User:Jnestorius/Section 31

Section 31 of the Broadcasting Act

1960

David Farrell:

There was also introduced in 1960 a clause, modelled closely on legislation governing the BBC and independent networks in Britain, which allowed the government to direct RTE ‘to refrain from broadcasting any particular matter or matters of any particular class’ - the infamous ‘Section 31 . Gradually over the years, there was to be a tightening of the Section 31 noose, reflecting the outbreak of violence and instability in Northern Ireland. This culminated, in 1976, in a blanket ban on the transmission of interviews with representatives of Sinn Fein, a registered and legally recognised political party. At the time of writing, this blanket ban looks like it is about to be declared unconstitutional by the courts.

Broadcasting Authority Act, 1960

31. Directions by Minister.

(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.

(2) The Minister may direct the Authority in writing to allocate broadcasting time for any announcements by or on behalf of any Minister of State in connection with the functions of that Minister of State, and the Authority shall comply with the direction.

1966

Dáil questions

41.
Gerald L'Estrange	asked the Minister for Posts and Telegraphs if he is satisfied that the Broadcasting Authority Act, 1960 contains sufficient safeguards for the independence of RTE.
Joseph Brennan	I am satisfied that the Broadcasting Authority Acts enable Radio Telefís Éireann to carry out effectively its functions of establishing and maintaining a national television and sound broadcasting service. It was, of course, never intended that it should be completely independent but the power of intervention by the Minister for Posts and Telegraphs or the Government is confined by the legislation to a small number of matters in which State interests must be safeguarded.
Gerald L'Estrange	Is the Minister aware of the disquiet in the country about the amount of ministerial interference with programmes and news on Radio Telefís Éireann, and also of the fact that the Taoiseach last week said he was prepared to stand over every act of every Minister in this regard or any other? Can the Minister guarantee to the Dáil and the country that Radio Telefís Éireann will be allowed to do its work without political interference?
Joseph Brennan	I do not accept any of the implications the Deputy raises in his supplementary question. My experience is that the amount of interference the Deputy refers to has been so exceptional as to make this question completely unnecessary.
Thomas J. Fitzpatrick (Cavan)	Am I to take it that the Minister [1396] and the Government claim the right to interfere with Radio Telefís Éireann in the way that news shall be presented and whether a particular item of news shall, in fact, be televised at all?
Martin John Corry	Is the Minister aware that a protest was sent by Deputy Fitzpatrick to Telefís Éireann to prevent them showing a photograph of him drinking whiskey in Verolme Dockyard?
Thomas J. Fitzpatrick (Cavan)	The Deputy's intervention, Sir, is in keeping with the irresponsibility of the Fianna Fáil Party.
Brendan Corish	Could the Minister give an answer to this simple question? Is the Minister for Posts and Telegraphs or any other Minister in the Government empowered to insist that a particular news item be deleted from a newscast?
Joseph Brennan	Yes; section 31 empowers the Minister for Posts and Telegraphs to have any particular presentation withdrawn.
Brendan Corish	I did not say a presentation; I said a news item.
Joseph Brennan	Surely anybody has a right to protest and many have done so, on both sides of this House? I hope we will never reach a time when a Minister cannot make a protest to a State-sponsored body like Radio Telefís Éireann.
Brendan Corish	Has the Minister the power to have a particular news item deleted?
Joseph Brennan	[1397] I have, Section 31 empowers me to have any broadcast withdrawn.
James Tully	You can, but——
James Matthew Dillon	Here is the fundamental question. Does the Minister for Posts and Telegraphs acknowledge to the House now that for any order or direction given by him or by the Taoiseach under section 31 to Radio Telefís Éireann, he or the Taoiseach must answer if questioned in this House? That is the question. Does the Minister acknowledge his obligation to answer in this House for any direction he gives under that section?
Joseph Brennan	Yes; any direction I give under section 31.
James Matthew Dillon	The Minister is answerable to this House?
Joseph Brennan	Yes, will be in writing.
James Matthew Dillon	And the Minister will answer to this House for it?
Joseph Brennan	Yes.
Thomas J. Fitzpatrick (Cavan)	Before we leave this question, lest anybody take Deputy Corry seriously, I want to put it on the records of this House that the allegation made by the Deputy concerning me is completely and utterly without foundation.
Martin John Corry	I accuse him of it and I stand over it. He did drink whiskey down there.
Jack Lynch	If he did not, he would go down in my estimation.
Brendan Corish	On any occasion when the Minister for Posts and Telegraphs feels that he should send an order in writing to Radio Telefís Éireann for the deletion of a news item, will he place a copy of it in the Library?
Joseph Brennan	It is not necessary.
Brendan Corish	How are we to know whether you did it or not?
Joseph Brennan	It will be on record. Section 31 gives absolute power to the Minister to withdraw any item [1398] for presentation and subsection (2) gives a Minister power to direct the Authority to allocate broadcasting time for any announcements by or on behalf of any Minister of State in connection with the function of the Minister and the Authority shall comply with the direction. Neither of these has been used.
James Tully	Last week the Taoiseach said it was used and that he had a right to use it.
A Deputy	He did not.
Patrick J. Lenihan	Deputy Cosgrave used it.
Maurice E. Dockrell	Does that right apply to any other Minister?
Joseph Brennan	Section 31 gives the Minister for Posts and Telegraphs very definite powers, but surely that section implies a certain code of behaviour?
James Matthew Dillon	Which is not being observed.
Joseph Brennan	I think any Minister has the right to protest and I hope always will. That certainly does not mean that a position should continue until such time as drastic action has been taken. If I felt that something was being presented on Telefís Éireann that was not in accordance with what I believed to be the standard I demanded, I would make it known, without invoking the actual section. I would make it known to the Authority that I did not approve of it. I think any other Minister has the right to do the same.
Brendan Corish	We have no such power.
Joseph Brennan	Of course you have.
Michael O'Leary	Where a mistake is made in the deletion of an item and a Minister apologises, will the Minister make known to the House that, in fact, he has apologised?
Brendan Corish	What is the Minister doing with the Director General and the members of the Commission if he has this power?
Joseph Brennan	[1399] I should like to say here that Radio Telefís Éireann have been carrying out a difficult job very well.
Deputies	And they should be allowed to do it.
Joseph Brennan	Complaints have been made to me that they have been leaning over backwards to give the Opposition more than their due share of coverage.
Gerald L'Estrange	There were six Ministers mentioned on the news on Friday evening, one after another. Tom O'Higgins was never mentioned during the Presidential election.
Joseph Brennan	What a Minister does is always news.
Patrick J. Lenihan	The Deputy will never be news anyway.
Ceann Comhairle	If Deputy L'Estrange cannot restrain himself, I shall have to ask him to leave the House. I have warned him.
Gerald L'Estrange	The Minister——
Ceann Comhairle	Is the Deputy charging the Chair with partiality?
Gerald L'Estrange	No, but the Minister got personal to me. You may not have heard him, a Ceann Comhairle.
Ceann Comhairle	I am warning Deputy L'Estrange finally if he will not conduct himself, I shall ask him to leave the House. There must be some order some time in this House.
42.
Gerald L'Estrange	asked the Minister for Posts and Telegraphs if Radio Telefís Éireann are obliged by law to act on representations made by individual members of the Government in regard to its current affairs and news programmes.
Joseph Brennan	The answer is “no.” However, under section 31 of the Broadcasting Authority Act, 1960, the Minister for Posts and Telegraphs may direct Radio Telefís Éireann in writing (1) to refrain from broadcasting any particular matter or matter of any particular class or (2) to allocate [1400] broadcasting time for any announcements by or on behalf of any Minister in connection with the functions of that Minister and the Authority must comply with any such direction.
Gerald L'Estrange	If the answer is “no”, does the Minister agree that it is in the public interest to have a Minister of State ringing up Radio Telefís Éireann requesting them to put on or take off certain news items?
Joseph Brennan	I hope a Minister of State will always have at least the same right as every other citizen to ring up and complain.
Gerald L'Estrange	“Compel”: anybody can complain.
Joseph Brennan	There is no compulsion.
Mark A. Clinton	Undue influence in the wrong place.
Frank Cluskey	Would the Minister use the power vested in him to have the news item the Minister for Agriculture objected to removed or altered in any way if he had been aware of it before the Minister for Agriculture objected?
Joseph Brennan	That is a hypothetical question but, looking at it in retrospect, if I thought it would be presented in that way, I certainly would prevent it.

1971

Des O'Malley 1971 perspective; was Minister for Justice and supported use.

In June 1971, RTÉ asked government for spokesman for debate against "two Provisionals"; government refused and said it would prefer the programme not go ahead; RTÉ refused absent a written section 31 order. The later order rumoured a promise by Lynch after meeting Heath at Chequers, same day as RTÉ news reported Cathal Goulding and Seán Mac Stíofáin said OIRA and PIRA would be stepping up campaigns. Criticisms: vagueness of order (Viet Cong etc); access to UK TV; "radical chic" era ending regardless.

Gerry Collins answers Dáil question on the first order:

The terms of the directive are as follows:

"To the Radio Telefís Éireann Authority—In exercise of the powers conferred on me by section 31 of the Broadcasting Authority Act, 1960, I, Gerard Collins, TD, Minister for Posts and Telegraphs, hereby direct you to refrain from broadcasting any matter of the following class i.e. any matter that could be calculated to promote the aims or activities of any organisation which engages in, promotes, encourages or advocates the attaining of any particular objective by violent means."

On 24th June last in answering a parliamentary question about a radio programme "This Week", the Taoiseach made the Government's view clear that it is not in the public interest that members of an illegal organisation should be permitted to use such a programme for publicising their activities. On 28th September, members of an illegal organisation were interviewed on a television programme "Seven Days" in a way which I, and the Government, considered to be prejudicial to the public interest.

Following full consideration and with the approval of the Government, I issued the direction under section 31 of the Broadcasting Authority Act, 1960.

— 

Barry Desmond: May I ask why the directive was issued in such vague and generalised terms which must inevitably cause serious difficulty of interpretation and implementation for the Authority and which was the subject of a statement by the Authority and why the organisations or individuals referred to, or which were obviously under consideration by the Government were not named?

Gerard Collins: I do not think it was vague. I am quite confident that the Authority will have no difficulty whatever in understanding what is meant and acting accordingly. Regarding the second part of the supplementary question, as to why I did not name individuals or organisations and spell out in black and white—I think this is what he was trying to ask —name these people so that they would be easily recognised, this is not an easy thing to do. As the Deputy is aware, names of organisations can change overnight and the Deputy should also be aware that many of these gentlemen wear more than one hat.

Barry Desmond: Is the Minister aware that in fact within the RTE organisation there has been considerable difficulty in interpreting the directive and that this was indicated immediately following the issue of the directive?

Gerard Collins: It is a matter for the RTE Authority to interpret the directive and suitably instruct the members of the RTE organisation.

RTE 1972 report

Section 31 of the Broadcasting Authority Act provides that the Minister for Posts and Telegraphs may direct the Authority in writing to refrain from broadcasting any particular matter or matter of any particular class and that the Authority shall comply with the direction. On 1 October 1971, the Minister served the first such direction on the Authority. The direction required the Authority 'to refrain from broadcasting any matter of the following class, i.e. any matter that could be calculated to promote the aims or activities of any organisation which engages in, promotes, encourages or advocates the attaining of any particular objective by violent means'.

In a statement issued following the receipt of the direction, the Authority indicated that RTE staff had conscientiously endeavoured to provide the community with a comprehensive news and current affairs service including coverage of violent events taking place in the North and elsewhere. The statement expressed the Authority's belief that it would be failing in its statutory duty were it to ignore the existence of any significant developments in the community, legal or illegal, and that in discharging its functions it did not believe that it helped to promote the aims and activities of any organisation of the type referred to in the direction. The statement concluded by saying that in spite of the added difficulty which the direction would cause, the Authority, fully conscious of all the responsibilities involved, would endeavour to provide a balanced, comprehensive and authentic service, fully responsive to the needs of the whole community.

The Authority acknowledges the special responsibilities of the national broadcasting service at all times. It would be contrary to its policy to permit broadcasting to be used for the advocacy of violence by any organisation as a means of attaining particular aims. A distinction must be made between the obligations of the Authority in the field of reporting and analysis of activities and events that are an important feature of the national scene, and incidental publicity that may derive from the broadcasting treatment of such activities or events. The Authority is of the view that the national interest is best served by the provision of a comprehensive information service, and it made every effort to ensure that its broadcasting treatment of activities and events in the growing complexity of the Northern Ireland situation over the past three years was handled in a responsible manner.

The Authority wishes to record its view that a statutory direction under Section 31 of the Broadcasting Authority Act should not be indefinite as to duration. It considers that any such direction should be fora specified period and should be renewed only if considered essential

— 

November 1972 sackings

Every effort was made during the year to ensure that matters related to the complex situation in Northern Ireland continued to be handled in a responsible manner. However, following a radio programme on 19 November 1972 in which the substance of an interview with a person subsequently convicted of membership of an illegal organisation was broadcast, an exchange of correspondence took place between the Minister and the Authority. The Government dismissed the Authority on 24 November. A new Authority was appointed on the same date. Shortly after its appointment, the new Authority approved of detailed guidelines to assist editorial staff in observing the Minister's direction. The new Authority also endorsed the view of its predecessor that a statutory direction under section 31 should not be of indefinite duration; that it should be for a specified period and should be renewed only if considered essential.

— 

Conor Cruise O'Brien: When we were discussing this matter last Thursday fears were entertained that the Government might be about to take drastic action. The Minister's ambiguous directive was followed up by a demand for disciplinary action under it with what was, at that time, a veiled threat. The veiled threat has now been unveiled. The Minister has dismissed the RTE Authority, who were appointed by his own Government. The members of that authority had issued, as we now have learned, a considered reply to the Government's directive. They admitted that a mistake had been made, that a certain course of action taken by members of the staff of RTE had been a mistaken one. They indicated that they were prepared to take steps to ensure that this would not be repeated. They could not have made a more conciliatory reply than the one that they did in fact make but that availed them nothing. The Minister and the Government were determined that they should go. They went and were replaced by a new authority of the Government's choosing—in effect, a Government take-over, in humiliating circumstances, of the authority.

Ben Briscoe: Section 31 of the Broadcasting Act seems to have been clear to most people, with the exception of the authority. It is not the first time that the authority has been spoken to regarding section 31. ... the chairman of that authority should long ago have approached the Minister if he considered the directive to be vague. Had he done so, perhaps the Minister could have explained to him what it involved.

— 

Authority members sacked

Dónall Ó Móráin (Chairman; Gael Linn founder), Phillis Bean Uí Cheallaigh, J. I. Fanning (Midland Tribune editor), T. W. Moody, Michael O'Callaghan, Liam Hyland, Stephen Barrett, Noel Mulcahy, Seán Ó Murchú (journalist)

New authority members

J. A. Scannell (Chairman), Matthew Feehan, Peter Leon (lawyer), Valentine Jago, Patrick McAuliffe, Rory Murphy, Mícheál Ó Móráin

Authority members appointed by coalition in 1973

Dónall Ó Móráin (Chairman), Sheila Conroy (feminist and trade unionist), William Finlay (S.C. and bank governor), Hilary Heron (Ulster sculptress), Charles McCarthy (Vocational Teachers' Organisation), James McGuire (editor Western People), Seán Mac Réamoinn, Patrick O'Keeffe (editor Irish Farmers' Journal), John Robb

CCOB said "Mr. Donal Ó Moráin was, of course, the chairman of the authority which was removed on 24th November, 1972. In renominating him I should like to pay a tribute to the members of the authority which he led. In difficult circumstances and confronted with delicate choices, he and they may have made some mistakes, as all of us must do, but they showed a consistent sense of their responsibilities and an integrity beyond praise"

13 may 1973 Seven Days interview of CCOB

1976

Conor Cruise O'Brien introducing bill in 1975 in Seanad:

As to the second main purpose of the Bill, the statutory restraints on the authority are contained in section 3 of the Bill. This section restates and expands the provision in the 1960 Act concerning objectivity and impartiality. It imposes on the authority the obligation to apply the same standards as regards objectivity and impartiality to any written, aural or visual material they may publish or distribute and it gives statutory backing to the present practice whereby the impartiality requirement is considered to be fulfilled if all significant views are aired in two or more related programmes if these are broadcast over a reasonable period. The section also prohibits the authority from broadcasting or publishing any matter likely to promote, or incite to crime or to lead to disorder. This new provision is intended to replace the directive issued by my predecessor under section 31 (1) of the 1960 Act as well as that section itself. That directive will therefore lapse with the passage of this Bill. Normally, the authority will be left to apply this new provision independently, in accordance with its own judgment. However, because the Government responsible to Parliament must retain the final say in the particular difficult and sensitive area of the security of the State, I propose to retain, while modifying, the power to issue directions. I will refer to this again later, both when talking about section 16 of the Bill, and in more general terms in the final part of my remarks.

:

Under the 1960 Act the Minister had the unrestricted power to prohibit the broadcasting of any class of matter —section 31—and the Government had also the unrestricted power to dismiss any member or all members of the authority—section 6. This combination of unrestricted powers is a very formidable one: it has proved too formidable, in my view, to continue to be entrusted to any Minister in relation to so sensitive a matter as broadcasting.

The powers of the Minister will accordingly be restricted if this Bill becomes law. The Minister will no longer have power to prohibit the broadcasting of any matter whatever; he will only have power to prohibit the broadcasting of matter falling into certain defined categories. He will be obliged, as he is not obliged under existing legislation, to lay any such directions in the form of a statutory order before both Houses of the Oireachtas, either House of which can [770] annul it by resolution. The period during which the order would remain in force is also now to be limited.

Finally, the setting up of the Broadcasting Complaints Commission represents an implicit and indirect, but real, new limitation on the powers of the Minister. Under the existing law there is no judge, other than the Minister, of whether the authority was complying with its responsibilities— for example in relation to objectivity and impartiality.

It is true that the existing legislation does not explicitly make the Minister the arbiter on question of objectivity. But it provides no other arbiter, and it gives the Government power to dismiss the authority without reason given, and presumably for some failure or failures in relation to any or all of its responsibilities under the Act, including its responsibilities in relation to objectivity and impartiality. In the Broadcasting Complaints Commission there will now be an independent arbiter of these questions, relieving the Minister of a power which should not lie in executive hands, while thus at the same time providing a proper protection for the authority, and serving, and being seen to serve, the interests of broadcasting generally and of the people.

The new legislation then restricts ministerial powers to a significant extent. More important, it seeks to ensure that these powers be more clearly defined, less open to arbitrary use, and subject to closer democratic scrutiny. The most important factor is not so much the restriction of these powers, as the greater exposure of their workings to the light of day. For the ministerial powers here retained and defined are still—and I wish to emphasise this—very important. In so far as they relate to broadcasting likely to “promote or incite to crime or to lead to disorder” the powers retained are not less, within that particular category, than the powers which were available in relation to that category—as well as all other categories—under the present section 31, subject only to the requirement of laying the order before both [771] Houses of the Oireachtas and the power of the Oireachtas to annul the order.

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 for other views 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 before you. There may also be those who think, on the contrary that the present legislation goes dangerously far in limiting the State's powers to intervene, that the State requires a great reserve of latitude in this domain, and that this is here unwisely and uncautiously reduced.

I believe that it is on this issue— briefly the issue of State censorship— that the main debate precipitated by this legislation is likely to turn. I propose, therefore, in the closing part of my remarks, to come back to this question, and to consider some of the basic problems and principles involved. I am afraid the nature and complexity of the subject will require me to treat it at some length. I hope that Senators will not consider this an abuse of their time and patience, but I believe that one of the advantages of introducing such a measure in the Senate is that there is more room for calm deliberate consideration of issues of principle than tends to be favoured by the tempo and atmosphere of the other House.

:

Any legislation on broadcasting, even limited amending legislation as at present, necessarily raises very fundamental issues: essentially those of freedom in a democratic state and the limits of such freedom.

When the original Bill was debated, according to the record, there was relatively little discussion of these fundamental issues and the debate concentrated in the more immediate and practical aspects of the legislation, which was of course generally, and in the main rightly, welcomed.

:

The seven basic questions which I would put, and to which I would offer tentative answers for your examination, are the following : Has the democratic State the right to pass repressive legislation? Has it the right to restrict freedom of expression? If so, what limitations should apply to such rights? Should the State have greater rights of restriction in relation to broadcasting than to the Press? What limitations should there be on the [779] State's right to intervene in broadcasting? When we speak of freedom in broadcasting, whose freedom do we mean and how is it to be defended? Finally, whatever principles we hold valid in relation to these general questions, are there any special circumstances prevailing in our society in our time which make it necessary or prudent to apply these principles in particular ways?

:

Coming now more closely to the nub of our discussion here, we consider the fourth question ... If the State allocates the use of a public asset and if it requires citizens who wish to benefit from use of that asset, to pay for their privilege, then the State, on behalf of the citizens who pay the licence fees and elect 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.

:

Professional broadcasters have themselves publicly noted that, in certain conditions, the mere appearance of a television camera on a street may tend to speed up the action of a riot —the speeding up being clearly aimed at the television camera and through it at television screens throughout the area, the presumed object and probable effect of this being to spread similar patterns of conduct more widely.

:

This brings us to the fifth question ... The difficulties involved here are probably never entirely soluble.

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my sixth question ... no individual is entirely free to do what he likes; ... that is to say, the freedom involved is a collective freedom, under law.

:

I believe that, on the whole, the present structures, whereby the Director General is nominated by and responsible to an authority nominated by the elected Government, have tended in general to serve these two purposes—never wholly compatible or wholly attainable—of protecting both the public and the broadcasters. But I believe also that these structures can be improved by defining what might be called the reserve powers retained by the Government and Parliament as relating to security—and security only—and by doing everything possible to eliminate the danger of covert interference for reasons other than those basic reasons on which I have laid stress here.

:

The final question ... In our conditions there are forces at work which tend to turn the normal sturdy sulkiness of the democratic citizen into something rather more disturbing. ... To speak more plainly: too many people speak and write as if the armed conspiracies known as the IRA, have a legitimate or quasi-legitimate, though usually unspecified, role to play in our society. This permeates the language that is used about them and that language in turn reinforces the peculiar kind of authority which they have held, which has done enormous damage ... I think it would be fair to say of many—though certainly not of all—of those who write and broadcast in this country that they have fallen over the years into a cautiously propitiatory habit of reference towards armed conspiracies within the Republican family.

:

I believe that our public are now clear sighted enough about the IRA, that they see its danger generally, detect the falsity of its promises and want nothing to do with it.

:

This is not because there is any serious danger at the present time that material sympathetic to the IRA would cause the citizens of the Republic to engage in widespread violence. The results, the dangers are more long-term, and therefore all the more appropriate to be guarded against by legislation.

:

Basically, if the State broadcasting system were in any way to accredit the idea that the IRA is a quasi-legitimate institution or that it is appropriate for citizens to be neutral as between the democratic State and the armed conspiracies which seek to usurp its functions—and have on occasions actually usurped some of them — then that pattern of presentation coming from that source—that is, a source closely associated with the State itself—would tend to confuse the citizens, by intensifying the false air of legitimacy with which the IRA has managed to surround itself and would thereby under any propitious conditions which might occur and there might be such conditions, further the criminal purposes of that organisation.

Of no less importance than this is consideration of the impact of our [794] broadcasting in Northern Ireland— and, of course, our sound broadcasting can reach virtually all of Northern Ireland and our television some 14 per cent or 15 per cent of viewers there—where there exists among the majority a widespread impression— greatly, understandably and most ominously strengthened by certain events of five years ago—that this State is in some kind of collusion with the IRA. Anything in our broadcasting that would seem to confirm that false impression, is directly dangerous to life, both in Northern Ireland and here, and I think Senators will know that I do not exaggerate there. In normal circumstances, and I hope in all circumstances likely to arise, it is for the broadcasting authority itself to ensure that a proper balance is kept, through the discharge of its responsibilities under law. But in view of the serious implications of these matters for the State and its people, it is necessary for the State to retain a reserve power of intervention which may never be used, but is there in case of need.

This legislation seeks at one and the same time to retain that reserve power and to ensure that it is not misused for purposes other than those for which it is intended. The actual wording of that reserve power, both in section 16 (1) and also in the parallel prohibition to the authority contained in section 3 (1A) will rightly be carefully scrutinised by the Seanad and has already been subjected to some criticism in the Press and by broadcasters. It is criticised as being unduly wide and the objection is understandable. It is fair to point out however that, wide though it may be, it is far less wide than the power conferred by section 31 of the existing Act—a power which is without limitation of any kind whatever. I 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 justifiable: the area is that of security.

The wording used in these sections closely resembles the wording used in the British Independent Broadcasting [795] Act of 1973—and similar prescriptions applied to the BBC—which have generally not given much concern to journalists and broadcasters. The wording has, I think, to be reasonably wide if it is to be effective in application to the many unforeseen situations which may arise, to the ever-changing nature of crime and associated forms of disorder, and to the complex relationship of broadcasting to these.

:

I am not under the illusion that any restrictive provisions embodied in broadcasting legislation can be 100 per cent effective. The 1960 Act, which in its present form is considerably more sweeping and drastic in its provisions than it will be if these amendments are carried, was yet by no means always successful in restraining the kind of manifestations which it was presumably intended to restrain. Legislation is static; broadcasting fluid and volatile; broadcasters always impatient of curbs and on occasions ingenious in evading them.

Restraints work only in a clumsy, intermittent and painful fashion unless those concerned are themselves convinced of a need for some restraints. If of course it were certain that all broadcasters were convinced [796] of such a need and would in all circumstances remain so, then there would be no need for any external legislative restraint. However, this is not likely to be the case. The broad-caster's professional instinct, I believe, inclines him or her towards exposure of what is exciting, even sensational and to regard the possible social effects of such exposure as conjectural and outside his or her sphere.

Instances of active sympathy with the armed conspiracies and desire to promote their cause by propaganda are rare, though not altogether unknown. A kind of neutral professionalism, indifferent to social consequences, is much more widespread and lasting. It is for this reason that the public interest has, in the Government's view, to be protected. The old legislation, and the amendments to it which I now propose, both aimed to serve that end. If legislation is to serve that end as effectively as possible, broadcasters and other interested citizens should have the opportunity of understanding, not just the nature of the steps the Oireachtas is taking, but the reasons why it judges such steps as it will eventually decide to be necessary.

:

The latter part of my remarks has tended to dwell upon those negative aspects with which it is the duty of the Government to concern themselves I have not wished to gloss over those limitations and restrictions which this Bill retains. At the same time it should be kept in mind that this is not a more restrictive Bill than those provisions which it seeks to change. It is distinctly less restrictive in relation to the authority while it delimits the powers of the Government more strictly, and provides for parliamentary scrutiny of these. It reinforces the authority's security of tenure during the period of its appointment. It limits the ministerial orders which may be issued to the authority both in the scope and in duration, and makes them subject to annulment by either House of the Oireachtas.

Broadcasting Authority (Amendment) Act, 1976

2. Removal of member of Authority.

A member of the Authority may be removed by the Government from office for stated reasons, if, and only if, resolutions are passed by both Houses of the Oireachtas calling for his removal.

3. Impartiality.

The Principal Act is hereby amended by the substitution of the following subsections for section 18 (1) : “

(1) Subject to subsection (1A) of this section, it shall be the duty of the Authority to ensure that—

:

(c) any matter, whether written, aural or visual, and which relates to news or current affairs, including matters which are either of public controversy or the subject of current public debate, which pursuant to section 16 of this Act is published, distributed or sold by the Authority is presented by it in an objective and impartial manner.

:

(1A) The Authority is hereby prohibited from including in any of its broadcasts or in any matter referred to in paragraph (c) of subsection (1) of this section anything which may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

(1B) [...]”.

4. Broadcasting Complaints Commission.

The Principal Act is hereby amended by the insertion of the following sections after section 18 :

“18A.—(1) Not later than the 31st day of March, 1977, there shall be established by the Government, on the request of the Minister, a body to be known as the Broadcasting Complaints Commission and which is in this Act referred to as the Commission.

:

18B.—(1) Subject to the provisions of this section, the Commission may investigate and decide any of the following complaints—

:

(c) a complaint that by broadcasting matter so specified, the Authority failed to comply with the requirements of section 31 (1) of this Act (inserted by section 16 of the Broadcasting Authority (Amendment) Act, 1976) as regards an order made under the said section 31 (1) and so specified,

16. Amendment of section 31 of Principal Act.

The Principal Act is hereby amended by the substitution of the following subsections for subsection (1) of section 31 :

“(1) Where the Minister is of the opinion that the broadcasting of a particular matter or any matter of a particular class would be likely to promote, or incite to, crime or would tend to undermine the authority of the State, he may by order direct the Authority to refrain from broadcasting the matter or any matter of the particular class, and the Authority shall comply with the order.

(1A) An order under subsection (1) of this section shall remain in force for such period not exceeding twelve months as is specified in the order and the period for which the order is to remain in force may be extended or further extended by an order made by the Minister or by a resolution passed by both Houses of the Oireachtas providing for its extension; provided that the period for which an order under the said subsection (1) is extended or further extended by an order or resolution under this subsection shall not exceed a period of twelve months.

(1B) Every order made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to its validity prior to the annullment.”.

Orders

The first order under the 1976 act was made on 20 January 1977, effective for one year. Further orders were made annually to keep the previous order in force for another 12 months, the last expiring on 19 January 1994. The organisations prohibited in 1977 were the IRA, "Provisional Sinn Féin" (renamed "Sinn Féin" in the 1983 order), and any organisation proscribed under the UK's Northern Ireland (Emergency Provisions) Act 1973. Added later were the Ulster Defence Association in 1978, the Irish National Liberation Army in 1983, Republican Sinn Féin in 1987, and the Irish Peoples Liberation Organisation in 1990. The 1977 order prohibiting broadcast of "an interview, or report of an interview" with a "spokesman" for a listed organisation; in the runup to the February 1982 general election, this was extended to "a broadcast, whether purporting to be a political party broadcast or not" supporting Sinn Féin (likewise Republican Sinn Féin from 1987). The relevant section of the 1973 UK act was replaced in 1978 and 1991, and Section 31 orders in 1980 and 1992 were updated accordingly.

In late 1980, Robert Kee's 13-part documentary Ireland, A Television History began broadcast simultaneously on BBC and RTÉ. The last two episodes covered the Troubles and included archive footage of British television interviews with paramilitaries, which were not prohibited in UK law at the time. An order was passed exempting the series from the section 31 prohibition. Noel Browne objected that an exception had been made for a BBC programme rather than one made by RTÉ; Betty Purcell said it was "to save the Irish state embarrassment in the international arena".

Radio and Television Act, 1988

The following subsections are consequential provisions which are needed if this power should have to be used. Section 12 provides that any order made by the Minister under section 31 of the Broadcasting Authority Act in relation to RTE will apply equally to any of the services established under this Act. I appreciate, of course, that there are many different views about the efficacy of section 31 but the logic of the situation dictates that if the Government of the day [793] determine that such an order is needed it should apply equally to these services

11. Complaints by public.

:

(4) For the purposes of an investigation by the Broadcasting Complaints Commission pursuant to regulations under this section—

(a) the Broadcasting Authority Act, 1960 , shall have effect subject to the following modifications—

:

(v) a reference in section 18B (as so inserted) to section 31 (1) of the Broadcasting Authority Act, 1960 , shall be construed as a reference to section 12 .

12. Application of orders under section 31 (1) of Broadcasting Authority Act, 1960.

Every direction given to Radio Telefís Éireann pursuant to section 31 (1) of the Broadcasting Authority Act, 1960 , by the Minister which is in force on the commencement of this Act or which is given by him after such commencement, shall, for so long as the direction remains in force, apply to a sound broadcasting service provided pursuant to a sound broadcasting contract and shall be complied with by a sound broadcasting contractor as if the direction were given to him, and the said section 31 (1) shall be construed and have effect accordingly.

O'Brien in 1992 said RTÉ management deliberately extended the scope of section 31 in order to discredit it in the eyes of the general public. RTÉ executive Wesley Boyd disputed this.

Tim Pat Coogan said in 1984 he campaigned successfully to prevent the 1973-77 government making a similar provision applicable to the press, and criticised RTÉ journalists for not campaigning against section 31.

1982

(1989 debate) The Deputy points to the Supreme Court judgement of 1982. The Supreme Court in that judgement referred to what it termed a constitutional obligation on the State to intervene to prevent radio and television broadcasts aimed at advocating or securing support for organisations which seek to overthrow the State by violence or which would, in any way, be likely to have the effect of promoting or inciting to crime or endangering the authority of the State. This is perhaps the matter to which the Deputy is referring. Unless those who support the use of violence were prepared to set aside violence, the Minister would obviously feel some constraint. The Minister would have to take into account not only the Supreme Court decision but all relevant matters.

1983

RTÉ were refused an exemption which would have allowed it to broadcast interviews with members of Sinn Féin during the 1983 UK election. As a protest, RTÉ journalists voted not to interview any candidates in constituencies where Sinn Féin was standing, but later rescinded this.

1984

In 1984, Betty Purcell proposed interviewing Martin Galvin of NORAID, who was planning to defy an order banning him from entering the UK. Although NORAID was not listed in the section 31 order, RTÉ executives said the interview would breach section 18(1) of the act, and rejected Purcell's proposal that the interview be pre-recorded and reviewed by a judge.

1986

Proinsias De Rossa: Information on Prionsias De Rossa Zoom on Prionsias De Rossa Would the Minister agree that section 31 as it has operated since 1976 has not had the effect of preventing the expansion of the Provisional IRA's views on the airwaves but it has had the effect of precluding trade unions representatives and elected public representatives from expressing their views on trade union and local affairs and that this is an anomaly which should be addressed by eliminating section 31?

Mr. J. Mitchell: Information on Jim Mitchell Zoom on Jim Mitchell There is room for two views on section 31. A court case was heard on the initiative of the members of Sinn Féin and the Supreme Court ruled in relation to section 31, in very trenchant terms, that not only was the Minister [1688] right not to allow people who would use force to overthrow the State to use the airwaves, but he had a duty to prevent them from using them. That ruling has circumscribed the discretion of the Minister in relation to section 31. I do not want anyone to think if it were not for this ruling our position would be different but any Minister looking at the terms of the Supreme Court ruling will find himself in the same position as I do with little room to manoeuvre even if he wished.

Mr. Leyden: Information on Terry Leyden Zoom on Terry Leyden Would the Minister agree that a full review of section 31 is appropriate in the light of developments in communications and in relation to the widespread use of cable systems which provide access to British television stations which are not governed by section 31? Indeed those services are being provided by RTE in the greater Dublin area. Also there is no limitation on direct satellite broadcasting. The Minister has granted approval to people to provide reception dishes and in view of recent political developments and of the fact that the Dáil—— Mr. Leyden: Information on Terry Leyden Zoom on Terry Leyden We now have direct broadcasting of proceedings in the Dáil. Does the Minister feel it would be appropriate to give very serious, detailed consideration to the effectiveness of section 31 and reasons for its continuation as applied today, especially in relation to local authority representatives who may be discussing——

Mr. Leyden: Information on Terry Leyden Zoom on Terry Leyden In the light of developments, will the Minister look at all the proposals made by the NUJ and RTE who are a responsible network and could operate successfully without operating section 31?

Mr. Gregory-Independent: Information on Tony Gregory Zoom on Tony Gregory Does the Minister consider that a new situation exists as Provisional Sinn Féin are prepared to participate in the democratic institutions of the State? In view of that decision, does he feel that a review would be appropriate?

A December 1986 opinion poll in Dublin found a majority opposed to Section 31, with Fine Gael the only party whose supporters were more likely to support it. Nicky Kelly of the Repeal Section 31 Committee claimed that in three momths survey of RTÉ, in only three percent of instances where coverage was affected by Section 31 was the fact mentioned in the coverage.

1987

In November 1987, Nell McCafferty, up to then a frequent commentator giving a Republican perspective on RTÉ current affairs programmes, answered yes when pressed by Conor Cruise O'Brien as to whether she "support[ed] the Provos"; she was not invited onto further RTÉ programmes.

Ray Burke in the Dáil: As far as the review is concerned, anomalies such as the position of local authority members not being allowed to be interviewed even in relation to ditches, drains, lights or other issues and the situation of trade union leaders or officials also being barred are two of the points which have been brought to my attention by those who want an amendment of the present section 31.

1988

RTE dismissed reporter Jenny McGeever in March 1988 for a report on Morning Ireland which included 17 seconds of Martin McGuinness discussing the Gibraltar Three funeral. The Irish Council for Civil Liberties called the action "excessive". Charlie Bird later wrote that McGeever was a recent recruit who had been up all night preparing the report for a short-staffed programme. According to Betty Purcell, the NUJ viewed McGeever as a scapegoat and concentrated on preventing the more senior editors on Morning Ireland being disciplined; McGeever settled out of court for £5,000.

1990

Olivia O'Leary worries about "soft-focus stories in the newspapers" about Sinn Féin, with Section 31 "shielding" them from "messy questions about murder and terror".

1991

RTÉ journalists lost a European Court of Human Rights case under several provisions of the European Convention on Human Rights:

Given the limited scope of the restrictions imposed on the applicants and the overriding interests they were designed to protect, the Commission finds that they can reasonably be considered "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

the principle of equality of treatment of all citizens in the exercise of their right to vote, but it does not give the citizen a right to demand that all political parties competing in an election be granted radio and television coverage or be granted the same amount of such coverage. The fact that Sinn Fein is a registered political party makes no difference in this respect. The registration of a party in Ireland is a mere administrative formality; its only legal effect is that candidates who are members of a registered party may add that party's name to their own name on the ballot-paper. Registration is not a licence, nor does it imply a recognition of the party or its activities. ... this is a question of policy which it is not called upon to consider in the context of its examination of the application under Article 3 of Protocol No. 1 (P1-3).

Betty Purcell in 1991 said Tony Gregory was then the only TD who opposed section 31 on freedom-of-speech grounds.

1993-4

In the O'Toole case, the courts said he could be interviewed as a trade union official without fear of his Sinn Féin credentials being relevant; in the Brandon Books case, the courts said RTÉ could judge whether Gerry Adams' political persona could be separated from his literary persona.

May 1993

Deputy De Rossa referred at length in the course of his contribution to section 31 of the Broadcasting Authority Act, [793] 1960, amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976. The recent decision of the courts to allow members of Sinn Féin to refer to items which are not contentious, either in regard to violence or the undermining of the authority of the State, was a prudent one. If a member of Sinn Féin is a member of a local authority and has a point to make about a local issue, that type of comment should be permitted. It would appear that over the years a number of people in RTE have been stirring up the pot on that point with a view to getting section 31 in its totality removed from the Broadcasting Authority Act, 1960. Therefore I am glad to observe a modicum of commonsense enter the overall debate, allowing people to make a contribution which does not reflect on the authority of the State.

Dec 1993

Higgins schtum

In the course of my examination, I asked the RTE Authority to let me have the guidelines which they would propose to issue to staff in the event that the Order under section 31 was not renewed next January, and, in relation to matters at present covered under the terms of [625] the current section 31 Order, that the Authority had to comply with the provision of section 18 (1A) of the Broadcasting Authority Act, 1960, inserted by section 3 of the Broadcasting Authority (Amendment) Act, 1976.

This section prohibits the Authority, inter alia, from including in any of its broadcast anything which may reasonably be regraded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State.

It would be a matter for the Authority, to decide whether to publish the guidelines under which it would operate in these circumstances. RTE is autonomous in relation to its day-to-day activities under the broadcasting legislation and I have no statutory functions in relation to the content of any guidelines the Authority may issue to its staff in relation to programme matters.

Jan 1994

First broadcast was on Highland Radio which could be picked up in Derry where the ban was still in force till later in 1994.

Feb 1994

Motion by Michael McDowell for reinstatement:

That Dáil Éireann, in view of the continuing campaign of slaughter and destruction in Northern Ireland and in view of the failure of those engaged in or supporting the campaign of violence to accept the Downing Street Declaration as a just basis for developing a political settlement, calls on the Government to make orders under section 31 of the Broadcasting Authority Act, 1960, in the same terms as applied until 19 January 1994, on a two-monthly basis until such time as those engaged in the campaign of violence and those who are in or associated with the organisations mentioned in the orders publicly commit themselves to an immediate and permanent cessation.

Replaced by motion welcoming non-renewal:

That Dáil Éireann, recognising the maturity of the Irish people, welcomes the Government decision not to renew the order under section 31 (1) of the Broadcasting Authority Acts, 1960 to 1993, and expresses confidence in the professionalism of Irish broadcast media journalists in carrying out their responsibilities in compliance with the terms of Article 40 of the Constitution, the Prohibition of Incitement to Hatred Act, 1989, and current broadcasting legislation.

The latter was carried 79–43, supported by Lab and FF (govt parties); opposed by PDs and FG. DL abstained in the vote though Proinsias De Rossa spoke against the original motion.

Minister Michael D. Higgins said:

Section 18 (1A) of the Broadcasting Authority Act prohibits the RTE Authority from including in any of its broadcasts anything which may reasonably be regarded as being likely to promote, or incite to crime or as tending to undermine the authority of the State. Section 9 of the Radio and Television Act, 1988 places similar prohibitions on independent radio stations operated under the auspices of the Independent Radio and Television Commission. The fundamental difference between section 18 (1A) and the terms of an order under section 31 (1) is that, in the first case, it is the responsibility of the RTE Authority and the independent radio operators to decide what contravenes the law whereas, in the second case, the Minister forms his opinion on what should not be broadcast and imposes a statutory ban. In addition, we have the Prohibition of Incitement to Hatred Act, 1989 which prohibits a broadcast which is intended to or likely to stir up hatred. It is my view that the public good is sufficiently protected by these provisions which remain in place and that it is unnecessary for a Minister to be dictating to a broadcasting authority what is unfit to be transmitted.

2000s

Broadcasting Act 2001

Repealed the following sections of the 1969 act:

• sections 18A, 18B, and 18C (inserted by section 3 of the 1976 act to establish the Broadcasting Complaints Commission, whose function was redefined by Part III of the 2001 act)
• section 19 (1960 ministerial approval of "periods ... for broadcasting"; 1976 changed to approval of "total number of hours per year of broadcasting"; no replacement)
• subsections (1), (1A) and (1B) of section 31. (latter inserted in 1976)

The section 31 repeal was on Dáil committee stage; the second stage envisaged extending section 31(1) orders to TnaG etc as the 1988 act had done for independents.

Broadcasting Act 2009

The Broadcasting Act 2009 repeals 1960 and 1988 acts and most of 1976 act including relevant sections.

39. Duties of broadcasters.

(1) Every broadcaster shall ensure that—

:

(d) anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster

Undated

Those opposing section 31 were seen as supporting the IRA. Larry O'Toole said damaged Sinn Féin electorally.

Supporters within RTÉ were an unusual alliance of the Workers Party and the conservatives; some sources claim the WP was in turn a pawn of the UK intelligence agencies.[From this; better source needed]

References

Primary

Acts

• Broadcasting Authority Act, 1960
• Broadcasting Authority (Amendment) Act, 1976
• Radio and Television Act, 1988
• Broadcasting Act, 2001
• Broadcasting Act 2009

UK Acts

• NI (EP) A 1973 Sch 2
• NI (EP) A 1978 Sch 2
• NI (EP) A 1991 Sch 2

SIs

• 7/1977, 10/1978, 9/1979, 16/1980, 21/1981, 51/1981, 9/1982, 21/1982, 17/1983, 12/1984, 10/1985, 10/1986, 13/1987, 337/1987, 3/1989, 11/1990, 6/1991, 4/1992, 42/1992, 1/1993

Court cases

• The State (Lynch) v Cooney, [1982] IR 337
• O'Toole v RTE (No 2), [1993] ILRM 458
• "15404/89: Purcell -v- Ireland". [1991] ECHR 77. 16 Apr 1991. Retrieved 10 June 2016.

Broadcasts

• "Broadcasting Section 31" (Seven Days, 5 October 1971)
• "RTÉ Issues Guidelines to Staff on the Lapsing of Section 31" (RTÉ News, 21 January 1994)

Secondary

• Corcoran, Farrel John (2004). RTE and the Globalisation of Irish Television. Intellect Books. ISBN 9781841500904. Retrieved 10 June 2016.
• Corcoran, Mary P.; O'Brien, Mark (2005). Political censorship and the democratic state: the Irish broadcasting ban. Four Courts Press. ISBN 9781851828463.
  • Roy Greenslade, Foreword.
  • Mary P. Corcoran and Mark O'Brien, Introduction.
  • I. Censorship and the State.
    • Conor Cruise O'Brien, "Broadcasting and Violence: The Case for Media Restriction."
    • Alex White, "Section 31: Ministerial Orders and Court Challenges."
    • Mark O'Brien, "Disavowing Democracy: The Silencing Project in the South."
  • II. Censorship and Journalistic Practice.
    • Desmond Fisher, "Getting Tough with RTE."
    • Colum Kenny, "Censorship, not 'Self-Censorship'."
    • Farrel Corcoran, "Government, Public Broadcasting, and the Urge to Censor."
    • Ed Moloney, "Censorship and 'The Troubles'."
  • III. Media, Censorship, and the Public Sphere."
    • Helen Shaw, "Calling the Tune: The Media, the State, and the Public's Right to Know."
    • Mary P. Corcoran, "A Deceived Audience or a Discerning Audience? News Management and the Threat to the Public Sphere."
    • Michael D. Higgins, "Culture, Democracy, and Public Service Broadcasting."
• Feeney, Peter (1984). "Censorship and RTE". The Crane Bag. 8 (2: Media and Popular Culture). Richard Kearney: 61–64. JSTOR 30023278. {{cite journal}}: Unknown parameter |subscription= ignored (|url-access= suggested) (help)
• Gopsill, Tim; Neale, Greg (2007). Journalists: 100 Years of the NUJ. Profile. pp. 316–327. ISBN 9781861978080.
• Hall, Eamonn G. (1995). "The Majestic Guarantee: Freedom of Speech; The Non-Renewal of the "Section 31" Order". DLÍ :The Western Law Gazette (9). University College, Galway. Retrieved 5 September 2016.
• Horgan, John (2012-11-12). Irish Media: A Critical History since 1922. Routledge. ISBN 9781134606160. Retrieved 10 June 2016.
• Horgan, John (2004). Broadcasting and public life: RTÉ news and current affairs, 1926-1997. Four Courts Press. ISBN 9781851828388.
• Meehan, Niall (16 August 1992). "Section 31 Ban Confusion in RTE a Result of Management Failure". Sunday Business Post. Retrieved 10 June 2016.
• Morgan, David Gwynn (1990). "Section 31: the broadcasting ban". The Irish Jurist. XXV. University College Dublin.
• Purcell, Betty (25 November 1991). "The Silence in Irish Broadcasting". In Rolston, Bill (ed.). Media and Northern Ireland. Palgrave Macmillan UK. pp. 51–68. doi:10.1007/978-1-349-11277-7_3. ISBN 9781349112777. Retrieved 10 June 2016.

External links

• "section 31" tag in the RTÉ archives