Seanad Éireann - Volume 67 - 17 December, 1969

RTE Programme: Establishment of Tribunal.

Tomás Ó Maoláin: I move:

That it is expedient that a tribunal be established for inquiring into the following definite matters of urgent public importance.

1. The planning, preparation, arrangement, production and presentation of the recent television programme on illegal moneylending, that is to say, that part of the “7 Days” feature broadcast on television by Radio Telefís Éireann on the 11th November, 1969, which related to unlicensed moneylenders and their activities.

2. The authenticity of the programme and, in particular, the adequacy of the information on which the programme was based, and whether or not the statements, comments and implications of the programme as to the number of unlicensed moneylenders operating in the city and county of Dublin and the scope of their operations, and the use of violence, or threats of violence, to secure repayments of money illegally lent, amounted [621] to a correct and fair representation of the facts.

3. The inquiries on behalf of Radio Telefís Éireann, and the films, tapes, statements, scripts, records, notes and other material in their possession, which relate to the programme.

4. The inquiries on behalf of the Garda Síochána, and the statements, taken by the Garda Síochána, which relate to the programme.

At the appropriate time I will be moving an amendment which was circulated.

An Leas-Chathaoirleach: Before I call on speakers, it might help the House if I point out what the procedure will be. Motion No. 5 has been formally moved by Senator Ó Maoláin. I shall call, firstly, on the Minister to make an explanatory speech on behalf of the Government. Following that, amendment No. 1 will be moved by Senator Miss Bourke. The seconder of that motion is at liberty to speak at that point or to reserve the speech until later. No further amendments will be moved but it is in order for all speakers, including the Minister, to refer to all the amendments of which notice has been given. At the conclusion of the debate amendment No. 1 will be put to the House. Following this, the further amendments will be put before the House in succession and finally the substantive motion, either amended or unamended, will be put to the House. Is the procedure clear?

Mr. Keery: At which stage will the motion be open for general discussion? Will that be prior to the putting of the substantive motion?

Mr. M.J. O'Higgins: On the first amendment.

An Leas-Chathaoirleach: As soon as the first amendment has been moved, and if necessary seconded, it will then be open for any Senator to offer to speak on the motion and on all the amendments. As a matter of procedure there will be only one amendment before the House; but for [622] the purposes of debate all of the amendments may be discussed.

Mr. M.J. O'Higgins: Tá sé soiléir.

Minister for Transport and Power (Mr. B. Lenihan): The Radio Telefís Éireann programme mentioned in the motion suggested that unlicensed moneylending, backed by strong-arm tactics, existed on a substantial scale in the Dublin area. The Radio Telefís Éireann Authority subsequently stated that the programme was authentic and did not present a distorted or exaggerated picture of the social problems of illegal moneylending in Dublin.

On the other hand, the Minister for Justice stated in Dáil Éireann on the 26th November, 1969, in answer to questions, as follows:

(1) The allegation that strong-arm methods are being used by unlicensed moneylenders is, in the opinion of the Garda Síochána, without any foundation in fact.

(2) While the Gardaí know that some unlicensed moneylenders operate, their number or scale of operations is nothing like that suggested by the programme.

(3) The statements purporting to be confessions by moneylenders about moneylending and strong-arm methods can be dismissed as wholly valueless.

As the Taoiseach said on the 2nd December, 1969, in Dáil Éireann, the Government, because of this conflict, decided that a judicial inquiry ought to be set up.

On the passing of this motion by both Houses of the Oireachtas, it is the intention to appoint a Tribunal of Inquiry pursuant to the Tribunals of Inquiry (Evidence) Act, 1921. The tribunal, consisting of three members of the judiciary, will have the powers of the High Court in enforcing the attendance of witnesses and examining them on oath and in compelling the production of documents. The proceedings will be public unless in the opinion of the tribunal it is expedient in the public interest to bar the public for reasons connected with the inquiry regarding [623] the nature of the evidence to be given.

The motion which has just been moved by the Leader of the House sets out the definite matters of public importance into which it is proposed that the tribunal should inquire—in other words, the tribunal's terms of reference. They are before the House for discussion and I do not wish to say anything about them at this stage except to make the point that while the Taoiseach and I are satisfied that the original terms were drawn in such a way as not to preclude the tribunal from considering the standard of care required of a journalist in his work, the Taoiseach last night, in allaying the fears which were expressed in Dáil Éireann, saw virtue in accepting, with minor modifications, Deputy Cosgrave's amendment which specifically mentioned “reasonable journalistic care”. No one can now be under any misapprehension about this matter.

Miss Bourke: I move amendment No. 1:

To delete paragraphs (1) and (2) and substitute:

(1) The authenticity of the recent television programme on illegal moneylending, that is to say, that part of the “7 Days” feature broadcast on television by Radio Telefís Éireann on the 11th November, 1969, which related to unlicensed moneylenders and their activities; and, in particular, the adequacy of the information on which the programme as journalism was based and whether or not the statements, comments and implications of the programme as to the number of unlicensed moneylenders operating in the city and county of Dublin and the scope of their operations, and the use of violence, or threats of violence, to secure repayments of moneys illegally lent, amount to a correct and fair representation of the facts.

I move this amendment primarily as a lawyer and as an independent Senator without any party political affiliations. I listened last night to the extent that [624] anyone can listen to a six hour debate in the Dáil. I think I was there as faithfully as anybody else. There was a great deal of political comment in what was voiced there and I think insufficient attention was placed on what I would like the Seanad to focus on, the terms of reference of this Inquiry.

It is extremely important that we advert to the fact that as a Parliament we are setting the basis of jurisdiction of a judicial inquiry and that the judicial inquiry will confine itself within those terms and will not look beyond them. I speak principally as a lawyer and as such I welcome this motion to set up the inquiry. I welcome the fact that the Taoiseach has seen fit to try to clear up a great deal of public disquiet on the matter and I think that this can best be done by the method of a judicial inquiry with the power of obtaining sworn evidence. I welcome it but I want us to be very precise about the terms of reference which we give as the Parliament of this nation to this judicial inquiry so that it concentrates on the problem and so that it takes the matters into account that we wish it to take into account in order to produce findings that would best justify setting up such an inquiry. The reason I want to concentrate on the terms of reference is because from my admittedly fairly limited and yet in an academic way fairly extensive experience of judicial inquiries the method by which they approach their job is to examine with legalistic care the terms of reference.

If I might refer to the official motion the terms of reference are set down at points 1, 2, 3 and 4. Points 1 and 2 are terms of reference which refer to substantive matters. The first of those refers to the planning, preparation, arrangement, production and presentation of this “7 Days” programme. The second refers to

The authenticity of the programme and, in particular, the adequacy of the information on which the programme was based, and whether or not the statements, comments and implications of the programme as to the number of unlicensed moneylenders operating in the city and county of Dublin and the scope of [625] their operations, and the use of violence, or threats of violence, to secure repayments of moneys illegally lent, amounted to a correct and fair representation of the facts.

These are two different subject matters and they are listed in order 1 and 2. It is my experience of judicial tribunals, and I think it is the way in which they would approach this, that they will examine the first term of reference put to them and they will look to the subject matter of the first point. I should like the House to look with me at this first point because it is with the first point here that I take grave issue.

My amendment makes a very necessary modification. It takes out what I think is the essential danger of the terms of reference under section 1, the terms of reference which refer to the planning, preparation, arrangement, production and presentation of the recent television programme, the “7 Days” programme, on the particular date in November. My contention is that it would be a dangerous precedent for this Parliament to set as terms of reference to a judicial inquiry, an isolated television programme, which forms part of a series of a current affairs type programme on social issues, on particular news issues in this country. Not only would it be a dangerous precedent but I submit very forcefully that the proper person to take responsibility for what is in section 1, for the planning, preparation, arrangement, production and presentation of this isolated television programme, is the independent television authority.

This authority are responsible for the internal procedural mechanisms of a television programme. They have jurisdiction under the Broadcasting Act. There is a chain of responsibility to the Director General, from the executive arm of the independent authority down to the heads of the various divisions. In the case of the “7 Days” programme, it would be the head of the news division. He could have instituted an inquiry or the Director General could have sent a memo to do so. This is a matter which is their responsibility, which is within their terms of reference. If we allow this motion to [626] go forward unamended we shall be asking a judicial inquiry, a sworn inquiry, to look into a single television programme in isolation and to take sworn evidence on it and to judge it.

The Minister this evening made reference to the standard to be applied. I understand there is an amendment and that I am entitled to speak on this amendment in proposing my own amendment. Again it goes only to the second part only of this official statement—you will note in paragraph 2 and adds to it the words “and whether or not the statements, comments and implications,” reflected reasonable journalistic care on the part of those responsible for the programme.

In paragraph 1, which I think is the dangerous one, we are giving the judicial tribunal the duty of inquiring into the planning, preparation, arrangement, production and presentation, the procedural elements, of a single television programme in isolation. We are also not setting that it be a journalistic standard of care but that it be presumably, possibly require the judicial standard of care relating to the burden of proof, in other words no programme ought to be produced unless there was proof of its truth beyond reasonable doubt or whatever the judicial standard might be. This is extremely important.

As I said I listened to the debate in the Dáil yesterday. I think there were some references to this in some of the speeches but not to the specific wording and to how terribly important this wording is because the judges who will sit on this inquiry live by words. It is their function as judges to examine with extreme care the various points of reference. They will confine themselves in a rather, narrow, legalistic way because that is how the balance of judicial independence is maintained in this country.

Secondly, as I said, the danger is then that the tribunal will look at the two paragraphs one after the other. In the amendment that I have put forward, if looked at in conjunction with the formal motion, it will be seen that what I have done in fact is only to delete the first two lines of the first paragraph, to begin with the first words of the second paragraph, in other words, it would require the [627] tribunal from the very beginning to inquire into the authenticity of the particular programme and in particular the adequacy of the information on which the programme was based in the light of whether there is a social evil of moneylending in this country.

The reason I do this is because if that is the term of reference we should give this judicial committee they will look at the authenticity of the programme, and I think it is fair they should, because that has been part of the conflict, but they will do so in the light of and in the context of the existence or non-existence of the social evil of moneylending. The inquiry will proceed on two grounds, on the ground, first of all, whether a fair standard of journalism was maintained by this team in their probe into what is described as a possible social evil in Dublin. That will be the standard of care required of them.

Secondly, the judicial inquiry can from the beginning take into account what I think is one of the innate factors in this, that the programme must be judged in the context straight away of whether or not there was adequate information for it or whether it was a fabrication, a fiction and a valueless programme. Under the existing terms of reference I submit this may not happen. What will happen is that the narrow procedural terms in section 1 which are properly the business of the independent authority, for which they ought to be accountable, will be inquired into by a sworn inquiry and then they will inquire into the substantive issue of whether there was adequate information about illegal moneylending in the country.

This is the position which gives me grave concern as a lawyer for two reasons. The first reason is because we are setting a precedent for possible future inquiries of this nature into isolated television programmes and anybody who has read the account of the debate in the Dáil yesterday will know, and I reiterate here, that there is a possibility under the Broadcasting Act for the Minister for Posts and Telegraphs to make known in writing his disapproval of a programme [628] and there are adequate checks and adequate controls within that Act. If we set this dangerous precedent of allowing a television programme to be examined in its procedural aspects I do not think any journalistic programme compiled with a shortage of time, with the type of materials and the type of projection they wish to put forward, can stand up to a cold, judicial inquiry at a judicial standard. I do not think that is possible. That is not the standard which ought to be required. That is one of the reasons why as a lawyer I cannot accept the terms of reference of this motion, although I accept the purpose behind the motion.

The second reason is that even if it is unlikely that a problem like this would arise again, that there would be another conflict of this nature and the necessity for a judicial inquiry, I hope this will be rare, a far greater evil is contained in giving the terms of reference we seem prepared to give by this motion, unless this amendment is accepted, because of the shadow this will cast over any independent investigation by a team in the future in this country. I do not even mean just the “7 Days” programme in question but that this type of programme will be done under the shadow of the threat of the possibility that we, the Parliament of the country, will set up a judicial inquiry into the procedural aspects of this particular isolated programme for which in fact the true blame or the true responsibility lies with the independent television authority for that particular item.

I do not want to use emotive terms like witch hunting, but we are using too broad terms here and I can see a great danger for the future of television in this country. As a young person going to continue to live here, I see it as a possible danger to freedom of expression in this country. I have a number of contemporaries from college days who have taken jobs—I think a number of graduates did go into television—in Radio/Telefís Éireann, and I cannot see them continuing to work there under the threat of this type of background censorship, this shadow of a threat of a judicial inquiry into the actual mechanisms of an individual [629] programme. It is this point that is very important. It is not a political point, it is a legal point on the terms of reference that we are prepared to give to this inquiry.

As regards the wording of the amendment I have submitted, in the light of the fact that I understand that Senator Ó Maoláin is going to move the amendment that was accepted last night, I would be prepared to delete the words “as journalism” in the sixth line of the amendment. In fact these would not be necessary if that amendment were carried.

I still say—to sum up again as I do not want to go on too long—that the point I am making is that we are setting legal terms of reference for a judicial inquiry and that the substantial terms of reference (1) and (2) will be taken in that order, and that the first term of reference is one that I would not lay down for a judicial inquiry in this country, because if we do we are then negating one of the basic principles of freedom of expression and by-passing the independent television authority set up to deal with domestic matters such as the way in which a particular programme was organised, produced, planned, et cetera.

Therefore, I think that the amendment which I have put forward will allow the judicial inquiry to focus on what I think are the proper terms of reference without interfering in any way with the subject of this motion to set up an inquiry. The inquiry will look into basic fundamentals. It will look into the authenticity of the recent television programme. Authenticity is a very wide word. The judges will look at this in sufficient depth. They will have the right to films, tapes, transcripts, et cetera, and to take sworn evidence. Secondly, they will look in particular at the adequacy of the information on which this programme was based. In other words, they will take into account straight away, as part of the terms of reference, the vital element which cannot be ruled out of this inquiry as to whether there was a basis for it, whether there was a social evil of illegal moneylending on a fairly wide scale in the city and county of Dublin. [630] Therefore I beg leave to propose this amendment.

Mr. Horgan: I will formally second the amendment at this stage and reserve my right to speak on it.

Mr. O'Higgins: I was one of those who before the announcement was made of the proposal to set up a tribunal urged that there should be an inquiry into this matter, and I did so on the ground that it seemed to me that the stands taken by the Government as represented by statements of the Minister for Justice, the Taoiseach and some other Ministers, on the one hand, and the statement from the Telefís Éireann Authority on the other, simply could not be reconciled, and that the gulf between the two points of view was far too wide for anyone to attempt to reconcile. For that reason I am glad that it has been decided that this matter should be the subject of an inquiry. I think that there might be legitimate differences of opinion as to the particular type of inquiry which would be most suited to deal with this particular problem.

While I was in favour, and still am in favour, of the idea of an inquiry, so far as I am concerned I regard the terms of reference suggested as being quite unacceptable. Senator Bourke has moved an amendment and she has, as she made it quite clear herself, addressed herself to this problem as an independent Member of this House, as a lawyer and not as a politician. I must say that the case which she made for the amendment appeals to me very strongly. I think she made a very strong case as to why the terms of reference as proposed by the Government should be regarded as not being acceptable. I agree with the reasons which she gave, some of which I had intended to refer to and will refer to later, but I think that this matter must be considered not merely from the standpoint of a lawyer but it must be considered from the general point of view of what we want to achieve by the setting up of this tribunal.

As I say, I regard the terms of reference as being unacceptable. I make no apology for saying this, that it seems to me that the terms of reference [631] as proposed put one side of the two sides involved in this argument in the dark from the very beginning. I think that Senator Bourke is entirely correct in stressing the point that when a judicial inquiry of this nature is established the judges who form the inquiry will look very carefully at the terms of reference that they are given. That is their job, and Senator Bourke certainly, I am quite sure, did not intend to be in any way critical of the judges—we do not know who they will be—who will form this inquiry, when she referred to a judicial inquiry looking at the terms of inquiry in a narrow legalistic way.

I believe that that is what they will do, and I do not intend any criticism when I say that. That is their job. If we give terms of reference from this Parliament to the judicial tribunal set up, the first thing they must do is to look very carefully at every word in every paragraph of the terms of reference we give to them. As Senator Bourke has pointed out, the first paragraph in this proposal from the Government is concerned with matters which are largely irrelevant to the main issue in dispute as between the Government on the one hand and the RTE Authority on the other.

Mr. B. Lenihan: Highly relevant in my view.

Mr. O'Higgins: I am giving my view and the Minister will have to take it and listen to it, whether he accepts it or not. To my mind, the subject matter of the first paragraph as proposed by the Government is entirely irrelevant to the main issue of the dispute. Surely the question of the authenticity of this programme is the main point of dispute between the Government and the television authority. The tribunal should be concerned to inquire into that. They should be put into a position where they could examine and report broadly on whether the Government or the television authority are right.

Under the proposed terms of reference, there is no doubt that the searchlight is being put on the television authority. They will be put under the microscope, but there is no suggestion [632] of an inquiry into the statements made by the various Government Ministers and by the Taoiseach himself. If there is any technical, procedural or Constitutional difficulty about having the statements of Members of Parliament reviewed by an outside body, such difficulty could be overcome. Perhaps such difficulties exist. I suggest that if they do exist the way to deal with them is to set up a Select Committee of the Houses of the Oireachtas to inquire into the statements, allegations or assertions made by the Ministers for Justice, Agriculture and Local Government and by the Taoiseach in reference to this particular matter.

The terms of reference will not permit the tribunal to consider the statements made on behalf of the Government. These statements brought about this dispute between the Government and the television authority. I am not suggesting that the Government, or whoever drafted these proposals, were being unfair deliberately, but the final result is that a situation has emerged where certain statements were made on behalf of the Government and other statements were made on behalf of the television authority. One aspect of that situation will be inquired into, but only one. Even though it may be a political point, it is relevant to point out that the question of the setting up of a tribunal was considered by the Government—and certainly by the Minister for Justice, judging by his remarks— if people continued to “defend the indefensible”, as the Minister for Justice said.

It appears to me from the way in which the terms of reference are worded that they were drawn up with the idea in mind that the indefensible was being defended and that this tribunal would show that that would not be allowed by the Government. Under the proposals in this notice of motion the minds of the members of the tribunal are to be directed to the planning, preparation, arrangement, production and presentation of this particular programme.

I believe those matters are totally irrelevant, but the Minister for Transport and Power does not accept that Surely he will accept the word of the Taoiseach himself because when the [633] Taoiseach intervened in the discussion in the Dáil he said that he did not see the programme but he gathered “that this programme reached a very high technical level and that it was much praised for that”. This is a programme which, according to the belief of the Taoiseach himself, reached a very high technical level. We will waste the time of three highly paid judges to inquire into the planning, preparation, arrangement, production and presentation of this programme.

Mr. B. Lenihan: The Senator is being ingenuous.

Mr. O'Higgins: That may be the Minister's view. I am concerned about the taxpayers' money. I am concerned with the precise wording of the terms of reference which will be given to the tribunal. Two suggestions have been made about these matters. It was not sufficient under the terms of reference for the tribunal to have a general look at what took place in the general arrangement or planning of the programme. They must look at it closely under each of these various headings of planning, preparation, arrangement, production and presentation of the programme.

As Senator Bourke pointed out, these are matters which are the responsibility of the television authority. They are not matters which are the direct responsibility of any of the employees of that authority concerned with the particular production into which the tribunal is inquiring. They are certainly not matters which relate to the main point at issue. The main point at issue is the question of the authenticity of the programme.

A number of statements were made in the course of discussions which took place in the Dáil before the motion to set up the tribunal was brought in. The tribunal should be entitled and encouraged to inquire into those various statements. The essential thing is—and this is where the real cleavage between the Government and the authority occurred— whether the programme was authentic. The terms of reference as proposed in the notice of motion give adequate authority to the tribunal to inquire into that question.

[634] Senator Bourke makes it quite clear that this is one of the principal matters that should be inquired into. There will be general agreement that that is the case. The tribunal should also be entitled to inquire into whether the characters and scenes portrayed in this particular programme were fictitious, because the Taoiseach, referring to this matter in the Dáil, said that all the controversy could have been avoided if RTE had said at the outset of the programme that the characters and scenes to be portrayed were fictitious. To put it at its mildest, there is a suggestion—I would imagine it is not unfair to describe it as an allegation—that the characters and scenes were, in fact, fictitious. That is a charge made against the programme. Surely the tribunal should be encouraged to state their views with regard to the statement of the Taoiseach.

The minds of the tribunal should be directed to whether those appearing on the programme were told what to say when they appeared on the programme. I read very carefully more than once the references made by the Minister for Justice to this particular matter. While it seemed to me that the references made by the Minister for Justice implied that the participants in the programme said what they said because they were paid for saying it, I could see from the way in which the particular references were phrased by the Minister for Justice that that interpretation might be incorrect. In his Parliamentary reply on this matter, the Minister for Justice referred to statements given to the gardaí. He said statements given to the gardaí set out details of the way the people concerned were approached and how they were told they would be paid to say these things.

An Leas-Chathaoirleach: It would assist the House if the Senator would give the reference.

Mr. O'Higgins: The reason I avoided doing this was that I was not sure if it was proper to refer by reference to the proceedings of the other House. At column 1265 of the Official Report dated 19th November, 1969, it is stated:

[635] Statements given to the gardaí set out details of the way the people concerned were approached and of how they were told they would be paid to say these things.

When I read that I took it that it was a suggestion that there was a definite implication in that that these people were being paid to say what those in charge of the programme wanted them to say, but I could see it was possible that the other interpretation was there; that all the Minister intended to say was that these people were told if they appeared on the programme and told their stories without trying to influence them they would be paid for doing that. This was all right until taken in the context of an interruption by the Minister for Agriculture, recorded at column 1267 of the Official Report dated 19th November, 1969, when a Deputy asked the following question:

Is the Minister not aware that it is perfectly normal journalistic practice in any medium—television, press or other—to pay people for information which one gets from them or services they render?

Mr. Blaney: One does not tell them what to say.

Is it not clear that that statement taken in conjunction with the statement of the Minister for Justice of how they were told they would be paid to say these things that the interpretation which the Minister for Agriculture put on it was that they were being told what to say and were paid for saying it. If we look at column 1268 of the same Dáil debate we see a reference by the Minister for Justice—I think it is only fair to him to read it out in its entirety:

Mr. Moran: I have stated that these alleged moneylenders and so on who were produced for the public edification on this programme have stated that they were paid sums of up to £20 and also given drink for their performance.

When this matter was raised further in the Dáil on 26th November, 1969, the Minister for Local Government [636] entered into the fray. A Question was put down by a Deputy in which he asked if the Minister would withdraw the original character imputations which he made without qualification in respect of certain of the staff in RTE—in particular when he alleged that certain of the RTE staff had bribed people with money and free booze— and the Minister for Local Government stepped in and said “It is established that they did”. Therefore, we have support for the theory that the charge being made is that these statements were obtained by free booze and that people were told what to say. As far as I am concerned I think the tribunal should be entitled to establish the basis of these charges and to investigate them fully. If there is to be a tribunal people are entitled to know what inquiries were made by the Taoiseach, by the Minister for Local Government, by the Minister for Agriculture, in addition to the Minister for Justice, to support these statements. I do not care whether they are called statements or charges—they are on the record.

Mr. B. Lenihan: That is rather peripheral.

Mr. O'Higgins: That may be the view of a man who was once Minister for Justice, but he should know as I know, as Senator Miss Bourke knows, and as certainly any lawyer in this House knows, that unless the tribunal are given authority under the terms of reference to inquire into these matters they will not do so because they have not the authority.

Mr. Honan: By the time the inquiry is finished here there will be nothing to inquire into.

Mr. O'Higgins: That might save the State some money if that were so but what we are concerned with here is a cleavage that has arisen between the Government and RTE.

Mr. Gallanagh: Between the gardaí and RTE.

Professor Kelly: The gardaí never said a word.

Mr. O'Higgins: I do not think it is right that the tribunal should be asked [637] to inquire into statements taken by the gardaí; the gardaí should not be put in the dock any more than anyone else.

Tomás Ó Maoláin: Any more than the Government.

Mr. O'Higgins: I shall deal with this in my own way. The people whose activities and whose statements should be inquired into are the active participants in this dispute—RTE on the one hand and the Government on the other.

Tomás Ó Maoláin: They are not the active participants.

An Cathaoirleach: Senators will be given an opportunity of speaking in due course.

Mr. O'Higgins: I have no objection to the tribunal having the authority to quiz the gardaí as regards the statements they took and what steps they took but it is entirely wrong that the onus of proof in this matter, and particularly in the first paragraph of the terms of reference, should be thrown entirely on the RTE or those concerned with the preparation of the programme. We should all recognise that there are certain standards which journalists should adhere to, and I am convinced that journalists in this country do so adhere. They have certain definite obligations to the public but they have certain rights as well and we should be careful, particularly in the context of ensuring freedom of speech and freedom of expression, that the rights of journalists, whether on TV or on the papers, should be recognised.

Here in the opening paragraph we have a suggestion in the terms of reference that the onus of proof should be put on those concerned with the particular programme in RTE. Notwithstanding the later amendment which will be moved by Senator Ó Maoláin, this is not merely a question of the onus of proof in the context of the authenticity of journalistic standards. It will be a question of the onus of proof in a court of law before a judicial tribunal: it will be a question of the legal onus of proof and that being done in the knowledge that [638] the Minister for Justice at the outset of his first reply in the Dáil when dealing with this matter referred to the difficulty of obtaining evidence and at columns 1263 to 1264 of the Dáil debates of the 19th November last when this matter was first raised the Minister for Justice said:

It is, of course, well known that some unlicensed moneylending goes on, not only in Dublin but in other urban areas. It is also well known to charitable organisations and social workers as well as to the Garda Síochána that it is invariably difficult and usually almost impossible to get evidence to support a prosecution.

He then dealt with the difficulties but RTE will be put in the dock and they will be told under these terms of reference to establish by discharging proof before a judicial tribunal that the comments and implications of the programme as to the number of unlicensed moneylenders operating in the city and county of Dublin were authentic.

They will be asked to prove that by proof that would be acceptable to judges sitting on a judicial tribunal notwithstanding the recorded words of the Minister that it is invariably difficult and usually almost impossible to get evidence to support a prosecution. I am not happy about the terms of reference as proposed. The amendment proposed by Senator Bourke and seconded by Senator Horgan would improve the position somewhat and if the Minister can indicate that that amendment will be acceptable to him and to the Government I would consider that the Seanad had achieved something worthwhile.

However, I still would not be entirely happy about the terms of reference but if the Minister could give me any indication that the amendment might be accepted, I would be prepared to accept the position. We must be very careful in framing the terms of reference. We must recognise—Senator Nash will bear me out on this— that what will concern the tribunal will be the precise wording set out in the terms of reference and that there is no point in any of us saying that maybe this might be brought in under that or [639] anything else. That will not happen. The judges sitting on the tribunal will analyse every word set out in the terms of reference. That is their job and that is what they will be bound by. When considering this motion we must consider the whole picture that is known —the different standpoints and the different views expressed by the Government on the one hand and by RTE on the other whether these terms of reference will enable the tribunal to decide adequately on the fundamental question involved. I believe they will do that but it is a question of whether the programme was authentic but also as to whether the statements made in relation to the programme by the Taoiseach and by his colleagues in the Cabinet based on inquiries made and on the information available to them were sufficient to warrant these statements being made. Those matters should be inquired into also. The scale should be evenly balanced between the Government on the one hand and RTE on the other.

Mr. Nash: I agree with what Senator O'Higgins has said in that a tribunal cannot go outside the terms of reference and that is why if I were the young man who produced the programme I would be very upset if the terms of reference were not as wide as they are here. Senator O'Higgins has asked what the inquiry proposes to achieve. What it proposes to achieve is whether the programme was substantially and genuinely truthful in what it depicted, and (6) whether it depicted an accurate state of the affairs in this city.

We are all aware that there are some leeches—vampires—who live on the misfortune of their neighbours. As the Garda authorities have said, there may be ten or 12 unlicensed moneylenders in Dublin but RTE have said that, perhaps, there are five or six hundred. It is a matter of the utmost importance when we have two Government bodies, RTE on the one side and the Garda authorities on the other side giving us such a completely different account that there should be the fullest possible investigation as to which is correct, as to whether either is correct or as to [640] whether the truth lies somewhere between the two. These are matters of the utmost importance.

If the investigation be limited to the narrow word “authenticity”, the producer of this programme may find himself in a very embarrassing position. I would find no fault whatever with the truthfulness of this programme even if actors were used instead of moneylenders, even if actors were used instead of borrowers, if the programme described things as they really are. Likewise, I would find no fault with the producer of this programme if he went to an unfortunate woman who owed £5 to one of those unlicensed moneylenders, who feared to tell her story while she was still in the hands of this vampire and who could tell her story only if she were free of his clutches and got the £5 to pay him off. I would find no fault with the producer of this programme if, in order to get somebody to tell his story, he had to meet him on a social occasion and stand him a few drinks. That does not in any way detract from the veracity of the programme if the programme be really truthful. Because the judicial tribunal must have the widest powers to investigate, I would feel that the delimiting of the terms of inquiry would be most unfair to RTV on the one hand or to the Garda Síochana on the other hand.

Mr. O'Higgins: The Senator will not mind if I tell him it is not RTV, it is RTE.

Mr. Nash: Thank you. It seems to me from the speeches of Senator Bourke and Senator O'Higgins that they are starting off on the basis that there is something understand, something wrong with the production of this programme. I do not suggest that for one moment. The Government do not suggest it for one moment. However, it is a matter of urgent public importance that it should be discovered whether this is the state of affairs in our capital city. Are there up to 600 unlicensed moneylenders bleeding the unfortunate poor of this city? Have they got strong-arm men who go so far as to break the limbs and bones of [641] people who refuse to pay, to set fire to their motor cars, perhaps to burn their houses if the occasion arose? Surely that is a matter of the utmost public importance?

It is also a matter of the utmost public importance that if this programme is not true, if it is unfounded, if instead of having 500 or 600 moneylenders there are what one may expect anywhere, ten, 12 or 20 people without consciences, we should not endeavour to show that our body politic is dead and that our social conscience is dead and that the whole social community is being preyed upon by these leeches. Surely that too is a matter of the utmost public importance?

I feel that this word “authenticity” is far too narrow. The tribunal might find the programme was not within the strict definition of “authentic” simply because one person in the programme was an actor taking the place of a moneylender who could not be found or because one person in the programme was taking the place of some unfortunate woman who got herself into the hands of these people if the terms of reference were not wide.

Surely it is a matter of the utmost public importance if unfortunate women have to hand over their children's allowance books and that these are held and not parted with, or if an unfortunate worker has to hand over his trade union card? This is an imputation not only on the Garda Síochána but on the trade unions. I doubt if any self-respecting trade union would permit a thing like this to happen. Surely a trade unionist who was caught in the clutches of such a vicious system could go and confidentially report to the secretary of his trade union what had happened to him and with the co-operation of the members help to put a stop to it?

I do not know which story is true. I do not know whether the story of the Garda Síochána is true nor do I know whether the story of RTE is true but certainly this should be established because one can cry “Wolf, Wolf” too often until no one pays heed to it and some day when there is something really radically wrong that everyone fears to discuss when the truth is told it will not be believed. [642] If this presentation is correct and what RTE say is correct I would, as the producer of this programme, welcome this tribunal. I would welcome this examination in the broadest possible terms. I would welcome my right to produce before this tribunal, if I so desired, how I planned and prepared this programme, how I arranged it, how I produced it, how I presented it.

Mr. O'Higgins: If you so desired.

Mr. Nash: If I was satisfied that that programme was correct and represented the true state of affairs and if I am confined to “authenticity” only as a term of reference I cannot do any of these things. This is a matter which has been stressed by Senator O'Higgins. It has been mentioned by Senator Bourke I agree with them and it is because the word “authenticity” would be so narrow that these other words are mentioned in paragraph 1. Both Senator O'Higgins and Senator Bourke know, as lawyers, that if one goes before any court on any simple issue, for instance if one was negligent in the driving of one's car and thereby caused injury to somebody in the statement of claim one cannot get off with just two lines. The statement of claim will probably run to two or three pages, and the defence likewise, because the court cannot consider any matter that is not referred to and covered in some way either by the statement of claim or by the defence.

If the terms of reference in this are made as narrow as is suggested here it would be grossly unfair to RTE. I see no reason why this defeatist attitude should be adopted. I see no reason why it should be presupposed here in advance that RTE are wrong. They have stated they are correct. If so, we will welcome their proving it. If they are correct there is something radically wrong elsewhere, in some other Government Department, and we will all welcome setting that right. There is no use papering over cracks or sweeping the dust under the carpet. Let it come out into the open. If, on the other hand, that is not correct, let us have the courage to say: “This was a wonderful presentation. It was very emotive but it drew our attention to something which at the moment is [643] small but might grow”. That is the worst that can happen.

Senator Bourke's suggestion that, because this is put as paragraph 1, it therefore will take precedence over anything else amazes me. One might as well suggest that what is put down in paragraph 1 of the statement of claim or in paragraph 1 of a defence in court takes priority over paragraphs 2, 3, 4 or 5. These are all terms of reference. All the paragraphs are matters within whose limits the tribunal will consider before they start. These are the matters which either the Garda Siochána on the one hand or RTE on the other can produce evidence to show which side is correct.

We come to paragraph 2 of the terms of reference, the authenticity of the programme and, in particular, the adequacy of the information on which the programme was based. Perhaps a young man, through enthusiasm or otherwise, jumped to conclusions. Perhaps through inexperience, and through a high feeling of purpose he let his emotions run away with himself. If so, no grave harm has been done and no particular blemish would be on his character because he permitted himself to fall into such a trap. Everybody learns from experience and it is only through the enthusiasm, and sometimes the wild enthusiasm, of the young that any country can hope to progress.

Paragraph 2 of the terms of reference—whether or not the statements, comments and implications of the programme as to the number of unlicensed moneylenders operating in the city and county of Dublin and the scope of their operations—is correct. Surely that is a matter of the utmost fundamental importance. It was suggested in the course of the programme that the law as it stands at the moment was not sufficient to enable the Garda Síochána to do their job. Surely we want to know that and if it is not sufficient then each and every one of us in both Houses of Parliament here are failing in our duty if we do not give the Garda Síochána the requisite powers and if we do not put a stop to this abuse by moneylenders if it does exist.

[644] An inquiry into the scope of the operations of those people and the use of violence or threats of violence, to secure repayments of moneys illegally lent, whether that mounts to a correct and fair representation of the facts is a further term of reference. Surely if this sort of violence exists in this city of ours we are getting well nigh to what is happening in Chicago and in the City of New York where you have protection gangs. Is it possible? I do not know, nobody knows and nobody will know until this inquiry is over but it is nearly time we knew. If it does not exist it is also a matter of the utmost importance that radio programmes or television programmes should not be such as to show us as a sick society.

Very many people will find fault with us when we do not deserve it. Surely we should not show that we ourselves in our body politics have a rampant disease of which we should be ashamed and with which we should be disgusted if that be not the case. That too is a matter of the utmost importance. Therefore I feel that paragraph 2 is essential in those terms of reference.

The third paragraph refers to “the inquiries on behalf of Radio Telefís Éireann and the films, tapes, statements, scripts, records, and notes in their possession”. No tribunal could hope to come to an accurate decision on those matters without knowing also what were the inquiries made on behalf of Radio Telefís Éireann, without having access to the films, tapes, statements, scripts, records and notes. Every lawyer knows that truth is a jewel of many facets and that any story can be distorted and twisted. I am not saying that was done in this case. I am not prejudging the case. I am not suggesting, as has been done here, that RTE were wrong or that their statements were wrong.

The fourth paragraph of the terms of reference states:

The inquiries on behalf of the Garda Síochána, and the statements, taken by the Garda Síochána, which relate to the programme.

Surely also it is a matter of the utmost importance as to whether the [645] Garda Síochána before they inform the Minister for Justice of their findings have made adequate inquiries, whether they had right down from the Chief Superintendent to the garda below him got files on those matters, whether their files were reliable, whether they were lazy about the matter, whether the statements they took were again statements of people who were afraid to tell the truth. I cannot picture an illegal moneylender going to the Garda Síochána and making a statement: “Mea culpa I have been wrong but please do not prosecute me”.

I feel if justice is to be done to everybody in this case whether to RTE, whether to the producer of the programme, whose expertise I admire, whose courage I admire if his story be true, if justice is to be done to him and to them and if justice also is to be done to the Garda Síochána I feel the terms of reference should be not less wide than they are here set out and to have them contracted in any manner would inevitably end in injustice being done to one or to the other to the public detriment.

Professor Kelly: I agree with a good deal of the sentiments which underlay the words of Senator Nash, and like him I have formed no view of my own whatever on the outcome of this inquiry. I realise it would not be proper for me to express it if I had one, but I have got an open mind about it. On the other hand, while I accept a great number of the criteria which he sets up as being proper ones in an inquiry of this kind, I am unhappy with the way these terms of reference are drawn.

There are a couple of things which are conspicuous in this regard. This row is not a row between Radio Telefís Éireann and the Garda Síochána. This row arose because of something which happened in Dáil Éireann. It arose through a long, detailed and carefully prepared reply by the Minister for Justice to a question asked by Deputy Corish. That is the reason why we are debating this motion this evening. We are not debating anything which has arisen through anything said by the gardaí. If you like, the information coming from the gardaí underlay what the Minister for Justice, and subsequently [646] the Taoiseach, may have said, but in fact the public look at this whole episode as the “7 Days” row. If you were to ask the public who were the partisans or the protagonists in the “7 Days” row they would say, and they would be right, Radio Telefís Éireann on the one hand, the Taoiseach and the Minister for Justice on the other.

I would like to deal with this briefly and uncontentiously, as far as I can. It seems to me, and it has always seemed to me, even before I became active in politics, that the attitude of the Government towards Radio Telefís Éireann was over-cautious, to put it at its best. It would be unfair of me to make any kind of wild allegations about inroads made on the right of free speech by the Government. The Government have not been guilty of such a thing in a general way. They have very often reacted truculently and in an unseemly manner to criticism both in and outside the Houses of the Oireachtas but I admit that that stops a good distance short of trying to suppress free speech.

I want to make it quite clear that my remarks are not intended to underpin any such allegation. The Government's attitude towards the Telefís Éireann Authority became very plain towards the end of 1966 during the row which was caused by the juxtaposition of a statement between the then Minister for Agriculture with a reply by the NFA. In the Dáil in reply to a Question on this matter, the then Taoiseach, Deputy Seán Lemass, said, as reported in Volume 224 at column 1045:

Radio Telefís Éireann was set up by legislation as an instrument of public policy and as such is responsible to the Government. The Government have overall responsibility for its conduct and especially the obligation to ensure that its programmes do not offend against the public interest or conflict with national policy as defined in legislation.

I have to observe, as I have done before in print in this regard, that the wording of the Act passed through the Dáil and Seanad which set up the [647] Broadcasting Authority does not contain any of these propositions, nor does it contain any material from which they can be derived. Radio Telefís Éireann is not an instrument of public policy. You can describe it whatever way you like, but it is not anybody's instrument. It may not be so defined or so described. While I concede that the Government must have some power to make sure that it shall not put out things which are seditious or liable to cause disorder or to undermine public morals, it is entirely wrong to regard Radio Telefís Éireann as an instrument of public policy or as anybody's instrument.

While I do not want to make more capital out of those words of Deputy Lemass than the words offer, it seems to me that they are a reflection of an attitude towards the Broadcasting Authority which has informed this Government since the authority was created. The Government's reaction to everything the authority does seems to me to have been extremely sensitive— too sensitive. We all know—there is no point in mincing words—of the terrific power of television. I can well sympathise with the Government which feel that they are in danger of incurring unpopularity from public opinion because of a series of political programmes. I am not asking the Government to go to the lengths to which the Tory Government in England went before 1964 when they allowed themselves to be pilloried by satirical programmes week in week out and which in the opinion of many observers in England largely contributed to their defeat. The Conservative Government showed in those days heroic charity, to put it at the lowest.

Tomás Ó Maoláin: They were damn fools.

Professor Kelly: I am not expecting a Fianna Fáil Government to go to those extremes. At the same time, I would say that this Government have shown undue sensitivity to television programmes, and this episode is only one such instance. I will not worry the House over other instances, but this is of importance as the background when we come to look at these terms [648] of reference, and find that the people put in the dock, so to speak, are only one protagonist, namely, the people who made the programme.

I have formed no opinion as to whether the programme is genuine or bogus, but I do observe that the only people upon whom judgment of genuineness or bogusness can be passed in relation to this are the people who made the programme. The other side, who are the Taoiseach and the Minister for Justice who spoke in unfriendly terms about the television programme —and other Members of the Government did likewise—are not placed in the dock and the judicial tribunal are not being asked to express any view on the propriety or seemliness of their reaction. That is something that I believe to be wrong.

I can entirely understand that when these terms of reference were being drafted care was taken to avoid their being in the dock also. This is natural, but it is equally natural that the Opposition should regard it as unsatisfactory. If the decision of this tribunal goes against Telefís Éireann the people who will get the black eye, so to speak, are the people who made this programme. If the decision goes in favour of Telefís Éireann, undoubtedly there will be an implicit condemnation of the Government but what we want is an explicit condemnation of the reaction which they produced to this television feature.

Let me say, in case it should be afterwards said that it is no part of the judicial tribunal's business to pass any comment on the Government, that although it is right that the Constitution protects with absolute privilege from civil or criminal proceedings anything said in either House, that does not amount to saying that words said in either House are immune from comment at the hands of the tribunal. It does mean that the only thing from which Deputies and Senators are protected is individual proceedings in the courts, civil and criminal. There is no protection from comment, and we all know that they are commented on very much in newspapers and by individuals. They are equally not protected from comment by a judicial tribunal. [649] I hope that the Government were not under the impression that it would have been for some constitutional reason improper to subject their own behaviour to judicial examination.

The only other thing I want to say is a couple of words in relation to the amendment which was put down yesterday by Deputy Cosgrave and which the Government were good enough to accept in regard to the standard of journalistic care. I have only been able to see the newspaper reports of the debate. I did not hear the debate, and it may be that the newspaper report is inadequate, but to make it clear I should like to emphasise that the purpose of the amendment was to make sure that if some trivial inaccuracy were found in fact underlying the making of that programme that inaccuracy would not be sufficient to condemn out of hand those who made it.

Senator Nash spoke of what he had in mind as a gross inaccuracy, that instead perhaps of 500 unlicensed moneylenders we should discover that there were ten, 15 or 20. That would be a gross enough discrepancy to warrant an unfavourable conclusion being drawn in regard to this programme, but suppose that the discrepancy were nothing like of that order—suppose it turned out that there were perhaps 350 unlicensed—of course that would reflect inaccuracy in the programme but it does not seem to be an inaccuracy substantial enough to warrant the programme's good faith being impugned or the impugning of the journalistic care which went into its making. That is the reason for that amendment, and I hope that it is understood by the Government and the spirit behind it accepted.

Mr. Keery: I should like to welcome the setting up of this tribunal. I think that it is extremely important that we should have somebody to investigate the authenticity of the programme in question and to adjudicate between the clash of opinion on the number of unlicensed moneylenders in Dublin—between the Garda authorities and the “7 Days” investigators supported by the Radio Telefís Éireann Authority.

[650] We have just had in Senator Kelly's contribution one demonstration of why it is so important to have this tribunal. He has gone back to the old allegation about the situation arising when there was a juxtaposition of an announcement by the Minister for Agriculture and a press release from the National Farmers Association on a Radio Telefís Éireann news bulletin. This allegation will be all the time hanging in the air because there was no investigation at the time and we do not know what exactly happened. There is a very distinct possibility that that dispute arose quite simply because of some administrative inefficiency or professional inexperience in the news room in Radio Telefís Éireann. I do not know the facts, but it is a possibility. But as long as it is still a matter which is uninvestigated allegations of ministerial interference can remain. Happily this dispute regarding the “7 Days” programme on unlicensed moneylending will not be left hanging in the air because on this matter we will have the report of the tribunal.

I would like to make it quite clear that I do not see the setting up of this tribunal as in any way an attack on the freedom of the Press or as a witch-hunt on any individuals in Radio Telefís Éireann. That was a point of view expressed during the Dáil debate on the matter and repeated here, I think, by Senator O'Higgins.

If I could refer to my own experience as a young journalist in the North of England, all the time the first thing that I was aware of and that in my training the first thing that was made clear to me by my editor was that you always had to be prepared for the possibility that your words might land you in court. It seems to me that any journalist conscious of his position as a journalist and of his responsibility is always aware that at some stage some part of his work may bring him before a court or an inquiry of some kind or other.

I do not see that the setting-up of this tribunal is any new form of threat to a professional journalist. Neither do I feel it is witch-hunt of any kind. The people involved in the “7 Days” programme [651] have been supported by their employers, the RTE Authority. Employees and employer stand firm on this issue. In these circumstances it is not possible to say that there is any threat to the position of the members of the “7 Days” team.

This issue has become a big one. There was a long debate in the Dáil last night and some emotional words have been used here. I should like to put the matter into perspective by quoting from a book which was referred to in the Dáil debate last night and has been constantly in the minds of people when discussing matters affecting RTE. It is the book Sit Down and Be Counted. At page 367 it reads:

It well may be that most Governments like most people overestimate or misunderstand the effects of this media on the public mind. Professional broadcasters enjoy no particular privilege in this matter. They are as likely to be wrong as anybody else.

I would suggest that Deputies and Senators are as likely to be wrong as anybody else. This matter has become something of a storm in a teacup.

Miss Bourke: Would the Senator like to continue reading from the top of the next paragraph?

Mr. Keery: It reads:

Having said these necessary things, one might reasonably ask whether an omnibus power of prohibition on broadcasting any particular matter or matters of a particular class is a wise and prudent power to give to a Minister of State in this vital area of public information.

This is quite another matter referring to the power in the Broadcasting Act. I am talking about the general context in which the issue before us arises. It arises in an area of fallible human behaviour. A discussion of the television and broadcasting Acts is another matter. We must look at this matter in perspective.

Senator Miss Bourke invited me to look ahead in the book. She also invited [652] us to look into the future and suggested that the setting up of this tribunal now might be a precedent for the future and that young graduates might not be prepared to work in a situation where they felt under the threat of a judicial tribunal.

I should now like to comment on this. This type of situation will arise again. One of the jobs of television is to do depth reporting on social problems. In these circumstances that sort of investigation is never popular and I support Senator Bourke in saying that disputed issues will arise.

They will arise in relation to RTE rather than to the newspapers because RTE has more money at its disposal than the newspapers. One of the problems of depth reporting on social problems is that one may face the possibility of a court case. Another possible expense is that a newspaper has to put a substantial number of its staff working on the particular issue for a period of time. Such staff would not then be available for routine work. A newspaper running on a tight economic budget might not be able to do this very frequently but RTE is in a position to do it, so the problems of hackles raised by this type of depth reporting is more likely to arise with the television authority.

Miss Bourke: What about the amendment?

Mr. Keery: I hope to deal specically with Senator Bourke's amendment when I have tried to put the matter into general perspective. In this situation, when disputes are likely to arise between RTE and officialdom, we must also remember that ordinary private individuals may be aggrieved by interference in their privacy or by comment to which they have little opportunity of replying. This arises in the newspaper world as well as in the area of television. Members of the public may feel they are being excluded from correspondence in a newspaper, for example.

If we want to look to the future, the Government should consider setting up a press council which could adjudicate on matters of this kind. We must have this investigation now [653] on this particular issue. Looking to the future, to overcome the sort of problem raised by Senator Miss Bourke I would suggest that a press council would provide an answer. As Senator Miss Bourke will know, a press council is part of the establishment in Britain. It is operated there with the full co-operation of the newspaper proprietors. We could possibly have a body of this kind here and the initiative for it could come from voluntary co-operation between RTE and the newspapers. As far as I know, the Dublin Branch of the NUJ favours setting up a press council. The Government could perhaps consider setting it up if voluntary effort is not forthcoming.

Miss Bourke: Are you unhappy with the terms of reference in this tribunal.

An Cathaoirleach: The Senator should address the Chair.

Mr. Keery: I see the setting up of this tribunal as a means of dealing with this specific matter immediately. I suggest that a press council could be a useful way of dealing with this sort of dispute in the future. In the Dáil some contributors brought the whole question of communications generally into the discussion and said that they thought this was a very important area to discuss. I am tempted to agree with this. A press council, apart from being there to look into matters of professional integrity and standards, could look into questions of advertising and newspaper financing and the financing of communications media generally. It could be an extremely valuable part of our democracy. I hope it will not become too much of a hobby-horse of mine—I raised this point on the Appropriation Bill debate. It might be a more economic way of dealing with situations like the one before us. I looked back to the last judicial tribunal set up in 1967 to report on the death of Liam O'Mahony. That tribunal cost £13,000. Such a figure might keep a press council going for a year.

When looking into the question of the last judicial tribunal, I was interested [654] at the way in which the members of that tribunal worked and the way in which they formulated their report. I am not a lawyer and I do not want to take on the many lawyers here, but it has been my experience that whenever anybody says “Speaking as a lawyer” or “Speaking as a doctor” or “Speaking as a specialist” one becomes very suspicious that they are trying to add a bit of infallibility to what they have to say.

My reading of the tribunal report on the death of Liam O'Mahony would lead me to doubt one of the main arguments Senator Miss Bourke used in proposing her amendment. This is the argument that the tribunal will stick closely to the wording of the terms of reference, parse and analyse them and hang on to every word. As I understand it, and I may be wrong, in the previous tribunal the questions which the members examined were questions which they raised at the end of the report. After they had heard the evidence and listened to counsel they then raised the questions they thought should be clarified and they concentrated on reporting on the facts of the situation—not on analysis of the words.

I may be stumbling around on a legal point here but I feel that the members of the tribunal may take a pretty open view of their work. In this case I maintain they are there to examine the facts and it seems to me from reading the previous tribunal report that this is quite different from the form of procedure in the normal court of law.

Miss Bourke: It is not the procedure but the terms of reference.

Mr. Keery: I hope I have made my point. I have listened to your point——

An Cathaoirleach: The Senator should address the Chair.

Mr. Keery: I am sorry but I am being drawn into this.

An Cathaoirleach: The Senator should not be drawn.

Mr. Keery: If I could move on to some of the other points raised by Senators Bourke and O'Higgins, in the course of their contributions, they [655] spoke about why this tribunal had been set up and they referred to the public disquiet. This was the actual phrase used by Deputy Cosgrave who was the first person to call for the setting up of this tribunal. At column 1858, volume 242, of the Official Report dated 26th November, 1969, Deputy Cosgrave called for the setting up, or at least asked the Minister for Justice “in order to allay public uneasiness he will consider holding a full public inquiry into the whole matter”.

I suggest that some of the public uneasiness has arisen because of the disclosures or allegations in the Dáil —whether true or false—by the Minister for Justice that some people who took part in the programme were paid substantial sums, given money and so on. It appears to me that some public unease has arisen because of these allegations. The allegations refer to the planning, preparation, arranging and production of the programme and the public unease must focus to some extent on these matters. There are obviously other matters on which public unease might be focussed but I do not feel that examination of this aspect of the allegations about the preparation of the programme can be avoided if the tribunal are to allay public unease.

I have listened to Senator Bourke with an open mind but this is one point on which I do not follow her reasoning. There is public disquiet here and it should be investigated. I approve of the setting up of this tribunal because once there is a point in dispute the matter must be resolved and not be allowed to hang on as yet another matter to be trotted out in some mysterious way at by-elections. My suggestion is that in dealing with these matters we could in future save ourselves trouble and expense by the establishment of a press council.

My concern was to raise some points regarding the amendment before us and to suggest there is genuine public unease about these allegations, about the giving of drink and payment to participants in the programme. There also is public unease about the preparation and arrangement of the programme, [656] and for that reason I support the terms of the motion.

Professor Jessop: I am very glad that this step has been taken to set up this tribunal in an attempt to try to get to the root of this rather unedifying affair. We should be grateful to Senator Bourke for putting forward her amendment in which she has raised a point which was not apparently noticed in the other House. Having said that, I do not know how much further I can go. The important thing is the authenticity of the programme and what we really want to know is the extent to which the material in that programme gave a true picture of the situation in the country. This is very much more important than the machinery of RTE for presenting the programme but I am not convinced that the planning and the arrangements used to acquire the information are entirely without interest.

Senator Keery mentioned one point, which I think is a material one, which leads me to think that this aspect of the matter should be inquired into also. If this tribunal inquire into the authenticity of the programme and find, for instance, that it was substantially wrong, then this situation may have arisen in either of two different ways. The machinery and the arrangements for getting the information and presenting it may have been quite satisfactory but the people who were questioned may have been telling lies.

On the other hand, there may have been some fault in this machinery and if we are to get to the root of the matter we must really inquire into both aspects. A fault in the machinery could easily arise through some defect which had crept in and to which RTE might be glad to have their attention drawn. On the other hand, if the arrangements were all right—and I think Senator Nash was quite correct in making this point—then surely nobody would be more glad to hear this than RTE, and it would reassure the public in general.

I am not greatly impressed by the argument that the precedent of a tribunal will so frighten RTE that we will never get a good production from [657] them again on a matter of public interest. We should not be afraid to look at RTE or any other State-sponsored body at any time that it appears to be desirable that we should do so.

I say this with full acknowledgment of the absolute need for freedom of the press, but RTE are in a rather special position. Their position is different from that of a newspaper in many respects. They are a State-sponsored body and have more money at their disposal. If a newspaper prints a story every other newspaper will be interested in seeking that story and immediately one is telephoned within minutes after the story appearing to know if any other angle could be given to the story. In so far as I know this does not happen and could not happen in RTE so that it is all the more necessary in an organisation such as that to have some sort of check from time to time if any question has been raised about the authenticity of the way in which it has been done so that the public may be reassured.

I do not think that there is any real danger of the tribunal becoming so bogged down in the first paragraph of the terms of reference that they will never get down to the main point at issue, which is the authenticity of the programme. Of course, I have no wide experience of legal tribunals and machinery involved in them but I have read a number of their reports and I have always been impressed by their pertinacity and by the way in which they go through everything they are asked to go through. I am quite certain that this tribunal, whatever its constitution, will go right through these four paragraphs. The only hope I have, and in this I agree with Senator Bourke, is that the procedure will not hold up the issue for too long.

Therefore, we should be grateful to Senator Bourke for having drawn our attention to these alternative terms of reference, but I am inclined to agree with Senator Keery that the motion as originally drawn is a reasonably satisfactory one. I should not like to make up my mind until I have heard the debate right through but at the moment this is my reaction.

[658] Incidentaly, I suppose it is quite clear that the tribunal will produce a report.

Mr. B. Lenihan: That is so.

Mr. E. Ryan: Senator Kelly in discussing this tribunal was somewhat superficial in stating that this arose out of what might be described as a row involving the Minister for Justice in the Dáil and the allegations he made against RTE. It must be remembered that from the time RTE was established there have been comments made about programmes produced by the station and on a number of occasions, if I recall rightly, RTE replied in various terms. The reason why it is considered necessary to set up a tribunal on this occasion is because Radio Telefís Éireann on the one hand and the Garda Síochána on the other dug in their heels and RTE said quite flatly that the programme was authentic and that the facts presented were factual while the police said just as positively that they had investigated the facts and they found these not to be as stated in the programme.

In a situation in which two public bodies make opposite statements about a matter of some public interest there is very little alternative for the Government but to set up some kind of tribunal and, while the Government had come to that decision themselves, the Opposition parties made it quite clear that in their opinion some kind of inquiry should be held. Allegations have been made time and again in the Dáil and in this House that such and such a programme presented by RTE fell short of accuracy in some respect.

Senator Kelly was treading on dangerous ground when he suggested that the Members of the Dáil and certain members of the Government should be also involved in this inquiry in the sense that they should be criticised in certain circumstances. While I agree with him that it would not be contrary to the Constitution, it would certainly be a rather dangerous precedent to suggest that comments by Members of the Oireachtas about RTE programmes or about any activity of public interest should be subjected to a public inquiry at this time.

[659] In his speech, Senator O'Higgins mentioned the onus of proof in relation to this inquiry and he dwelled at some length on the basis that the onus on RTE would be to prove that they were innocent and that the facts as stated were correct. That does not arise in this kind of inquiry. There is an onus of proof in certain proceedings in the courts where a person is accused, and in certain civil proceedings when a plaintiff alleges that he has been injured in some way, but these proceedings are quite different. This motion states that a tribunal will inquire into certain circumstances and there is no question of an onus of proof in this case. There is no question of an accused in this case and it would be quite out of place and would certainly be giving a very wrong picture to talk in terms of an onus of proof in this kind of tribunal or inquiry. Senator Bourke is concerned, as I understand it, that the inquiry should consider paragraph 1 of the terms of reference in isolation from the remainder of the terms of reference, and in particular from paragraph 2. If I thought that there was any validity in this suggestion, then I would [660] be very concerned also and would indeed have to reconsider whether this was the best way of approaching this inquiry.

An Cathaoirleach: If I may interrupt the Senator for a moment, it is now 10 o'clock. Does the House propose to adjourn?

Tomás Ó Maoláin: It seems unlikely that we could finish this tonight. Could we have an indication of how many other speakers there will be?

Professor Dooge: I think there will be general agreement with the view of the Leader of the House that to finish at a reasonable hour is out of the question.

Mr. Alexis FitzGerald: Good for a couple of hours.

An Cathaoirleach: Then I will ask Senator Ryan to move the adjournment.

Debate adjourned.

The Seanad adjourned at 10 p.m. until 10.30 a.m. on Thursday, 18th December, 1969.