Broadcasting Authority (Amendment) Bill, 1975: Second Stage (Resumed).

Wednesday, 16 April 1975

Seanad Eireann Debate
Vol. 80 No. 3

First Page Previous Page Page of 9 Next Page Last Page

Question again proposed: “That the Bill be now read a Second Time.”

Mr. Yeats: Information on Michael B Yeats  Zoom on Michael B Yeats  When we adjourned I was dealing briefly with the legal problems involved in the rebroadcast by RTE of one of the British television channels. The problems seem to me to be pretty well insoluble. It is difficult to see how in respect of any individual broadcasts there would not be more than 100 people in a position to sue either RTE or the BBC for fees or payments of various kinds.

On the question of the viability of RTE in the event of this kind of competition being forced upon them, [313] there are two issues. The first is naturally of immediate interest to the trade unions concerned, the problem of large scale unemployment of highly skilled workers in the almost certain event of RTE having to cut back on their activities in competition with the enormously richer channels across the water. The Minister has said that in this event the Government would come to the aid of RTE, or rather that he would ask the taxpayer to make up whatever loss RTE suffered. In that event there would be less unemployment, though it is difficult to see how any additional money provided in that way could provide work for people whose services were no longer required. But the long-term prospect raised is one which is more serious than what simple temporary or permanent unemployment would be caused.

One has the picture first of all of more than half of our television services coming from a foreign country and that part of them which originates in Ireland gradually running down, becoming less and less viable in itself. You would have this rich, prosperous television organisation in Britain coming in on our wavelengths and at the same time, correspondingly, the Irish part of television output gradually running down and becoming of less and less importance. And as it runs down the standard of the programmes would decline still further. There is the prospect that fewer and fewer of our own people would be drawn to watch our own television service.

Apart from this provision, in section 6 the power given to the Minister to force—the only word one can use—the RTE Authority to rebroadcast simultaneously a channel from Britain, we have section 13 which, while of less practical importance, in principle is equally objectionable. It is an important reflection of the Minister's thinking. The wording of this section, which is obnoxious, undesirable and dangerous, is of interest in showing to some extent the way in which the Minister's mind has been running; and it provides us with some kind of guidance as to the [314] reason the section is framed in this way.

First of all, a point to consider is: where did the Minister get the wording of this section? The answer is that in its essentials it comes from the report, at page 20, of the Broadcasting Review Committee, 1974. All of the items in section 13 were recommended in that report, in particular the need to consider the cultural attitudes and requirements of the whole of Ireland. This was mentioned by the committee, who referred to the relationship between Ireland and the other EEC countries. The difference is that the Minister has turned the whole proposal of that body upside down. It would be best if I read into the record the proposal which was made by the Broadcasting Review Committee as to the type of policies which ought to be carried out by the RTE Authority:

Broadcasting should be concerned with safeguarding, enriching and strengthening the cultural, social and economic fabric of the whole of Ireland.

The broadcasting system should provide a service which is essentially Irish in content and character and which in particular encourages and fosters the Irish language.

This service should:—

(i) be a balanced service of information enlightenment and entertainment for people of different ages, interests and tastes covering the whole range of programming in fair proportion;

(ii) be in Irish and English with appropriate provision for other languages;

(iii) actively contribute to the flow and exchange of information, entertainment and culture within Ireland, and between Ireland and other countries, especially her partners in the European Economic Community; and

(iv) provide for a continuing expression of Irish identity.

Since the Minister has rewritten these requirements the whole content and principles behind these change utterly. [315] There is nothing in the Minister's text about safeguarding nationality or strengthening the cultural, social and economic fabric of the whole of Ireland. There is nothing in this about the service being essentially Irish in content and there is nothing which would suggest that we ought to encourage and foster the Irish language. Far down the list there is a rather weak suggestion that we should have special regard in particular for the Irish language simply as one of the elements which distinguish the culture of the people of the whole island of Ireland, nothing about encouraging or about fostering it. Where the review body had suggested that the service should actively contribute to the flow and exchange of information, entertainment and culture within Ireland, and between Ireland and other countries, especially our partners in the European Economic Community, this emerges in the text as “promote understanding of the values and traditions of other countries, particularly the EEC” but there is no question apparently of the exchange of information, entertainment and culture. There is nothing to suggest that Ireland is a nation or one with an ancient national tradition. In paragraph (c) of this section we even have a statement:

have regard to the desirability of promoting understanding of the values and traditions of countries other than the State....

Why the State? Why not “Ireland” or “the nation” or some phrase like that? We have the neutral political word “the State”.

Curiously enough, while, as I say, the Minister's text on section 13 of this Bill has absolutely no reference to the concept of Ireland a nation or fostering Irish traditions, culture or anything like that, the Minister's memorandum, whoever drafted it, goes quite a bit further. We find in paragraph 14 of the memorandum which explains this Bill the statement:

Section 13 widens and clarifies the general duty of the Authority in regard to their obligation to provide a national broadcasting service.

[316] I am sure that is what whoever wrote this hoped would be done, but the Minister's text at no stage suggests that we are operating a national broadcasting service.

Therefore we have the situation that on the one hand a large part of our television repertoire, if that is the word, is to come from a foreign country and, on the other hand, even where we do produce our own programmes there is no obligation of any kind on the RTE Authority to consider in any way the fact that they are an Irish television service, that the Irish language and culture generally ought to be fostered. There is apparently no concept of nation, of nationality, to be allowed. In this the Minister seems to follow what one can only describe as a latter-day Redmondite policy, where it seems to forget history and tradition, at least so far as this Bill is concerned.

One thinks of the extraordinary statement which he heard last week from a Senator opposite when he said we should forget about James Connolly who, after all, was dead for more than 50 years and it is time we forgot such people. The problem is that under the present Government and under the present Minister with regard to this Bill we apparently are expected to forget our national past. We no longer celebrate the Easter Rising at Easter.

It would seem that the views of Northern Unionists are, if not more important than, at least as important as our own. I have the greatest respect for the views of Northern Unionists. I have been on very close terms with some of them at least in former days. I never agreed with them on anything, but I have the highest respect for them as individuals. We can have the highest respect for our Northern brethren who disagree with us politically without at the same time lying down on this sort of doormat before them.

It seems now that anyone who utters any kind of national sentiments or who reveres, as very many of us still do, the people who created the Irish State is accused in some way [317] of being an apostle of violence. I can assure the Minister that I am not an apostle of violence; I abhor the type of violence taking place in our country today. I suggest to the Minister in all sincerity that possibly no individual in the country does more to build up the so-called, modern IRA than he himself does. I know that is not his intention but he and people who think like him constantly think of the so-called Provisional IRA as descended from the IRA of the early twenties, 1918, 1919 and so on.

This is false propaganda accepted by too many people and put across by the so-called IRA of today. They are not in any way descended from those who created our modern State. I would remind the Minister as a historical fact that we would not have obtained a separate Government in Dublin at the time we did had it not been for what are described as the men of violence. But there is—and I am perfectly certain the Minister accepts this as much as anybody else; in fact, he has enunciated this himself on many occasions—a basic, clear distinction between those who fought for Irish freedom before we had an independent Government and those who defy the only army of the Republic that exists at present. I appreciate that the Minister understands this clear distinction but I put it to him that by constantly associating, as he does, those who have respect for Irish traditions, particularly the Republican traditions, particularly for the Republican traditions which in the course of our War of Independence brought about the creation of an Irish State, in suggesting that such people are in some way aiding and abetting, creating or encouraging the type of mindless violence that we see in Ireland today, he is doing no one a service. He is certainly not doing our party any harm, but I think he is building up the present so-called IRA in a most dangerous way.

I urge him to abandon this and to abandon the type of approach which we can see in this Bill where, whether he means it or not, the whole implication [318] in the wording of the Bill is that we are to forget about our past, about our traditions, about our separate culture and our Irishness, which is the only thing that distinguishes us from anybody else. We are to accept the whole paraphernalia of culture that comes from abroad. That comes in any event and we can do nothing about it, but we do not want to encourage it to the extent of giving over a large part of our television service to this kind of influence from abroad.

To show what I mean, the Minister recently wrote an article which I shall not go into in any detail—it is neither relevant nor necessary—which I think was called “Shades of Republicanism” about the Fianna Fáil Party. I disagree with almost everything in it but there was one paragraph which, when I had read it, caused me to burst out laughing. It seemed to me the funniest thing I have read since the late Myles na gCopaleen died. This was the picture it presented of a number of Fianna Fáil Deputies in some room in Leinster House on a certain occasion, singing that well-known ballad “Down by the Glenside”. The Minister produced this as an awful, ghastly example showing that, whatever their protestations, at heart these Fianna Fáil gentlemen were really wild and woolly men of violence. This, I found extraordinarily funny. That ballad is my favourite of all ballads; it seems to me a moving ballad with a beautiful tune and the thought that one cannot sing it without being accused of being some kind of fellow traveller with the Provos struck me as ludicrous.

The problem is that we are not now dealing with an article of a highly propagandist nature written by an individual in a newspaper but that this type of outlook which presented itself in that article comes out now in section 13 of the Bill—the concept that Irish nationality, the old ballads, the Republican tradition, which many will, I think, insist on revering, must be abandoned because the Minister feels that their perpetuation is in some way perpetuating the IRA. I [319] suggest it is he more than anybody else who is helping to perpetuate the IRA.

The Minister expressed some surprise, I think, in the course of his article at how, despite all the things he complained about in Fianna Fáil, Fianna Fáil in office were often the most effective people in dealing with the IRA. I think he was right because Fianna Fáil have always been able to take a coherent line in regard to the IRA—that there is only one Republican Army and that there is every possible distinction to be made between those who fought for Irish freedom at the time when we had no Government and those who purport to fight for Irish freedom and, in particular, who make war on their fellow countrymen in Northern Ireland. There is every distinction between the two and that is why Fianna Fáil in office were often, as the Minister admits, the most effective people in dealing with this problem.

These are the basic reasons, I think, which have impelled the Minister to bring in what in other circumstances one would look upon as extraordinary provisions in this Bill. If somebody said to me two or three years ago that the day would come when a member of an Irish Government would introduce a Bill solemnly proposing to hand over our television service in this way to another country and emasculate the Irish element to such an extent that any real Irish approach, is rendered irrelevant, I would have said it was ridiculous, that it could not happen. It has happened. I urge the Minister —he said he would be pliable and would accept reasonable amendments —to think again particularly in regard to sections 6 and 13 of this Bill and agree to amendments which we would certainly put down to deal with the points I have raised.

I can deal with the other matters in the Bill more briefly because we will be dealing with them again on the Committee Stage. In section 2 there is the matter of the removal of the authority. I agree in principle that this is an improvement—that [320] they can only be removed by resolution passed by both Houses of the Oireachtas. I am dubious about how much practical benefit it is to them as long as we have the situation under sections 6 and 16 they are subject to the Minister more than ever and more than ever subject to his direction.

A number of people have spoken on section 16 and I will not go into detail on it. Several people asked “What is disorder?” and what is meant by “inciting or promoting to violence”? There are humanists who say that “Kojak” or “Tom and Jerry” could incite to violence. I do not feel that one need worry unduly about these programmes. Once we put in the words “incite to crime”, without saying it for so-called political crimes or crimes against the State, one wonders precisely what is meant. The problems presented to the Minister by those who work in RTE suggest that, in spite of all the criticisms made, there was something to be said for the vague wording of section 31 of the original and Principal Act. Once we start to define things in legal terms we get into trouble.

I was glad Senator Martin raised the question of the fishermen who favoured the blockading of ports. That could easily be held to incite to crime or disorder. I feel that is not what the Minister had in mind. Under section 16 we should be considering crimes directed against the State. I accept that the blockading of ports is calculated to lead to disorder, but it is not directed against the State. Vague as the original section 31 was, it was clearly intended to deal with illegal armies by people who did not recognise the State and whose energies were directed against the State. I would be sorry to see the new section 16 used for what might be described as civil crime or civil disorder.

We will now deal with the impartiality of the authority. While detailed reasons are laid down for impartiality, forbidding the promotion of or incitement to crime and so forth, none of this applies to the section of the service which is to come from abroad. In so far as it does apply, I agree with much of [321] what has been said about the requirements for impartiality. Much of it was good. But I would be worried, as others have been, about the new provision that impartiality need not necessarily be in one specific programme but may operate over a number of programmes, provided there is not too long a gap between them. This could lead to very grave problems, especially in the dimension mentioned by Senator O'Higgins. In my view this could usefully be amended on Committee Stage.

I should like to hear the Minister's views on section 3. The Minister said it is impossible to require from the BBC impartiality and an absence of incitement to disorder. As the programmes are to be broadcast simultaneously, nobody except the British can control them. We have no control over them. Yet under section 3 the prohibitions from unreasonably intruding on the privacy of the individual applies to the BBC. If one can require them not to intrude on an individual's privacy, one can require them to be impartial, not to incite to crime and disorder and so on. I cannot understand why section 3 has been set out in this way. The Minister seems to be having it both ways. On the one hand the Minister says it is impossible to control the BBC and, on the other he is attempting to control them.

I agree that the complaints commission will be very cumbersome. What would happen if RTE rejected the findings of the commission? This Bill does not cover British broadcasting, except for safeguarding the privacy of the individual, neither does it cover this famous section 13. There is not much in that section which one would want to defend. Nonetheless, if anyone felt the cultural provisions were not being observed by the RTE Authority, there is no way in which these matters could be raised with the complaints commission. Experience elsewhere, especially in Sweden, suggests that this commission can lead to ill-effects. The danger is that once we have a formal commission it becomes a court and a chain of precedents begin to build up. The programme producers then find [322] themselves constantly referring to the law books built up by these commissions and asking if such and such is allowed. In other words, a legal situation arises with precedents being established by the courts. From the point of view of the freedom of broadcasters, I suggest there is a serious danger here.

I agree with the provision for local programmes. It could be said that Deputy Colley, when Minister for Finance, originated the concept of local broadcasting with Radio na Gaeltachta. I suggest that the licences issued by the Minister should be published, perhaps in Iris Oifigiúil. In his opening speech the Minister said that in licensing these local programmes one of the considerations would be the actual programme to be shown. He should have another look at this section, because it is not adequately stated that in issuing licences he can lay down conditions about the programmes. That may be his intention but I am not sure if he has given himself adequate powers to do so.

There is a variety of miscellaneous matters which are not very important that I will leave over until the Committee Stage. While I hope the Minister will improve this Bill on Committee Stage, as it stands we have no alternative but to vote against it because it seems to be extremely dangerous to the cultural future of Ireland. If it comes into force as it stands it will have irretrievable ill-effects on the future of Ireland as an independent cultural entity.

Mr. Halligan: Information on Brendan Halligan  Zoom on Brendan Halligan  It would be improper not to thank the Minister for initiating this profoundly important legislation in the Seanad. On a previous appearance in this House he undertook to introduce his Broadcasting (Amendment) Bill in the Seanad and he honoured that promise here on the 19th March when he gave his Second Reading speech on that very Bill.

We are grateful the promise has been kept because the debate comes at a time when there is justified public concern with the efficacy and the efficiency of the Seanad and, indeed, [323] with parliamentary procedures in general. In a sense the Seanad is on trial during the passage of this Bill and its relevance to Irish society will be judged by the manner in which it handles the subject matter before it. I have every confidence that the Seanad will continue to acquit itself well in processing this legislation and will prove itself to be not just an institution where there is a boring repetition of Dáil debates, but a forum where there can be analysis, criticism and proposals marked as much by freshness of approach as by partisan commitment to a party position.

This debate is a challenge to the Members of this House and if we fail we cannot blame the occasion, the subject-matter, the Government, the media or any other handy scapegoat. We can only blame ourselves and submit to whatever parliamentary reform an impatient public will demand of the Government.

I do not believe we have or shall fail and I therefore deeply regret that agreement had not been reached prior to the opening of this debate on the proposal to broadcast Seanad proceedings, because not only would the subject have been a most appropriate introduction for live broadcasting but the style and content of the debate would have greatly enhanced the reputation of this House and of Parliament in general. We have foolishly lost that opportunity through our own tardiness and it is we who will prove to be the biggest losers in the long run. I hope that one of the beneficial by-products of this debate will be to confirm the belief that if we, as legislators, are sincere in our professed concern for the future of broadcasting, then it should be exemplified in a tangible and concrete manner by opening up our deliberations to the broadcasting media.

However, having welcomed this Bill for the opportunity it gives to the Seanad to prove itself worthy of handling legislation of this sort before it goes into the Dáil, I wish to welcome it more particularly for permitting us to deliberate on what I believe are some of the central elements [324] in our democratic system and for forcing us to reflect on those issues in an atmosphere which is free of current controversy. This Bill and, indeed the Minister's speech on it, compel us to examine our concepts of liberty and the right to freedom of expression, and to analyse more clearly the tension which exists between private freedom and the exigencies of the common good, to reflect upon those things which make us what we are as a distinct people so that we can truly look inwards at ourselves and finally to evaluate the role, the influence and the power of television and radio in our society.

These are obviously very weighty concepts, and we should be grateful that a decade and a half after the enactment of the Principal Act we have a Minister who has the courage to reopen the debate on these fundamental concepts and the courage, perhaps one could say the foolhardiness, to propose that they might be translated into legislative form, in the light of 15 years' experience, with greater precision and definition.

As I see it, the Bill contains 11 central propositions, and I intend to deal with these in the order in which they appear in the Bill. They are: the removal of the authority, the question of objectivity and impartiality in news, the prohibition on the incitement to crime and disorder, the protection of individual privacy, the broadcasting complaints commission, open broadcasting, the functions of RTE, its financing, its general duties, ministerial orders, and the question of cable television.

In looking at section 2 one must go back to the fundamentals of the Principal Act which pivots around two subsections namely, 3 (1) and 16 (1).

Section 3 (1) reads:

There shall, by virtue of this section, be established on the establishment day an authority to be known as Radio Éireann....

Section 16 (1) reads:

The Authority shall establish and maintain a national television and sound broadcasting service and [325] shall have all such powers as are necessary for or incidental to that purpose.

Therefore, in the Principal Act the State has retained in public control the right to engage in television and radio broadcasting and has not permitted the establishment of commercial television or radio stations, and the amending Bill, rightly, does not propose to depart from this principle. There is inherent in this decision—and I think this to be very important—a general philosophy which permeates the other provisions of the Principal Act and also of the amending Bill and which must be kept clearly in mind when reading the provisions of both. It is a philosophy which contends that private ownership and control is appropriate to newspapers and other forms of communication but not to broadcasting and that the ethos of one is not to be the ethos of the other. The purpose of broadcasting is to be solely the provision of a public service whereas in newspaper publication there are parallel commercial considerations which may in certain instances prove decisive.

Section 3 (1) of the Principal Act therefore frees broadcasting from private control and from the constraints which are a necessary concomitant of private ownership and commercial criteria. The Principal Act imposes a different set of constraint when in 16 (1) it defines the basic function of the new authority and therefore creates an entirely different environment in which radio and television are to be conducted. The effects of that decision are elaborated in sections 17, 18 and 31 of the Principal Act and refined and extended by sections 3, 6, 13, 16 and 17 of this Bill.

If RTE is to be a public corporation providing a public service, then it cannot assume to itself as of right or through the default of others, either the Legislature or the Executive, the task of defining the public interest which it was established to serve, because the decision to opt for public control of broadcasting was anterior to its establishment and was based on a [326] pre-existing concept of what constituted the public interest. Legislation must therefore indicate in broad terms the nature if the public interest as conceived by both the Executive and the Legislature, and the intent of that legislation in the spirit and in the letter must be observed by the authority established thereunder.

For these reasons, I believe there is nothing either draconian or oppressive in the reserved powers which the Executive retains to itself for use in specified circumstances. Indeed, it would be an outrageous abandonment of its responsibilities if the Executive were to establish a public corporation, provide it with public finance and then permit it to operate without social supervision or accountability.

It is ironic that many who criticise the operational freedoms given to other public corporations as being too liberal criticise the provisions of this Bill as being too restrictive. It is ironic but not surprising, because uniquely different standards are applied to RTE than are applied to other State corporations. They deal in such mundane things as sugar, electricity, transport or fertilisers, whereas RTE deal in information, education, ideas and entertainment. Society rightly regards these as being central to its own vitality, its own continuity, its own sense of development, and I believe they are related to these things in a unique way. Therefore it requires a system of control for RTE which is significantly different from that which applies to the other State corporations.

There is a consensus, and this has been evident so far in the debate, which favours non-commercial broadcasting and the vesting of managerial responsibility in a body outside the civil service, a body created specifically to discharge a range of duties defined by the Oireachtas. But while the consensus extends to a broad understanding of those duties it also includes a determination to ensure that the Broadcasting Authority operate within the very broad latitude given to them, in other words, the Legislature does not simply off-load responsibility to the RTE Authority and then step back and take no further interest in their operations until such time as the [327] members of the authority must be appointed at defined intervals. The Legislature empowers the Executive in particular to retain final control for certain specified purposes of national importance.

The consensus also is that RTE should have an independence which is seen to be real and objective, especially in relation to political parties and government, but which also is qualified by limits which are contained within the consensus. When the authority transgress those limits their mandate, to act in the public interest should be terminated. It is this power which is reserved in section 2 of the Bill and which replaces the very sparsely-worded section 6 of the Principal Act.

While this new section has been welcomed to some extent, it has been claimed by others that its new provisions are no more than window-dressing, that they are a cosmetic presentation of what is an arbitrary power. This is a mistaken viewpoint. The section contains two new requirements which make it qualitatively different from section 6 of the 1960 Act. First, the removal of a member from the RTE Authority must be now for stated reasons. Secondly, both Houses of the Oireachtas must pass resolutions calling for the member's removal. Both of these requirements virtually ensure that in day-to-day affairs, the RTE Authority can operate in full independence, secure from political pressure and secure also from arbitrary dismissal, because no government of the type to which we have been accustomed throughout the period of the existence of the State will dismiss any member of the authority for trivial, personal, partisan or party political reasons, if they have to state publicly the reasons for the dismissal and, then, submit them to Parliament for scrutiny. It would be only for reasons of high politics related to transgressions of the national consensus that a publicly conducted dismissal could occur. The present Act provides the opportunity of a loophole for an unscrupulous Government if they require one in so far as members of the Authority can [328] be removed without public or parliamentary examination.

In a book published in 1962 by the Fabian Society and entitled The Lessons of Public Enterprise, Mr. Roy Jenkins wrote a foreword from which I quote:

In practice the conception of authority openly conducted and publicly accountable has been stood on its head. Because the relationship between Minister and board chairman is loosely defined, it is informal in character. Because it is informal it is often secret. Because it is secret it is unaccountable. The facts emerge, if ever, only when the immediate crisis is over and public judgement, often unjustly hostile to the industry concerned, have been informed.

He referred in that foreword to what he called “backstairs pressure by Ministers on board chairman.” That danger is as prevalent today as when it was written of in 1962. This section consciously removes ministerial temptation to engage in backstairs pressuring for party advantage or for petty reasons. It forces the Minister and/or the Cabinet to conduct their relationship with RTE in an open, explicit conversation. The Minister is to be complimented for his Pauline fortitude in resisting temptation and for placing his faith in the good works of both RTE and the Government for the future. This new section not only strengthens and enhances the independence of the authority but enhances also the role of Parliament by engaging it in a very decisive way when determination must be reached as to whether there has been a failure by RTE to discharge their public trust.

It is unlikely that even so well-drilled a party as the Opposition would vote, if in Government again, to confirm a capricious dismissal of a member of the authority for reasons which were related transparently to circumstances other than those expressed by the Government as constituting grounds for dismissal.

The strength of this section rests in a faith in the inherent decency and integrity of the ordinary legislator [329] who, as those of us who are involved in party politics know, can impose real limits on Government, sometimes more effectively at the party meeting than in the Houses of the Oireachtas; but no Government has carte blanche from the back benchers in the exercise of power. Any Government would think twice before using that power with malice or deceit. A Government which did not think twice would not deserve the opportunity to do so, in any case. For these reasons the charge of window-dressing in relation to the two new provisions of this section is either born of a misunderstanding of the nature of the political process or of a partisan opposition which should not be counted.

This section forces us to think on the nature of the public corporation which was established by the Principal Act and which is continued by this piece of legislation. The power vested in the Government to remove a member of the authority is reserved precisely because there is no necessary equation between the interest of the broadcasting authority and the public interest. Most, if not all of the time, that is the situation in practice but there could be deviations from what the Government conceive to be the public interest and what the authority conceive it to be. If such deviations occur the Government must have the authority to resolve these differences conclusively.

I am not pretending that this is an ideal institutional model. We must not be fooled by a liberal rhetoric which alleges that an ideal exists somewhere if only it could be replicated by the Government and by this Legislature, providing it had the wisdom and the courage to do so. The public interest is not necessarily protected by independent commercial broadcasting institutions or by State-controlled institutions or by public corporations such as RTE or by any permutation of all these. I am not claiming that there is any necessary coincidence between the State's conception of the public interest and the public interest in the broadest sense. But I am alleging that a public corporation, freed and insulated from the political pressures of a transient administration, represent the best [330] balance, in the context of existing democratic structures in this State, between the public interest as seen by the Government, by the broadcasting authority and by the various elements which constitute our society. This is not a static balance but it is a dynamic one capable of adaptation to new social forces. It is a flexible arrangement which allows for genuine independence by the broadcasting authority in a changing social context.

Section 3 (1) of the Bill amends and extends the mandate of the authority to be both impartial and objective in the presentation of news and current affairs. The subsection has generally been welcomed for its more explicit presentation of these journalistic criteria. In general it must be stated, in all fairness, that the highest standards of objectivity and impartiality have been maintained by RTE television and radio news presentations and current affairs programmes since the establishment of the original authority. RTE has developed its own distinctive and discernable ethos with high internally imposed criteria for handling news and current affairs.

I believe this to be greatly to the credit of the authority and the journalists, given the fact that in dealing with television as a medium and the explosion in news features and current affairs programmes on radio, they were dealing with a virtually new situation with few domestic precedents to guide them. The style, tone and approach were created de novo as it were and they are to be commended on a contribution of permanent worth to the philosophy and practice of broadcasting in this country.

A journalist working for RTE confronts two important differences from a colleague employed in a newspaper. Firstly, the newspaper is privately owned—and in this country this is literally true of the four national dailies—whereas RTE is a public corporation. Newspapers have traditionally been propagandistic, each having a fairly distinct position in the spectrum of public opinion. An Irish Press editorial flattering the [331] National Coalition Government or critical of the Fianna Fáil party is as rare as a day of sunshine in an Irish summer. RTE is instructed to fix itself firmly in the middle of the spectrum and not only to refrain from having a corporate viewpoint on current affairs but also to ensure that individual journalists do not give to news or current affairs programmes a slanted version of what is happening.

This difference of approach is deeper and more significant than generally realised or, indeed it seems to me, appreciated by the journalists themselves. It results in the news being presented by a reader who is not himself a journalist and who therefore has no personal involvement in what is written or selected for verbal and for visual presentation. Much of the news is therefore anonymous in its origin and there is sufficient of this type of material in the normal newscast to colour the rest of the material in the same impartial hue even though there is recourse to identifiable correspondents dealing with specialised topics.

There is another consequence flowing from this approach and it is the effect of editorial choice on the type of stories included in news bulletins and selected for treatment in feature programmes. Raymond Williams in his book entitled Television, published last year, refers to a study in communications carried out in 1966 in Britain which compared lead stories in newspapers. This comparison “showed marked variations of priorities in different kinds of paper. A further comparison with broadcast bulletins showed that broadcasting priorities were, on the whole, those of the minority press.” He says: “The world view indicated by the selection and relative priority of news items is very similar as between broadcast bulletins and the minority newspapers which are written by and for the relatively highly educated.” In other words, the neutralisation of an explicit corporate or personal viewpoint results in a certain type of partiality which is generally accepted as being impartial. I think it important for us to recognise [332] and confront this reality rather than to pretend that impartiality and objectivity are ontologically achievable. They are useful abstractions which can be given an acceptable version of reality along the lines indicated earlier.

Senator Horgan, in his striking and comprehensive contribution, remarked that every good journalist achieves objectivity by the seat of his pants. This is precisely the point. It is not possible in communications to be free of value judgements but it is possible to achieve the irreducible minimum. Objectivity is perhaps one of that category of phenomena which is best defined in the negative—you know what it is when it is not there. The effects of applying this standard to news bulletin preparation and presentation are to push the editorial emphasis towards the heavy end of the news spectrum. Williams concludes: “the results of this are complex. It can be said that the broadcast bulletins impose certain priorities and that amongst these are characteristic definitions of high politics, with a centralising emphasis on the acts and words of political leaders. Yet, though this is in general true, the national television news than all but a very few newspapers. Moreover, they provide it to a very wide public, in ways that would not happen if we had only a ‘minority’ and a ‘popular’ press.”

I believe this observation to be generally true of the Irish situation and I have dealt with the analysis at some length because I wished to establish that when we talk of impartiality and objectivity we are talking of a certain type of impartiality and objectivity which we find acceptable and which RTE journalists by and large find congenial.

But we are not talking of something which exists in the real world of journalism as it does in the world of philosophic speculation and this distinction is important, particularly for other subsections of section 3. Therefore I hope we can agree that this analytical approach leads us to conclude that although the journalist [333] in a newspaper operates within certain parameters and the journalist in RTE within others, the broadcaster's parameters are not necessarily more restrictive or limiting but are simply different because the technology of the medium is different and the social role of the medium is different from that of the newspapers. The second difference for the journalist in broadcasting as compared with the journalist in the more traditional medium of print lies in the mode of presentation. Not only is the medium completely different—words and images as contrasted with print—but the sequence of presentation is distinct from that of a newspaper.

The modern newspaper is a mosaic of news items simultaneously presented admittedly with explicit editorial choice both as regards to inclusion, position and treatment. On the other hand, a news broadcast is linear, each item fitting into a sequence of news items which has been predetermined by the news staff. This order is itself an even clearer expression of editorial choice. Indeed as Williams comments “The broadcast news bulletin tends to retain more apparent editorial control of priority and attention” than a newspaper. The linear nature of the news broadcast therefore puts great strain on the radio and television newsroom because the elements of choice are obvious immediately to listeners and viewers.

But the position is inescapable because the linear nature of broadcasts in inherent in the technology of the medium and if it is inescapable then the journalistic discipline must be quite distinct from that of newspapers and must be recognised as such both by the public and by the journalists. Otherwise problems can develop which are regarded as ethical but which happen in fact to be technical and this confusion can lead to unnecessary tension between the journalists conception of his job and the reality of his job.

The mode of presentation in television is also different from both radio and newspapers because of the combination effect between words and pictures. It is not true that the [334] actuality, and in some cases the immediacy, of news as seen through a camera is incapable of distortion. The very choice of the area in shot is distortion. The position of the camera is distortion. We know, as Williams says, that whether in a riot it is looking over the heads of the police or over the heads of the rioters is important to our perception of what is being reported. But, allowing for all that, there is always a core of objectivity in the camera that is unmatched by any other medium. When you see a person on screen you see the whole person, the physical appearance and the voice fusing into the totality of what we recognise as another living person communicating with us and very different from the effect of the disembodied voice on radio or the reported speech in cold print. There is the minimum of mediation in good television news reporting and for that reason it has a place in news technology which is sui generis.

If we might take one concrete example. Anyone who saw Guy O'Brien's news report of the Derry civil rights march of October, 1968, is not likely to forget it. The camera was with the marchers and what it shot, once the RUC attacked, was a much a matter of chance as of deliberate decision. But allowing for all that, it gave an insight into the Orange State so penetrating that it instantaneously altered one's attitude towards and one's understanding of the Orange State. I do not believe that there has ever been a more important single piece of news reporting on RTE than that filmed report from Derry. By analogy we know of the impact which TV reporting had on American attitudes towards their own involvement in the Vietnam War.

Tom Hardiman, the immediate past Director General of RTE, said in an Irish Times interview on 29th March: “Television is a medium more of impact than of influence.” The point I am making here is that impact can be influential and that influence can be enduring and profound as in the two examples I have quoted. Thus the way in which the impact as mediated is of itself profoundly important and hence [335] the necessity to stress in section 3 (1) (a) the requirement to strive after objectivity and impartiality. I hope by now I have established that in operational terms this provision is far more important than would be suggested by a casual perusal of the Bill and we would be foolish to skip the implications of this subsection. There are two other points I want to make in relation to this subsection. In 3 (1) (b) current affairs, broadcasts on matters of public controversy have to be fair to all the interests concerned and must, again, be objective and impartial. Now “fair to all interests concerned” can be interpreted as meaning not only a balanced presentation of the facts relating to each interest but also the presence on a programme of a representative of each interest involved in the controversy. If this is interpreted rigidly then it gives to the various interests involved the right of individual veto over any programme through the simple expedient of refusing to go on air.

The brodcasters response to this tactic has been to employ the “empty chair” device which puts the responsibility for any resulting imbalance on those who have failed to accept an invitation to appear. I believe it is a practice which should be defended as a legitimate interpretation of 3 (1) (b) and I should be glad to hear the Minister's comments when replying.

The other point is a comment on the new provision that balance need not be achieved within one single programme but within two or more broadcasts provided every interval is reasonable. I believe this to be a welcome legislative recognition for established journalistic practice and I do not believe we should strain this new code by debating too closely what is meant by an interval which is “reasonable”.

Clearly, some matters are so immediate through the nature of the controversy that one or two days would constitute a reasonable interval, particularly when handled through the format of studio discussions. Other issues could be debated on a weekly or even a monthly basis, say using film reports and still achieve balance. [336] I believe the broad principle should be simply that material should be broadcast at a time when it is still relevant to the determination of public attitudes—for example, there is no point in giving one side of a controversy when the issue is dead.

This legislative addendum is important and will, I believe, be of considerable value to serious broadcasters in the current affairs area. It will enable them not only to concentrate on different sides of a controversy in successive programmes rather than trying to push everybody into one programme and very often securing nothing other than a brawl, but will also enable them to mount long investigative series which have to be viewed as an intergrated whole rather than as a sequence of discreet programmes. If the subject matter of a series were very sensitive, but nonetheless an on-going controversy such as the contraceptive issue, then this new provision would be vital in defending individual programmes within the series on the grounds that, while individually they would of necessity be biassed, their overall achievement would be one of balance. We would be foolish, however, to deny that a problem will still exist. People tend to react to television on the spot, which was Tom Hardiman's point. This provision is a welcome aid to the broadcaster who says that an issue needs to be looked at calmly over a period rather than being disposed of in a single programme.

The Minister rightly joined together in his own speech the provisions of 3 (1A) and section 16, and I intend to follow that example. The prohibition on broadcasting anything likely to promote or incite crime or to lead to disorder has met with a mixed reception. There is widespread agreement on the necessity to prohibit broadcasts which could lead to crime but some criticism of the provision in respect of disorder.

The circular of 18th March addressed to Senators by the National Union of Journalists exemplifies this response in the following comment:

Accepting that no reasonable objection can be lodged against the [337] law prohibiting the broadcasting of matter likely to promote or incite crime, it is our view that the extension of the prohibition to matter, which in the Minister's opinion, would be (or may reasonably be regarded as being) likely “to lead to disorder” goes far too wide.

The Minister in his speech recognised three different types of reaction to his replacement of section 31 (i) of the Principal Act and by the combination of 3 (1A) and section 16 of this Bill. At column 771 of the Official Report on 12th March he described the reactions like this:

Those whose main objection to the old section 31 was its blanket character, and therefore its susceptibility to arbitrary abuse, will regard the present amending legislation as constituting at least a significant improvement. Those, however, who reject any power of Government censorship applied to the State broadcasting system—even reserve powers to be exercised in the interests of the security of the people—those who take that position will certainly regard the legislation which is designed to replace section 31 as constituting little or no improvement on that section. And there is plenty of room in between—for example the view that while the State should have some authority to intervene—that is to say to censor, let us not be afraid of the word, whether or not we are afraid of the thing—yet the State's powers should be more strictly limited than they are in the draft legislation.

It is to the last category that I would consign the NUJ and I think their analysis of the word “disorder” is worthy of serious consideration, although I do not agree with their conclusion. The prime difficulty in relation to “disorder” is, they say, its definition:

It could embrace many now almost conventional degrees of protest and political action including strikes, sit-ins, farmers' blockades, and even the housewives temporary blocking of a road to focus attention [338] on the need for pedestrian crossings. To report on any of these could be held to invite imitation. It may well be that the intention of those who framed the Bill is directed at much more serious matters but we feel these are adequately covered by the reference to “disorder” should be deleted from the Bill.

That I believe is an unfortunate non sequitur. I believe the disquiet expressed by the NUJ is legitimate, but I believe also that it can be dispelled by a more concentrated form of wording which I believe the Minister himself has already given us, not once but many times in his own speech. It is evident, I presume, from my earlier remarks, that I consider it an inescapable obligation on the State to reserve certain powers to itself in the control of broadcasting and I hold that these should extend not just to matters likely to promote or incite crime but also to matters which could endanger the security of the State and I do not believe this latter consideration can be covered by the prohibition of matters relating to crime as the NUJ suggests—and I say this while accepting their criticism of the word “disorder” in the Bill.

The Minister has given us the origins of this form of wording; it appears in British legislation where it has caused no trouble as of yet. It was actually suggested for inclusion in the Principal Act by a Senator in the original debate in 1959 but the Government of the day preferred to reserve to themselves the sweeping powers of section 31 (1):

The Minister may direct the Authority in writing to refrain from broadcasting any particular matter or matter of any particular class, and the Authority shall comply with the direction.

And the operative word of the Fianna Fáil Act is “any” which is used twice with a rather frightening double effect.

The Minister, at column 794 of the Official Report on 12th March described that power “—a power which is without limitation of any [339] kind whatever.” He then explained the objective of his substitute sections, saying:

I obviously wanted to get rid of this absolute power, so obviously capable of manifold abuse, but I wished the power substituted for it to remain wide in the area where its exercise is justificable. The area is that of security.

If the area is that of security—and I accept that it is and does not encompass those other areas mentioned by Senator Horgan and the NUJ— then I believe it should be expressly stated as such in the Bill. I have previously brought to the private attention of the Minister the wisdom of a best selling Australian novelist who was a friend of mine and an expert on ducks. She used say: “If it looks like a duck, walks like a duck and quacks like a duck, it is a duck —and say so.” This is a perfect example of the duck test. We are in fact talking about national security when referring to the word “disorder” in this subsection and not about strikes, sit-ins, blockades or housewives sitting on the roadway. We are talking about the IRA and other subversive organisations who do not accept the legitimacy of this State, who do not obey its laws and who are a danger to its continued existence and to the lives and livelihoods of its citizens. That is what we are talking about and that is how it should be put in the Bill. If that is done there will be only two types of reaction to the principle contained in the subsection—the reaction of those who believe that the property of the Irish people should be denied directly or indirectly to subversives and those who do not.

The Minister is himself the best advocate of the amendment I propose. All the references I am about to quote are taken from his Second Reading speech of 12th March. At column 765 of the Official Report he first explained the new provisions as follows:

Because the Government responsible to Parliament must retain the [340] final say in the particularly difficult and sensitive area of the security of the State, I propose to retain, while modifying, the power to issue directives.

—the sensitive area of the security of the State.

At column 784 he said:

A line which we might legitimately seek to draw—though it is very hard in practice—is that which would set apart, as belonging to the sphere of action amenable to law, all forms of play on the emotions, through words or images, in ways likely to arouse fear and hatred, to cause acute distress, or to endanger the lives of citizens and the security of the State responsible for those lives.

—endanger the security of the State.

At column 785 he said:

The Government of the State has a particular responsibility in relation to broadcasting, and specifically the responsibility to ensure that broadcasting is not used to endanger either the security of the State which licensed it, or the lives of the citizens who pay for it.

—endanger the security of the State.

At column 787 he referred to:

...the reserve powers retained by the Government and Parliament as relating to security—and security only.

—security only.

At column 794 he used the following words which I have previously quoted in respect of the area where power of control is justifiable:

The area is that of security.

And finally, at column 795 he concluded his reference:

...thus the Government shall retain an adequate reserve of power, for security reasons, as a principle which the Government is determined to safeguard and, therefore, any amendments seriously weakening that would be resisted.

I do not propose that the reserve power “for security reason” should [341] be weakened, but I do propose it should be more accurately specified. If this is conceded I am convinced the amendment will satisfy all those who genuinely disapprove the use of RTE for the propagation of material dangerous to the security of the State but who at the same time are unhappy about the possibilities of abuse in the present formulation of section 3 (1A). Of course this amendment will not satisfy those who object to any form of State censorship, or internally imposed RTE censorship for that matter. And it will not satisfy those who would reject the broadcasting of material which might encourage rape, contraception, promiscuity, homosexuality, prostitution or abortion but would nonetheless permit the broadcasting of material which might encourage knee-capping, car-bombing, political robberies and sectarian killings, historically privileged crime, as the Minister called it.

So I am not claiming that this amendment will silence all critics of this section, but I contend it will limit them in the main to those who have either an overt or covert regard for the perpetrators of political violence on this island and it will prevent such people from masquerading in the public debate as the champions of free speech when they are the conscious or unconscious champions of the gunman, bomber or assassin. I suggest these are very important considerations indeed and I trust the Minister and the Government will seriously evaluate them between now and the Committee Stage.

I very much welcome the provisions of section 16 which constitute, given the acceptance of the State's right to intervence, an enormous advance on the existing Act by requiring the Minister to lay before the Oireachtas any order directing the authority to refrain from broadcasting particular matter and by empowering either House of the Oireachtas to annul the order. At the moment the Minister could, under Fianna Fáil Act, direct the authority to refrain from broadcasting any matter without stating a reason, and [342] could dismiss the entire authority, again without stating a reason, and do both without reference to either House of the Oireachtas. Section 16 is thus a companion piece of section 2 by requiring the Minister to go before the Oireachtas and to open his directives to public scrutiny.

I believe this section meets the requirements set down by the Broadcasting Review Committee and the criteria laid down by Tom Hardiman in his interview of 29th March in The Irish Times, where he said:

In many democratic societies regulation is achieved by the provision of publicly owned media, operating in the public interest but the State should and must retain the possibilities of control; that is as it should be in a democratic society. Parliament on behalf of the people must say what the mandate of the publicly owned media shall be and set out the means by which the possibility of direct intervention by the state is to be achieved. Whenever a statutory intervention is made it is important that it be specific and say clearly what is precisely involved, and I think it important that such a strategy be itself open to public inspection.

Section 16 meets these criteria, that intervention be specific and that it should state what is involved and, finally, that it be open to public scrutiny. It is interesting to hear what he says in respect of the effect of the direction on RTE of October, 1971, under section 31. He said:

It is a fact that the requirements of this direction have on occasion taken precedence over normal journalistic criteria. But I am satisfied that in news reportage no important subject has been left uncovered and that the news has not stepped back from what has been happening.

Oliver Maloney, the new RTE Director General, in a radio interview last Sunday gave me the impression that he agreed explicitly with the last part of Tom Hardiman's observations. I advisedly say “impression” because [343] I do not have a transcript of the interview but I do recall him also saying that he felt journalists had made more of these restrictions than was warranted by the facts.

In considering these two related parts of the Bill we must also give consideration, not just to the impact of certain broadcasts on our democratic institutions but additionally to their impact within Northern Ireland as the Minister said at column 794 of the Official Report:

Where there exists among the majority a widespread impression that this State is in some kind of collusion with the IRA.

If there were to be no restrictions on RTE then presumably we could get the sort of interview on radio or television, such as Cathal Goulding gave to The Irish Times on the 8th March, which in the state broadcasting system would appear to confer quasi legitimacy on the IRA, while confirming the worst fears of the Northern majority that this collusion existed between this State and the IRA, an impression which the Minister stated is directly dangerous to life, both in Northern Ireland and here.

I should like to quote at some length from the interview in order to prove this point. Goulding, who is styled as the Chief of Staff of the Official IRA, was asked to explain the attack on John Taylor, the murder of Senator Barnhill and the Aldershot bombing. He replied—and just imagine what effect this would have, North and South, if it were done live on “7 Days” or the “Late Late Show”:

Well, John Taylor was Minister for Home Affairs at the time of the attack on him and was using repressive legislation and was contemplating even more repressive legislation. He was also vindictive and tough in his handling of what was his brief. I suppose you could say that, well, Brian Faulkner should have been the target since he was in charge but then, like everything else, the availability of the target matters too.

Barnhill's was a mistake, if you could call it that. He was supposed to [344] be away at the time and the Republican movement was burning houses owned by the wealthy and middle class Unionists then as retaliation for the wrecking of working class homes in the North by the British Army. Barnhill was part of the establishment.

Now Aldershot was a military target and the attack was in retaliation for the murders by the British Parachute Regiment on Bloody Sunday. It went very wrong. I felt crushed after it, that only working class women had been killed by the explosion and that was really all that happened. It was a catastrophe but, if you compare it with the Provos campaign, a calculated campaign against civilian targets, Aldershot was just one attack that went wrong.”

And his global exculpation of guilt: “We make mistakes. We will maybe make more mistakes, but you won't find us making the same mistake twice.” Mistakes?—an attempted assassination, a murder and a house burning and the slaughter of innocent cleaning women. “We will maybe make more of these mistakes.”

I think it irrefutable that these remarks, if made on RTE, would have an electric effect on the audience, North and South, and if made on television would have a catastrophic effect. The reminiscences of a guerilla leader may be good television provided the guerilla leader has retired or is operating in another country so that interest in either case is no more than curiosity.

Debate adjourned.


Last Updated: 14/09/2010 20:53:18 First Page Previous Page Page of 9 Next Page Last Page