I move amendment No. 1:
To delete paragraphs (1) and (2) and substitute:
(1) The authenticity of the recent television programme on illegal moneylending, that is to say, that part of the "7 Days" feature broadcast on television by Radio Telefís Éireann on the 11th November, 1969, which related to unlicensed moneylenders and their activities; and, in particular, the adequacy of the information on which the programme as journalism was based and whether or not the statements, comments and implications of the programme as to the number of unlicensed moneylenders operating in the city and county of Dublin and the scope of their operations, and the use of violence, or threats of violence, to secure repayments of moneys illegally lent, amount to a correct and fair representation of the facts.
I move this amendment primarily as a lawyer and as an independent Senator without any party political affiliations. I listened last night to the extent that anyone can listen to a six hour debate in the Dáil. I think I was there as faithfully as anybody else. There was a great deal of political comment in what was voiced there and I think insufficient attention was placed on what I would like the Seanad to focus on, the terms of reference of this Inquiry.
It is extremely important that we advert to the fact that as a Parliament we are setting the basis of jurisdiction of a judicial inquiry and that the judicial inquiry will confine itself within those terms and will not look beyond them. I speak principally as a lawyer and as such I welcome this motion to set up the inquiry. I welcome the fact that the Taoiseach has seen fit to try to clear up a great deal of public disquiet on the matter and I think that this can best be done by the method of a judicial inquiry with the power of obtaining sworn evidence. I welcome it but I want us to be very precise about the terms of reference which we give as the Parliament of this nation to this judicial inquiry so that it concentrates on the problem and so that it takes the matters into account that we wish it to take into account in order to produce findings that would best justify setting up such an inquiry. The reason I want to concentrate on the terms of reference is because from my admittedly fairly limited and yet in an academic way fairly extensive experience of judicial inquiries the method by which they approach their job is to examine with legalistic care the terms of reference.
If I might refer to the official motion the terms of reference are set down at points 1, 2, 3 and 4. Points 1 and 2 are terms of reference which refer to substantive matters. The first of those refers to the planning, preparation, arrangement, production and presentation of this "7 Days" programme. The second refers to
The authenticity of the programme and, in particular, the adequacy of the information on which the programme was based, and whether or not the statements, comments and implications of the programme as to the number of unlicensed moneylenders operating in the city and county of Dublin and the scope of their operations, and the use of violence, or threats of violence, to secure repayments of moneys illegally lent, amounted to a correct and fair representation of the facts.
These are two different subject matters and they are listed in order 1 and 2. It is my experience of judicial tribunals, and I think it is the way in which they would approach this, that they will examine the first term of reference put to them and they will look to the subject matter of the first point. I should like the House to look with me at this first point because it is with the first point here that I take grave issue.
My amendment makes a very necessary modification. It takes out what I think is the essential danger of the terms of reference under section 1, the terms of reference which refer to the planning, preparation, arrangement, production and presentation of the recent television programme, the "7 Days" programme, on the particular date in November. My contention is that it would be a dangerous precedent for this Parliament to set as terms of reference to a judicial inquiry, an isolated television programme, which forms part of a series of a current affairs type programme on social issues, on particular news issues in this country. Not only would it be a dangerous precedent but I submit very forcefully that the proper person to take responsibility for what is in section 1, for the planning, preparation, arrangement, production and presentation of this isolated television programme, is the independent television authority.
This authority are responsible for the internal procedural mechanisms of a television programme. They have jurisdiction under the Broadcasting Act. There is a chain of responsibility to the Director General, from the executive arm of the independent authority down to the heads of the various divisions. In the case of the "7 Days" programme, it would be the head of the news division. He could have instituted an inquiry or the Director General could have sent a memo to do so. This is a matter which is their responsibility, which is within their terms of reference. If we allow this motion to go forward unamended we shall be asking a judicial inquiry, a sworn inquiry, to look into a single television programme in isolation and to take sworn evidence on it and to judge it.
The Minister this evening made reference to the standard to be applied. I understand there is an amendment and that I am entitled to speak on this amendment in proposing my own amendment. Again it goes only to the second part only of this official statement—you will note in paragraph 2 and adds to it the words "and whether or not the statements, comments and implications," reflected reasonable journalistic care on the part of those responsible for the programme.
In paragraph 1, which I think is the dangerous one, we are giving the judicial tribunal the duty of inquiring into the planning, preparation, arrangement, production and presentation, the procedural elements, of a single television programme in isolation. We are also not setting that it be a journalistic standard of care but that it be presumably, possibly require the judicial standard of care relating to the burden of proof, in other words no programme ought to be produced unless there was proof of its truth beyond reasonable doubt or whatever the judicial standard might be. This is extremely important.
As I said I listened to the debate in the Dáil yesterday. I think there were some references to this in some of the speeches but not to the specific wording and to how terribly important this wording is because the judges who will sit on this inquiry live by words. It is their function as judges to examine with extreme care the various points of reference. They will confine themselves in a rather, narrow, legalistic way because that is how the balance of judicial independence is maintained in this country.
Secondly, as I said, the danger is then that the tribunal will look at the two paragraphs one after the other. In the amendment that I have put forward, if looked at in conjunction with the formal motion, it will be seen that what I have done in fact is only to delete the first two lines of the first paragraph, to begin with the first words of the second paragraph, in other words, it would require the tribunal from the very beginning to inquire into the authenticity of the particular programme and in particular the adequacy of the information on which the programme was based in the light of whether there is a social evil of moneylending in this country.
The reason I do this is because if that is the term of reference we should give this judicial committee they will look at the authenticity of the programme, and I think it is fair they should, because that has been part of the conflict, but they will do so in the light of and in the context of the existence or non-existence of the social evil of moneylending. The inquiry will proceed on two grounds, on the ground, first of all, whether a fair standard of journalism was maintained by this team in their probe into what is described as a possible social evil in Dublin. That will be the standard of care required of them.
Secondly, the judicial inquiry can from the beginning take into account what I think is one of the innate factors in this, that the programme must be judged in the context straight away of whether or not there was adequate information for it or whether it was a fabrication, a fiction and a valueless programme. Under the existing terms of reference I submit this may not happen. What will happen is that the narrow procedural terms in section 1 which are properly the business of the independent authority, for which they ought to be accountable, will be inquired into by a sworn inquiry and then they will inquire into the substantive issue of whether there was adequate information about illegal moneylending in the country.
This is the position which gives me grave concern as a lawyer for two reasons. The first reason is because we are setting a precedent for possible future inquiries of this nature into isolated television programmes and anybody who has read the account of the debate in the Dáil yesterday will know, and I reiterate here, that there is a possibility under the Broadcasting Act for the Minister for Posts and Telegraphs to make known in writing his disapproval of a programme and there are adequate checks and adequate controls within that Act. If we set this dangerous precedent of allowing a television programme to be examined in its procedural aspects I do not think any journalistic programme compiled with a shortage of time, with the type of materials and the type of projection they wish to put forward, can stand up to a cold, judicial inquiry at a judicial standard. I do not think that is possible. That is not the standard which ought to be required. That is one of the reasons why as a lawyer I cannot accept the terms of reference of this motion, although I accept the purpose behind the motion.
The second reason is that even if it is unlikely that a problem like this would arise again, that there would be another conflict of this nature and the necessity for a judicial inquiry, I hope this will be rare, a far greater evil is contained in giving the terms of reference we seem prepared to give by this motion, unless this amendment is accepted, because of the shadow this will cast over any independent investigation by a team in the future in this country. I do not even mean just the "7 Days" programme in question but that this type of programme will be done under the shadow of the threat of the possibility that we, the Parliament of the country, will set up a judicial inquiry into the procedural aspects of this particular isolated programme for which in fact the true blame or the true responsibility lies with the independent television authority for that particular item.
I do not want to use emotive terms like witch hunting, but we are using too broad terms here and I can see a great danger for the future of television in this country. As a young person going to continue to live here, I see it as a possible danger to freedom of expression in this country. I have a number of contemporaries from college days who have taken jobs—I think a number of graduates did go into television—in Radio/Telefís Éireann, and I cannot see them continuing to work there under the threat of this type of background censorship, this shadow of a threat of a judicial inquiry into the actual mechanisms of an individual programme. It is this point that is very important. It is not a political point, it is a legal point on the terms of reference that we are prepared to give to this inquiry.
As regards the wording of the amendment I have submitted, in the light of the fact that I understand that Senator Ó Maoláin is going to move the amendment that was accepted last night, I would be prepared to delete the words "as journalism" in the sixth line of the amendment. In fact these would not be necessary if that amendment were carried.
I still say—to sum up again as I do not want to go on too long—that the point I am making is that we are setting legal terms of reference for a judicial inquiry and that the substantial terms of reference (1) and (2) will be taken in that order, and that the first term of reference is one that I would not lay down for a judicial inquiry in this country, because if we do we are then negating one of the basic principles of freedom of expression and by-passing the independent television authority set up to deal with domestic matters such as the way in which a particular programme was organised, produced, planned, et cetera.
Therefore, I think that the amendment which I have put forward will allow the judicial inquiry to focus on what I think are the proper terms of reference without interfering in any way with the subject of this motion to set up an inquiry. The inquiry will look into basic fundamentals. It will look into the authenticity of the recent television programme. Authenticity is a very wide word. The judges will look at this in sufficient depth. They will have the right to films, tapes, transcripts, et cetera, and to take sworn evidence. Secondly, they will look in particular at the adequacy of the information on which this programme was based. In other words, they will take into account straight away, as part of the terms of reference, the vital element which cannot be ruled out of this inquiry as to whether there was a basis for it, whether there was a social evil of illegal moneylending on a fairly wide scale in the city and county of Dublin. Therefore I beg leave to propose this amendment.