as politicians and as a nation, behave like adolescents when it comes to religious matters. We are rebellious because we have found the freedom we believe we did not enjoy heretofore. However, we must be careful not to throw out the baby with the bath water. Religious expression is still an important part of the daily lives of the majority of people of all religious groupings on this island.

Would it be good if a radio station was dedicated to religious broadcasting with the necessary checks and balances imposed on those responsible for managing such a facility? We have a radio station dedicated to high brow music, for example, and this is a welcome development. Many members of the public, probably the majority, would support the establishment of a station licensed to broadcast religious material only. Why are we not reflecting their wishes in the legislation passed by this House? We have no right to suppress such wishes and it would not be subversive of the State if such a station was licensed to broadcast Christian and non-Christian material. I ask the Minister to give favourable consideration to this suggestion.

Much wrong has been perpetrated by influential people within the church and one reads with pain and anger of some of those abuses. We hope that in righting those abuses the church will approach the matter with a sense of justice and not just a sense of law. I also hope the modern church realises the yearning for it to be part of and to play an important, but not a controlling role in society. I hope a modern church with a full role for women and married persons will develop out of the turmoil and difficulties the church, particularly the Catholic Church, has experienced recently.

I praise and support the priests, nuns and non-Catholic ministers for their dedication to their beliefs and for the work they do in difficult circumstances and parishes in this city, for example, where we would not choose to work or live if we had the option. Few of them have an income which could be described as a salary or wage. I am talking about priests and nuns who work in the inner city, live in flat complexes and make great sacrifices. They do not get enough encouragement or support. We need them because the State cannot provide the type of services they provide.

I am alarmed at the increase in the number of suicides, particularly among young males, which is expected to reach 500 this year. I had a brief discussion today with Deputy Neville who is an expert in this area. Part of the reason for this hopelessness, which is more prevalent outside Dublin, is the emphasis we have placed on materialism. We need cultural things like we need bread and we need spiritual things like we need cultural things. We should not be embarrassed to say that and we should not put down those who are trying to encourage others to open their minds to the possibility of such spiritual things in a reasonable and fair way.

The Irish Catholic could not be described as an extremist magazine. I confess that I do not buy it every week but I will buy it more frequently now that it has been brought to my attention. I hope the Minister will support this Bill and allow the ban to be lifted. The provisions in this Bill are reasonable. We still allow the Independent Radio and Television Commission to make the decision but our job, as the representatives of the people, is to lay down the conditions. I hope reason and justice will prevail, that this great injustice will be redressed and that liberty for religious broadcasting will be restored.

This Bill is designed to amend section 10 (3) of the Radio and Television Act, 1988. The 1988 Act established the Independent Radio and Television Commission and put in place a statutory structure for independent radio and television services. Section 10 (3) of the Act provides that no advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute. This provision applies to all broadcasters who operate under the aegis of the Independent Radio and Television Commission. There is a similar provision in section 20 (4) of the Broadcasting Authority Act, 1960, which applies the same prohibition on this type of advertising to RTE.

Essentially we are dealing with a provision that is nearly 40 years old. It can be argued that it is timely to reconsider a prohibition such as is contained in these subsections. It can be argued that the blanket ban contained in these provisions is too blunt an instrument to be used in this day and age for what is now a largely well educated society with a sophisticated understanding of the way media, including the very powerful radio and television media, work. It is helpful to our debate that in the recent past the constitutionality of this very provision – that is, the prohibition on advertising directed towards a religious end – was tested in the courts during 1997 and 1998. Deputies will bear with me if I quote extensively from the High Court and Supreme Court judgments so that all can better appreciate the problems associated with this legislative proposal.

In the case in 1997 arising from the decision of the Independent Radio and Television Commission to instruct a local radio station to stop carrying an advertisement relating to the showing of a video directed towards a religious end, the constitutionality of the provision was challenged on four grounds. These were that the prohibition on advertising directed towards a religious end contravened Article 40.3.1 of the Constitution which confers a right to communicate, Article 40.6.1 which confers "the right of citizens to express freely their convictions and opinions", Article 44.2.1 which guarantees freedom of conscience and the free profession and practise of religion to every citizen subject to public order and morality and Article 44.2.3 which prohibits any imposition by the State of any disabilities or the making of any discrimination on the ground of religious profession, belief or status.

Mr. Justice Geoghegan in his judgment concluded, inter alia, that the prohibition of the advertisement was not an attack on freedom of conscience or the free practise of religion. He indicated that if anything the advertisement might be an intrusion into the quiet possession of religious beliefs. He also concluded that it did not appear to him that the refusal of such an advertisement constituted a discrimination on the ground of religious profession, belief or status as prohibited by Article 44.2.3º. In dealing with the contention that the prohibition on advertising towards a religious end was contrary to Article 40 of the Constitution, the justice concluded that:

It is sufficient in my view if there were good reasons in the public interest for the ban. Irish people with religious beliefs tend to belong to particular churches and that being so religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytising. Religion has been a divisive factor in Northern Ireland and this is something that the Oireachtas may well have taken into account. .. a person listening to commercial radio is for all practical purposes compelled to listen to the advertisements. That being so, it is legitimate for any Oireachtas to have regard to the type of advertisements which might be permitted. The impugned section enjoys the presumption of constitutionality. It is not obvious to me that a restriction on religious advertising is not a reasonable restriction in the interest of the common good on this particular form of exercise on the right to communicate.

On the argument that the blanket ban was not proportional, Justice Geoghegan said:

I cannot accept this view. On the legislation as it stands there are very few limitations on the right to advertise and in that sense proportionality has already been taken into account. But at any rate, I do not think that one could subdivide religious advertising. Once a reasonable view can be put forward that religious advertising might be undesirable in the public interest, it would be impossible in practice to devise a wording that might have the effect of permitting certain alleged categories of innocuous religious advertising. It is the fact that the advertisement is directed towards a religious end and not some particular aspect of a religious end which might be potentially offensive to the public.

The Bill before us attempts to provide for the very situation which this judgment warns us against. While I believe the Oireachtas is not prevented from considering amendments to and even the repeal of this provision, we must be extremely careful in our approach to this issue.

The High Court judgment was appealed to the Supreme Court. In May 1988, the Supreme Court upheld the decision of the High Court that the prohibition on advertising directed towards a religious end contained in section 10 (3) of the 1988 Act was not unconstitutional. In its judgment, the Supreme Court saw it as important to stress that there are three kinds of advertisements which were totally banned: advertisements which are directed towards any religious end; advertisements which are directed towards any political end and advertisements which have any relation to an industrial dispute.

The Supreme Court was of the view that:

One can best glean the policy of the Act by looking at the three kinds of prohibited advertisement collectively. One might get a false impression by singling out one kind of banned advertisement and ignoring the others. All three kinds of banned advertisement relate to matters which have proved extremely divisive in Irish society in the past. The Oireachtas was entitled to take the view that citizens would resent advertisements touching on these topics broadcast into their homes and that such advertisements, if permitted, might lead to unrest. Moreover the Oireachtas may well have thought that in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals.

The Supreme Court found that the provision amounts to a certain limitation on the applicant's right freely to profess his religion, on his right of free communication and on his right of freedom of expression. It concluded that the real question was whether the limitation imposed upon the various constitutional rights is proportionate to the purpose which the Oireachtas wished to achieve. The court found in that particular case that:

. . . the limitation placed on the various constitutional rights is minimalist. The applicant has the right to advance his views in speech or by writing or by holding assemblies or by associating with persons of like mind to him self. He has no lesser right than any other citizen to appear on radio or television. The only restriction placed on his activities is that he cannot advance his views by paid advertisement on radio or television.

It was argued for the applicant in this case that it would have been possible to have had, instead of a blanket ban on religious advertising, a more selective administrative system whereby inoffensive religious advertisements would be permitted and religious advertisements likely to cause offence banned. The Supreme Court in dealing with this argument said:

No doubt this is true. But the Oireachtas may well have decided that it would be inappropriate to involve agents of the State in deciding which advertisements, in this sensitive area, would be likely to cause offence and which not.

The court went on to conclude:

It therefore appears to the court that the ban on religious advertising contained in section 10(3) of the 1988 Act is rationally connected to the objective of the legislation and is not arbitrary, unfair or based on irrational considerations. It does appear to impair the various constitutional rights referred to as little as possible and it does appear that its effects on those rights are proportional to the objective of the legislation.

In dealing with the Bill, we are considering a proposal by the Opposition to amend a legislative provision that was found to be constitutional as recently as May 1998. We are being asked to amend a provision that was found by the Supreme Court not to be arbitrary or unfair and which impairs our constitutional rights as little as possible. The High Court and the Supreme Court acknowledged the sensitivity of the substance of the existing provisions of the section which the Bill is designed to amend. Anyone who reads these judgments must come to the conclusion that any amendment of the section which would give an agent of the State the power or responsibility of deciding which types of religious advertisements are permissible and which are not must be approached with great care if we are not to create considerable and perhaps insurmountable difficulties for the Independent Radio and Television Commission as suggested in the Bill.

We know the stimulus for the preparation of the Bill. It arose following the decision of the Independent Radio and Television Commission to prohibit an advertisement on local radio for the newspaper called The Irish Catholic. We would all agree that an advertisement for a newspaper such as The Irish Catholic is innocuous enough, as Deputy Mitchell said. However, the Independent Radio and Television Commission felt that the advertisement would be caught by the prohibition on religious advertising contained in section 10(3) of the 1988 Act and advised the station concerned not to broadcast the advertisement. I stress that in stating these facts there is no criticism of the Independent Radio and Television Commission's decision or actions in this matter. The commission is charged under section 4(7) of the Radio and Television Act, 1988, with ensuring that every radio station operating under the Act complies with the provision of the Act. It is, in the first place, for the commission to interpret the legislation and to act upon this interpretation and the legislation does not provide that it may ignore matters when it might appear that a breach of the legislation is innocuous.

The Bill appears to have as its intention that the Independent Radio and Television Commission should have the scope to determine whether a political or religious newspaper or journal is bona fide. Where the journal or newspaper is bona fide, advertisements promoting the sale, for a cover charge of such publications, will not be prohibited under section 10(3) of the 1988 Act, provided the advertisement is directed to the promotion of the newspaper and is not sectarian or directed towards a political end. If the Bill were to be enacted, the Independent Radio and Television Commission would have a number of decisions to make. It seems to me that these decisions would be whether a particular religious journal or newspaper is bona fide, where the Independent Radio and Television Commission has decided that a publication is bona fide, whether the advertisement promotes the publication and is not sectarian or directed towards a political end.

I am satisfied that the provisions in the proposed legislation would place the Independent Radio and Television Commission in the position of having to make a value judgment in distinguishing between publications. In order to come to a decision as to whether a particular publication is a bona fide political or religious journal, the Independent Radio and Television Commission would have to assess the goals of any particular publication and possibly the goals of the religious or political organisation itself. Furthermore, the Independent Radio and Television Commission would have to make an additional value judgment in determining what is or is not sectarian. The Bill provides no guidelines or parameters within which the Independent Radio and Television Commission can make these difficult and sensitive judgments.

There is no provision for an appeals mechanism even though the Bill would give the Independent Radio and Television Commission the power to discriminate between one newspaper and another without providing any detailed grounds for doing so. As I indicated earlier, the High Court and Supreme Court judgments indicated the practical and administrative difficulties that would have to be overcome if a selective ban on the type of advertisements covered by section 10(3) of the 1988 Act was to be introduced. The Bill does not provide any means for dealing with the concerns expressed in these judgments. It

would be foolhardy to progress without ensuring that we are not making matters worse.

Turning to the policy rather than the detail proposed in the Bill, it is legitimate to consider whether a more selective ban on advertising directed towards a religious end might be developed. However, to make the ban selective, the means selected would have to ensure that any system provided for assessing the suitability of advertisements would be applied within the limits of the Constitution and in a constitutional manner. At the very least, the rights contained in Article 44 of the Constitution would have to be respected and fair proceedings for those aggrieved would have to be provided. Making the ban selective could also be seen as a curtailment of the right to free speech and expression provided by Article 40.6.1 of the Constitution. It might be a wiser course to consider providing the Independent Radio and Television Commission with powers to ban a particular advertisement in relation to religious material if it considers that the advertisement in question offends public order or morality rather than possibly discriminating between different publications.

However, it is clear that advertising directed towards a religious end is a very special category of advertising. Advertising is to some extent regulated in most countries. Television advertising in particular is regulated throughout the European Union through, at a minimum, the Television without Frontiers Directive. That directive recognises the importance which individual member states attach to the regulation of broadcast advertising in that it provides that a member state may impose stricter regulation on broadcasters operating under its jurisdiction than is provided for in the directive.

The regulation of advertising tends to be based on the general provision that all advertising should be legal, honest, decent and truthful. This is provided for in the codes of standards, practice and prohibitions in advertising, sponsorship and other forms of commercial promotion in broadcasting services which were drawn up under the provisions of section 4(1) of the Broadcasting Act, 1990. The same basic principle is provided in the Code of Advertising Standards for Ireland drawn up by the Advertising Standards Authority for Ireland.

The Advertising Standards Authority for Ireland is a self-regulatory body, which was established by the advertising industry in 1981, and deals with advertising in most media including newspapers, posters and cinema as well as broadcasting. Understandably, the code drawn up under the Broadcasting Act, 1990, does not deal with advertising directed towards a religious end as there is a blanket ban on such advertising. On the other hand, the ASAI code specifically excludes advertisements whose principal purpose is to express the advertisers' position on political, religious, industrial relations, social or aesthetic matters or on an issue of public interest or concern from the scope of its code. It is interesting that the Advertising Standards Authority for Ireland decided not to apply its standards to these sensitive areas even though there is no statutory bar against it so doing.

It would be extremely difficult to regulate religious advertising in the same way as advertising for goods and services is regulated. How does one determine if an advertisement directed towards a religious end is truthful? No product or service is being sold. While religious advertisers may hold their beliefs with the utmost conviction, the claims made in such advertisements are matters of belief and are not measurable by any objective standard.

While I oppose the Bill, I am prepared to look at the policy which it attempts to put in place, that is, a more selective ban on advertising directed towards a religious end. If an appropriate amendment can be developed, I would hope to introduce it on Committee Stage during the passage of the Broadcasting Bill, which I hope to publish in the immediate future, through the Oireachtas. In considering an amendment, I will have to have regard for many of the issues raised in the judgments which I quoted earlier.

These issues include in particular in relation to matters of such sensitivity, that rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals; the provisions of Article 40 of the Constitution conferring a right to communicate and the right of citizens to express freely their convictions and opinions will be clearly respected, and the provisions of Article 44 of the Constitution which guarantee freedom of conscience and the free profession of and practice of religion to every citizen subject to public order and morality and which prohibit any imposition by the State of any disabilities or the making of any discrimination on the grounds of religious profession, belief or status will also be respected.

To achieve these aims it will be necessary to give consideration to devising fair procedures and natural justice measures to ensure that the body charged with regulating such advertisements will uphold and be seen to uphold these rights.

It may be that if we are to consider relaxing the existing total ban on broadcast advertising directed towards a religious end, we must inevitably consider the removal of the prohibition of the ban in its entirety rather than the introduction of a more selective prohibition. Given the concerns which I have already mentioned, it may be the only safe way to proceed. However such a step cannot be taken lightly. To proceed to a more selective prohibition or to the removal of the prohibition without qualification will need considerable thought and consultation. Broadcasting, both television and radio, is recognised as the most powerful mass communications medium ever developed. Audiences for certain programmes are measured in millions. Radio is a secondary medium in that it can be present while other activities in the workplace, the home or the car are being carried out. Unlike a newspaper or magazine where a page can be turned quickly after a brief scan, a person is compelled to listen to, or at least hear, a radio advertisement if the listener wishes to ensure that her or his enjoyment of the programme is not interrupted. Children and young people are constantly exposed to the images, messages and attitudes which are promulgated on radio and television.

Parents might quite properly wish to ensure that their children are exposed only to the religious profession of their choosing. It is possible that many such people would find advertising directed towards a religious end offensive simply because of the particular religious organisation which is making the advertisement. While it might be possible to prevent the broadcast of advertising directed towards a religious end during the hours of broadcasting devoted to children's programming, we all know that children and young people watch prime time television and listen to the radio at all hours so such a measure would only offer limited protection. I will not deal here with the alleged problems surrounding various cults and sects that have caused anxiety to families and whose activities could be interpreted as being directed towards a religious end.

We must proceed very cautiously in this sensitive area. Perhaps in an era of ever increasing numbers of broadcast services becoming available via satellite, which is outside the legislative regime which applies to indigenous broadcasters, the total prohibition on advertising directed towards a religious end is an anachronism. It may be time to rely on our broadcasters not to offend or alienate their audiences through unacceptable advertising in this area. However, any change to the present position must be brought about through careful consideration and consultation with bodies such as the churches, the Independent Radio and Television Commission and broadcasters and the public generally.

The Bill before the House does not address any of the concerns which I have mentioned. There are no definitions or parameters within which the Independent Radio and Television Commission would exercise the powers which the Bill seeks to confer on it. There are no safeguards or recourse provided for those who are aggrieved by the decisions which the Independent Radio and Television Commission might take if this Bill were enacted. The prohibitions in the Broadcasting Authority Acts relating to RTE are not addressed. While I accept that it is appropriate for the House to consider the policy proposed by Deputies Mitchell and Kenny in the Bill, and I commend them for bringing it forward, we cannot proceed without considerably more thought than is evidenced by the provisions of the Bill. The enactment of the Bill is likely to cause far more problems than it would resolve.

This is a sensitive issue and I commend the Deputies opposite for giving us an opportunity to discuss it at length. While I understand the laud able motives of the Deputies in publishing this Bill, it is important that further consideration is given to the matter. There will be an opportunity to discuss the whole issue of broadcasting when I publish my broadcasting Bill. I will consider this issue and could be in a position to look at the overall problem in that context. If wording can be found we can easily bring that into the Bill by way of an amendment on Committee Stage.

Tá áthas orm labhairt sa díospóireacht tábhachtach seo ar an Bhille Raidió agus Teilifíse (Leasú), 1999. Molaim Fine Gael agus an Teachta Kenny as ucht an Bhille seo a chur os comhair na Dála.

I listened to the Minister's speech and a number of aspects need clarification. This Bill is before us because of a radio advertisement that The Irish Catholic sought to place with the local radio station in Waterford, the area I represent, and Highland Radio in Donegal. We should look at the text of the proposed advertisement. A male and female spoke alternately. The male stated that The Irish Catholic is a lively and provocative family newspaper that connects the issues of today with the teachings of the church. The female voice stated that it is a refreshingly different point of view that entertains as it informs about the things which really matter. The male voice added that it is for those who expect more from a family newspaper than a diet of sex and sensationalism. The female finished by saying it is for those who think family values are worth preserving. No one could have a problem with that language. This was a commercial exercise by The Irish Catholic to boost circulation. All media outlets seek to do that.

The over-rigorous interpretation of the legislation by the Independent Radio and Television Commission then arises. The Minister placed emphasis on the use of the words "bona fide" in this amending Bill. The Labour Party does not favour censorship except in limited circumstances. There are, however, ways of dealing with problems which may arise from religious publications, such as the Public Order Act. If citizens or groups are offended they have the right to refer the cause of offence to the Garda or the DPP. If there are religious publications which are inappropriate or offensive, there is a route people can follow. The radio stations and the Independent Radio and Television Commission can exercise judgment.

It is crazy to ban an advertisement like this. It should be remembered that local radio stations depend on the revenue from advertising for their existence. The limitation of the advertisements they can take on questionable grounds must be eliminated. That is what the Bill seeks to do. If publications seeking political, religious or other ends contain unacceptable material on racism, sectarianism, etc., they can be referred under the Public Order Act. I do not believe that the censorship of publications in that sense is appropriate to the Independent Radio and Television Commission if the publications are acceptable in general, are seen as bona fide and have not caused any referral under the Public Order Act. If particular publications want to use local radio to extend their markets, that is legitimate commercial practice and it is to be encouraged. From that point of view I totally support the Bill.

There are some areas in the Bill the Labour Party may seek to amend on Committee Stage but that is another day's work. The Bill must first pass this Stage. I welcome the Minister's undertaking to examine this issue when the broadcasting Bill is published but I do not see the logic of voting down this Bill. My colleague, Deputy Michael Higgins, introduced the Broadcasting and Other Media (Public Right of Access or Diversity of Ownership) Bill some months ago which sought to address the area of cross-ownership in the electronic and print media, etc. In opposing Deputy Higgins's Bill, the Minister indicated these issues would be considered in the context of the broadcasting Bill but we have been waiting a long time for it. Accepting that Bill—

The Bill to which the Deputy referred concerned sporting events. I am publishing that Bill this week.

But part of that related to broadcasting in the context of ownership.

Yes, but that came under the jurisdiction of another Minister. The part for which I am responsible and in which I showed an interest – I brought forward a Bill when in Opposition – was of providing protection under the television without Frontiers Directive to protect certain sporting and cultural events and that Bill will be published this week. I did not mean to interrupt the Deputy but I wanted to provide information.

That is welcome and I compliment the Minister in that regard but other issues arise, for instance, if ownership of the media stretches too far. A particular philosophy, be it political, economic or whatever, could become the underlying theme in many publications and might have a subliminal brainwashing effect over a period. During the last general election a newspaper headline stated "It's payback time". That type of intrusion into the political area requires attention. When I see this type of censorship being implemented on the other side, I wonder if we have our priorities right as regards broadcasting or the media in general.

RTE's style of advertising the licence fees is offensive. The underlying approach seems to be to create fear in people and the impression is given that bad people do not pay their television licences. I am not encouraging people not to pay their television licence fee but there are many other areas of more consequence to the public good. It could be said that RTE has a dominant position in that it uses advertising to promote its own ends in obtaining licence fees. As I understand it, none of the licence fee goes to the local radio sector, and that is relevant in the context of this debate.

Some restrictions should be imposed on newspapers whose radio advertisements, designed to boost circulation on a particular day, intrude on the private life of an individual or which create certain impressions by way of innuendo. That is an area the Minister should address in the broadcasting Bill. Thankfully, it has not been a serious factor in the Irish media but we have seen this type of practice lately. We need to impose standards either by having an ombudsman for the media or a system of relatively quick redress where the media strays from a stated ethical position.

The Minister made a valid point that as the free market develops, we must ensure that the type of material that can be circulated in this country is suitable. Difficulties will arise if we regulate our indigenous media only to find that foreign media are in violation of that regulation.

The reference to The Irish Catholic brings us to the concept of pluralism. My view, and that of my party, is that freedom of expression should be as uninhibited as possible except where it intrudes into the areas where the Public Order Act can be brought to bear. There are certain sects of which we may not approve but that does not mean that their freedom of expression should be censored. Decisive action should only be taken to ensure that unacceptable racist or sectarian views are not promulgated.

There is a need for constant vigilance. Events in the former Yugoslavia bring to mind a comment made by Cardinal Conway in the early days of the Troubles that we should never under-estimate how thin is the veneer of civilisation. These events show how society can return to the worst kind of sectarianism. We also know of awful events in Ireland. I am not seeking to be alarmist but there are lines of thought evident in the UK which echo those of the 1930s over which none of us could stand.

When in Government, the Labour Party rescinded the order made under section 31 of the Broadcasting Act. There was divided opinion as to whether that was a correct decision. However, it helped to create the conditions which led to the peace process. There are times when restrictions are necessary but they are not normally a good idea.

I visited North Korea as part of a parliamentary delegation. Seeing the totalitarian nature of that society made me value the dissidence allowed in this country. We do not place restrictions on dissident views expressed in an acceptable manner. This Bill addresses an important issue. The Minister has stated her reservations and mentioned the relevant court decisions. However, she should allow the Bill go to Committee Stage and introduce amendments. She should not vote it down without giving the House an opportunity to amend it. If I understood her comments, an amendment to her Bill may not be submitted.

Debates such as this are useful and it is good that such legislation remains on the Order Paper so that the issue remains live. This gives the Opposition a chance to raise these fundamental issues on the Order of Business. I am not making these comments because my local radio station is affected. Local radio has been an important innovation which has boosted discussion and understanding on a plethora of issues. The standards have been high. This section of the broadcasting network needs all the assistance it can get. We are not serving the public if we introduce legislation which is too restrictive and which denies local radio stations a legitimate source of revenue.

The term "bona fide publication" needs clarification. A publication remains bona fide if it has not been the subject of a successful prosecution under the Public Order Act. People will quickly recognise and object to material which is seriously offensive or which has the potential of unleashing damaging forces on society. The Minister made the valid point that it would place an onerous task on the Independent Radio and Television Commission to ask it to distinguish between publications which are bona fide and those which are not. We must take a pragmatic approach which stipulates that the bona fides of a publication would be accepted if it remains on sale to the public without attracting serious objections. Modern society must move in that direction.

There is a danger that we are unintentionally entering the area of sectarianism. There are religious publications about which I am not happy. They are not on sale to the public but some of this material is circulated to Members of the Oireachtas. I would have serious reservations if this material was available to the public. I am not aware of any recent religious publication on sale to the public which contained offensive, sectarian material. The system will sort out these issues.

Publications such as The Irish Catholic are entitled to boost their circulation. Many people do not share the Catholic ethos or the views of The Irish Catholic. However, discussion and debate are important to religion and there is a heightened intellectual awareness of these issues. Fundamentalism is the corollary – it claims that there is one correct way of doing something which everyone must follow.

The Minister is making too much of the issue of bona fide publications. The advertisements we are discussing are inoffensive. They contain good commercial text and are to be welcomed. We are making too much of this and seeing problems which do not exist.

Debate adjourned.