Katherine Zappone (Independent)
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I move:

That Seanad Éireann –- notes the importance of having a public debate on the issues of free speech, homophobia and the public service role of the State broadcaster in such debates;
- further notes the necessity to explore these issues in the context of the forth coming referendum on marriage equality; andcalls on the Minister for Communications to debate these issues and to outline steps that he and the Government will take to ensure that the debate on marriage equality is conducted in a fair, open and impartial manner."

In the second place, which is perhaps what we are here for today, political leadership can ensure that debate on marriage equality is conducted in a fair, open and impartial manner. Impartial means without prejudice and that raises the bar very high. Rory O'Neill has done a great service to our country and wider global LGBT and other human rights movements when exercising his absolute and unrestricted right to hold opinions without interference. This is a right guaranteed under the International Covenant on Civil and Political Rights, which Ireland has committed itself to uphold. When he further exercised his human right to freedom of expression, which is also in the covenant, both on "The Saturday Night Show" and on the stage of the Abbey Theatre, his fundamental noble call to all of us was to eradicate our prejudices and change oppressive social, legal, religious and cultural systems.

Silencing voices against homophobia violates human rights, as barrister Brian Barrington pointed out. Why is this the case? It boils down to two words - human dignity. No doubt, all sides of this House agree with the first lines of the preamble of the Universal Declaration of Human Rights that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". The genuine experience of dignity is a quintessential ingredient for the empowerment of every human to lead the life they wish to choose. I paraphrase words of the great philosopher and economist Amartya Sen in his pioneering work Development as Freedom. Professor Sen uses this concept of all humans living the life they wish to choose as not only integral to eradicating world poverty but also as being core to the rights of minorities. A nation's development does not happen unless all of its people are free.

Martin Luther King Junior once said, "Whenever men and women straighten their backs up, they are going somewhere, because a man can't ride your back unless it is bent". As a young lesbian, I did not always carry a genuine experience of human dignity. Indeed, I often felt shame - shame for my feelings, shame for my actions and shame for who I was discovering myself to be. I wonder now whether that is a similar feeling of shame to those in this country who are out of work, those who have left school early, those in prison, those who beg on our streets or to our young lesbian, gay, bisexual and transgender people. What I do know is that shame does bend your back and that shame is never generated from within. It develops as others who are not like you or possess more resources or abilities than you suspect that your difference is deviant. It also develops when you run up against laws and systems fashioned by religious and State leaders that keep you outside the mainstream of social, cultural and economic opportunities and institutions or human worth or worthiness. Martha Nussbaum, who is one of the foremost philosopher-lawyers of our time, calls it the politics of disgust.

International human rights standards value free speech over being spoken of offensively. International human rights law sets a high bar before speech can be considered to be of such a degree of offensiveness that the State must prohibit it.

The more serious the issue in public debate, the higher the bar.

The UN Human Rights Committee states: "The mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties". When reflecting on or interpreting another part of the covenant on civil and political rights that asserts we must respect the reputations of others, the committee states that this requirement should never be invoked as justification for the muzzling of any advocacy of human rights.

I feel a chill, as many do. As such, we need a thaw. I welcome the steps that the Minister for Communications, Energy and Natural Resources outlined today and I look forward to what he will say in this debate. I will identify a number of additional measures that the Government could enact to ensure that our Republic genuinely values freedom and tolerance. This is not an exhaustive or sequential list.

RTE needs to appear before the communications committee to outline its approach to libel complaints. Subsequently, it should issue and disseminate guidelines regarding freedom of expression and defamation to everyone appearing on our national airwaves. This would be a prime way for the State broadcaster to fulfil its public service role. The process of devising such guidelines would undoubtedly go a long way towards assessing whether our laws can adequately protect the human right to free speech. It would also be useful for our politicians to engage with RTE on what is required in such guidelines. I agree with the Minister's statement in the Dáil, in that it is not desirable for the committee to become embroiled in the management of particular claims.

We also need a freedom of expression audit of the broadcasting and defamation Acts. I welcome the fact that the Minister will consider making amendments to the Broadcasting Act. This would be constructive. Like other commentators, I am uncertain as to whether amending section 39 of that Act, which refers to broadcasting something that can reasonably be regarded as causing offence, to instead refer to something that avoids causing undue offence will make much difference. The degree of harm that "undue" refers to is already part of the test of reasonableness in a later section of the Act. Freedom of expression is the norm and any restriction on it should be the exception. While the Defamation Act is not under the Minister's remit, it could be reviewed. Although it includes a defence of honest opinion for the one accused, this defence may require too strong a factual threshold for opinions.

The Irish Human Rights and Equality Commission, though problematically not fully established, would be best placed to do this work. If we had a designated human rights committee, it would be the best parliamentary place to receive such work.

We also need policies, laws and resources to ensure that our schools are homophobia-free zones. The Minister for Education and Skills, Deputy Quinn, has committed to this. I, for one, stand up against homophobic bullying. An important campaign is being run by BeLongTo, supported by other groups, for example, Marriage Equality, etc. However, more needs to be done. Getting rid of section 37(1) of the Employment Equality Act would be a significant catalyst to usher in a new era of freedom in our schools.

I stand here as a woman married to another woman, Ms Ann Louise Gilligan. I have travelled beyond the valley of shame and fear because her forever love beckoned. This is what marriage equality means. This is why we must get this right. It is in our power to do so.

Averil Power (Fianna Fail)
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I welcome the Minister to the House for this important debate. As Senator Bacik pointed out, in the aftermath of the revelations of RTE's settlement last month with John Waters, Breda O'Brien and members of the Iona Institute, I called for the Minister to come before the House to discuss this issue. I did so for several reasons. First, I was horrified by the way that Rory O'Neill's interview had been censored. Second, I was outraged that licence fee money had been paid over with such haste, and in circumstances where many barristers had argued convincingly that RTE could have successfully defended any threatened legal action. Third, I was deeply concerned about the precedent that RTE's response could set for future public debate not just on issues related to equality for lesbian, gay, bisexual or transgender people, but also on wide range of issues of public importance. I felt strongly that it was incumbent on the Minister to make sure that this decision does not set a dangerous precedent for public speech in this country.

Freedom of speech is absolutely essential to democracy. It is one of the key things that distinguishes us from oppressive states like Russia. As a democrat, I defend the rights of others to express freely their views on every issue, even if I find their comments offensive. Public debate should always be open and robust. People should hear all views and then be free to make up their own minds on who they agree with.

I have no doubt that the two individuals named on "The Saturday Night Show" were offended by the comments made about them, but both of these individuals are high profile journalists who frequently write things that others find offensive. They jealously guard their own freedom of speech, and rightly so, yet as soon as someone criticised them and pointed out the impact, influence and power that their comments have had on public debate and on other people, they issue legal threats against the individual concerned and the State broadcaster. In my view, it was particularly inappropriate for journalists to take such a course of action. They were offered a right of reply by RTE and could have taken up the opportunity either to speak on "The Saturday Night Show" the following week, or to use their own newspaper columns to outline their views. Instead, they opted for censorship and ensured that RTE paid €85,000 worth of licence fee money from every person in this country to themselves and to people associated with the Iona Institute.

In agreeing to settle, RTE betrayed its responsibility as a public service broadcaster to ensure that both sides of the debate are heard on issues of public importance. Several barristers have argued convincingly that RTE could have won any threatened legal action on the grounds of the honest opinion defence to defamation. That defence is set out in the 2009 Act and it applies to statements of opinion referring to matters of public interest, where the defendant can prove that the opinion was honestly held, and where facts on which the opinion is based are stated or otherwise widely known, or the facts on which it is based are true or covered by privilege. Once these criteria are met, the opinion can be expressed in very unpleasant terms. It is an opinion. It was clear from the show that it was Rory O'Neill's honest opinion that the individuals to whom he referred were homophobic. The Minister or I might disagree with that, and other people in the room might disagree with that, but it was his opinion and our laws defend the right of people to put forward their honest opinions. Rory O'Neill made it clear on the show that the definition of the word "homophobic" that he was using included not just irrational fear and hatred of gay people, but also discrimination and prejudice based on sexual orientation. While people might argue that the word "homophobic" conjures up impressions of extreme behaviour, as was pointed out by Rory O'Neill on the show, the actual definition that is increasingly accepted covers a spectrum of behaviour, from the subtle to the extreme. Even taking the most restrictive interpretation of the word, I do not see how anyone could argue that the following comment by John Waters in a newspaper interview was not homophobic.

This is really a kind of satire on marriage which is being conducted by the gay lobby. It is not that they want to get married; they want to destroy the institution of marriage because they are envious of it.

Everybody has a responsibility in public debate to conduct themselves in a responsible way, but this cannot mean that people are prohibited from giving their honest opinions on the hurt that they feel about arguments that other people have made in the public debate. It is my view that RTE's response was inappropriate, but I think it is now time to move on from arguing over the meaning of the word "homophobia", and focus instead on the discrimination that LGBT people still face in this country. In spite of all the progress that has been made in recent years, many lesbian, gay, bisexual and transgender people still face intimidation and discrimination on a daily basis. Homophobic bullying is rife in our schools. We still have laws on our books that allow teachers and doctors to be fired just because they are gay, no matter how great a job they are doing, and loving couples are still denied one of the most basic and important rights of all, the right to marry.

It is important that we have a free discussion about these issues, that we are free to challenge these issues, and free to point out the hurt that they cause. I also accept that the country is on a journey of improvement to reach full equality. I hope that embracing full marriage equality will be the completion of that journey. I do not believe that everybody who opposes marriage equality is homophobic. I have never said that. I do not believe that. I just think there are many Irish people who just have not engaged with the issue. Perhaps they do not know lesbian and gay couples who are affected by it, who might live on their street or who are in their families, so they do not understand the impact that it has. However, I saw first hand at the Constitutional Convention that when people listen to those arguments and the personal stories about discrimination, it does change their opinions. We are engaged in a journey of education and persuasion, and I think we need to listen to the real concerns and fears of people, why they do not support equality, and we need to persuade them. That should be the focus of the debate.

Paddy Burke (Fine Gael)
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The Senator is way over time.

Averil Power (Fianna Fail)
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I just want to wrap up briefly. A little latitude was shown to others.

Paddy Burke (Fine Gael)
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Somebody will not get in at the finish. I must call Senator Noone. Many other Senators have indicated and I must call the Minister at 6.45 p.m.

Catherine Noone (Fine Gael)
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I commend Senator Zappone and her independent colleagues on tabling this motion, and I welcome the guests in the Visitors Gallery. I also commend Senator Power, who raised the issue on the Order of Business. It is an issue which she regularly raises with great passion in the House.

I am delighted we are having this debate. Some will say that it is current, timely and topical, but I believe it is both overdue and essential. It is vital to have a debate on the issues of free speech, homophobia and the public service role of the State broadcaster in these debates. While these debates are all interconnected - free speech in modern Ireland, homophobia in modern Ireland and the public service role of the State broadcaster in modern Ireland - are each worthy of their own parallel debates. I use the term "modern Ireland" for each debate, yet in the last few weeks I feel as though I have travelled through time from modern Ireland to Catholic, dogmatic Ireland and then back to modern Ireland again with a jolt.

Three months ago I though we had a modern State, that Ireland was cosmopolitan, friendly and outward looking, with people in the city friendly to all regardless of skin colour, sexual orientation or background and in which, by and large, nobody would experience prejudice. Senators have alluded to a sequence of events, which I am still struggling to reconcile and which makes we wonder whether we live in a modern country that accepts everybody or whether we simply put on that face.

A speech about homophobia opened a can of worms. There were arguments back and forth with the State broadcasting service paying taxpayers' money to the tune of €85,000. What has happened since then has been heartening. People of all faiths and from all backgrounds have stood up to speak out in favour of equality. We have heard stories about homophobia from throughout the country. Prejudices have been simmering beneath the surface waiting to be exposed, having gone unchecked for far too long. During the weekend, a person on an Irish radio station sports programme in a reference to gay people said:

What are their interests? I mean, if you have ever sat down with one, you know, homosexual people, and asked them what their interests are, very often they have no interest in any kind of sport. That is my experience of sitting down with them. I have done it on a regular basis.

The forthcoming referendum on same-sex marriage will take place in 2015. This is probably the start of a long-ranging debate on marriage, society, homosexuality and a great many other things. However, this debate is a very useful exercise in defining the parameters of the debate and ensuring that what we have witnessed and a journalist being paid by RTE does not happen again. We must ensure the debate is conducted in a reasoned, civilised and decent manner. I was looking through the archives recently and discovered a quotation from Senator Norris in 2003: "The level of homophobia is appalling and it should be addressed in our schools and elsewhere." It is sad to think that now, more than a decade later, we still face an appalling level of homophobia in our society. While things evolve and change, they perhaps do so just a little too slowly at times.

I commend the great work being done by LGBT charity ShoutOut, which was just formed last year. ShoutOut visited more than 45 schools throughout the country, delivering anti-bullying workshops. It did so on a voluntary basis, being funded through Internet donations. When it comes to the State broadcaster, it is working on tighter budgets than ever before while at the same time, to be fair, ensuring more output. In short, like many other public sector institutions, it has to do more with less. While it should be commended on doing so, none the less RTE, with the threat of legal action, in my opinion seemed to have reached for the panic button and decided that a smaller payout on the taxpayer tab today was better than the risk of a larger payout down the line. Perhaps it was right. I certainly know as a practising litigation lawyer that defamation cases are extremely expensive and often these matters are decided on an economic basis.

I am looking forward to the referendum on same-sex marriage and to a national debate of substance on the issue. It would also be a worthwhile exercise for RTE to establish the sequence of events which led it to award such a payout. I commend once again Senator Zappone and the Senators in the Independent group for providing this opportunity to debate the issue. I look forward to the Minister's responses, especially his comment on the RTE issue.

David Norris (Independent)
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I commend my colleagues, in particular Dr. Zappone, and let me say how thrilled I am to see in the Gallery her partner and spouse, Dr. Ann Louse Gilligan, who is restored to health. That is the cream on the pudding. I welcome the Minister, mild and lukewarm, because I think he has been fairly limp in dealing with the press. I am not one to hand out bouquets. I hope the Minister has read the information I sent to him.

Pat Rabbitte (Dublin South West, Labour)
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I was getting very worried about how polite Members all were.

David Norris (Independent)
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The Minister should not expect politeness from me because I tell the truth to my friends, even when it stings. The media in this country must be taken on and the Minister knows that. Politicians are gutless in the extreme.

Let me deal with the issue of honest defence. A petition to be sent to the Taoiseach from the gutter press has been doing the rounds, seeking support for the introduction of the American system in Ireland. We do not want the American system, as it is highly dangerous. The business of honest opinion is quite dangerous and needs to be looked at very carefully. One does not need to rely on it because what those people have said consistently, which I have said in this House and on RTE, and if they want to sue me I would be delighted, is plainly homophobic. I can comment on that because when we were suing the Irish State, I brought over Dr. John Spiegel, who was head of the American Psychiatric Association when they changed the classification of homosexuality and decided that it was not an illness. The word "homophobia" emerged from discussion at that time. "Homophobia" means an irrational fear of gay people.

In regard to what the piece of bimbo beefcake who was on the radio the other day, who played rugby or whatever, said, that I laugh like a drain, while I know people must be protected against this because not everybody can laugh, I would not like to be him the next time he goes into a barber because he also said he never knew there were any heterosexual barbers. That fellow is going in for a crew-cut, if ever I heard one.

I commend and congratulate the vision of Senator Fiach Mac Conghail, in having Panti on the stage of the Abbey Theatre, which was one of the great moments of theatre in this country since the time of W. B. Yeats. I thank Senator Mac Conghail for doing that.

I am delighted that this has been an all-party motion. It was proposed by Senator Zappone and seconded by Senator Bacik from the Labour Party. I do not believe there will be a division and it is absolutely wonderful that we are united in this way, as we should be. I pay a special tribute to Senator Averil Power. I was unwell at the time, but my goodness we had a champion there and what she did was absolutely fantastic. All kinds of people have joined in. Mr. Noel Whelan, a barrister, gave his opinion in print in The Irish Times before he had seen the programme. I wonder if he ever heard of hearsay evidence, the poor thing, God bless him. Then Archbishop Martin made up for it. We all know the expression that if one wants to know if the boot pinches, do not ask the boot, ask the foot. Archbishop Martin said the person who is offended defines what being offended is. Bravo to Archbishop Martin. He is 100% right in that. It was a good and brave thing to do.

Then there is the issue of RTE. The Minister has a role in RTE. I have tried to get the issue taken up by both the Committee on Communications, Energy and Natural Resources and the Committee on Public Service Oversight and Petitions. It is an absolute disgrace. I am quite a litigious person and I know one will never get an opinion from senior counsel that does not say there is always a risk. I want to see the opinion provided to RTE, and the Minister must demand it from RTE because I know bloody well it did not say what the director general or whatever he was said at the beginning. RTE was equivocal and kept changing it. Of course RTE was told at the beginning that there might be a risk, but it was certainly told that it was eminently defensible and no barrister worth his or her salt would have said anything else. By giving in so gutlessly to the bullies, RTE let down free speech. I do not want to pay my television licence after that. I despise them for what they did.

Who are their opponents in this case? One of the journalists has been referred to.

Paddy Burke (Fine Gael)
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The Senator has one minute remaining.

David Norris (Independent)
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One minute will be more than enough for me to deal with the Iona Institute. How is it an institute? It has never done any original research. That is one of the qualifications to be an institute. In Britain it would not be allowed to call itself an institute. It is a self-appointed bunch of boot boys and boot girls who try to bully all the time. It is for nothing, it is run by a company called Lolic and its aims include advancing the Christian religion. I am a Christian and it has not advanced me very much. It is not in favour of anything positive. It is against divorce, abortion, abortion information, same-sex marriage, liberal sex education, IVF, stem cell research, embryo research, euthanasia and neutral education.

There is homophobia around this place too. One of my colleagues who sits just here - and I have experienced blushes because he is not here today - I heard on RTE radio saying that gay people wanted children as a fashion accessory. What is that if not homophobia? There are one or two people who have put their names to amendments to the civil partnership legislation which would have made me an outlaw in my own country if I went into a confectioner's shop to buy a wedding cake or ordered it.

Paddy Burke (Fine Gael)
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The Senator's time is up.

David Norris (Independent)
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Homophobia is one of the most disgusting things and must be rooted out wherever it happens, whether it is in this House or in RTE.

Paddy Burke (Fine Gael)
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I ask the Senator to conclude and call Senator O'Donnell.

David Norris (Independent)
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I appeal to the Minister to take very strong measures to combat this matter.

Paddy Burke (Fine Gael)
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The Senator is way over his time.

David Norris (Independent)
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I want the Minister to make sure that RTE does not let us down and that we get back the money. Can I end with the following?

Paddy Burke (Fine Gael)
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I call Senator O'Donnell.

David Norris (Independent)
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I say to the Iona Institute that if it has any Christianity, any standards or any decency to give the money back.

Marie Louise O'Donnell (Independent)
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I thank the Chathaoirleach and welcome the Minister. I would never ever stand up when a great speaker is speaking like the one that we have just heard.

I wish to acknowledge that Dr. Ann Louise Gilligan is seated in the Visitors Gallery. I know that she is the marital partner of Senator Zappone and she is also an outstanding speaker, teacher, philosopher and lecturer. I have known them for years and it is a privilege to have Dr. Gilligan in the public Visitors Gallery.

I would like to say, as an Independent Senator, that I did not table this motion, which calls for a public debate on the issues of free speech, homophobia and the public service role of the State broadcaster in such debates. Having free speech and homophobia in the same sentence is as though it is an extension of the other or without one you cannot have the other. It is my opinion that there is no such thing as free speech because all speech is connected, rooted or intertwined with and through our culture, our mores, our perceptions, our histories, our words, what is said, how it is said, who is saying it and who it is being spoken to. The Innuit Eskimos have 240 words or explanations for the colour white because they live in a white world. Language is always about community. It is a community where we agree on the rules because my private language is my private madness. The idea of free speech does not really exist because there are limits to free speech - if one thinks of inciting riot - and we cannot pretend that there are not.

It was C. S. Lewis who said: "When I use a word it means just what I choose it to mean - neither more nor less. The question is whether you can make words mean so many different things".

David Norris (Independent)
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Humpty Dumpty.

Marie Louise O'Donnell (Independent)
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"The question is," said Humpty Dumpty, "which is to be master - that's all".

A senior banker who in his official capacity as the chief executive officer of the Bank of Ireland - the only roulette tabled banker left standing in Ireland since the crash - spoke before the Taoiseach and a huge audience last Wednesday, 12 February, at an IBEC chief executive conference in Dublin. He said, when speaking about his bank and the bank's Celtic tiger banking, Las Vegas-type behaviour: "At a wild party, even good girls can get into trouble". What about that comment in terms of free speech? Where do we go from there? I do not know where to start or end with the perceptions, the language, the mores, the words, the culture and, behind all of that, profanity and illiteracy. However, we want a country in which this banker can say what he said, in which he has the freedom to say it because he will - certainly by me - be destroyed by his own speech, his own prejudice and his own lack of thought. My answer would be to take my money out of his bank. He will destroy himself in the process. By his own beauty and his own grace he will be destroyed.

In the same way one cannot say that because I do not agree with the marriage of same-sex couples that I am homophobic. I am entitled to say it, believe it or feel it and it is beyond reason - or a reasoned argument - to suggest that I am homophobic because I do. Senators, I am not fond of marriage but I am very fond of civil partnership and tenancy in common. I would not recommend single parenthood to anybody. I am a single parent but it does not make me prejudiced against it.

The motion also calls on the Minister for Communications, Energy and Natural Resources to debate these issues and to outline steps that he and the Government will take to ensure that the debate on marriage equality is conducted in a fair, open and impartial manner. Are we not doing that? Is that not what the Seanad is supposed to be about? Do I not sit here on a daily basis and listen to opinions, thoughts and view that I consider to be from middle earth or, indeed, from stratospheres that are miles away from how I feel or how I would like things to be? They are fair, they are open and can never be impartial so I disagree with Senator Zappone. It is very difficult to be impartial when there is an agenda. If there was an argument about impartiability or impartiality I would suggest that many of us - including myself - should leave most of our agenda in the attic and we might get further.

Paddy Burke (Fine Gael)
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The Senator has one minute left.

Marie Louise O'Donnell (Independent)
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This part of the motion is a benign and functionless request because it suggests that an elected Minister would do otherwise and get away with it. He would not and he could not.

Hildegarde Naughton (Fine Gael)
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I thank the Minister for joining us to discuss this very important matter. Recent events in RTE, for whom the Minister has line responsibility, have brought this topic to the forefront, which is welcome.

Last week I heard a certain newspaper columnist bemoan the fact that her own newspaper was the first to interview her since the "Pantigate" episode. She made the case that she was being refused a voice and all dissent was being crushed. That is astounding from someone who has a weekly column in a national broadsheet. Her two fellow protagonists have a weekly column in national newspapers and are frequently on the national airwaves.

David Norris (Independent)
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Hear, hear.

Hildegarde Naughton (Fine Gael)
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The fact is that those particularly conservative views that were imposed on our society for decades are now being openly challenged. That does not amount to persecution but it amounts to valid criticism. I urge both sides of the debate to conduct themselves in an orderly fashion and not to lose the goodwill of the citizens and voters of the middle ground.

Most amazing of all in this episode was the other conservative protagonist in the Pantigate controversy who also has a weekly column in a national broadsheet and is frequently on the airwaves. The gentleman gave an interview to the UCD student newspaper in 2012 which was reproduced with audio and a transcript on Broadsheet.ie. Senator Power has alluded to part of the interview. I urge all Senators to read or listen to the interview.

Is it right that the national broadcaster who we depend on to strike a balance in public discourse is forced to pay out to conservative columnists who invited debate on the issue through their columns? RTE must have a robust attitude to debate and if the legislation needs to be strengthened then I urge the Minister to examine the matter. Does the Minister know whether RTE carried out the most basic of research before paying out a considerable sum of taxpayers' money? I shall close my remarks by quoting a speech that some of our more conservative commentators should listen to:

We sometimes have to listen, much to our regret, to voices of persons who, though burning with zeal, are not endowed with too much sense of discretion or measure. In these modern times they can see nothing but prevarication and ruin. They say that our era, in comparison with past eras, is getting worse. They behave as though at the time of former councils everything was a full triumph for the Christian idea and life and for proper religious liberty. We feel we must disagree with those prophets of gloom, who are always forecasting disaster, as though the end of the world was at hand.

Labhrás Ó Murchú (Fianna Fail)
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Go raibh maith agat, a Chathaoirleach. I am delighted to have this debate and I welcome the Minister here this evening as well. It is good to see so many Senators debating the motion. We have an enviable record in the House for showing respect for free speech and I think that we would all admit that. We should feel very proud that we have staunch advocates in this House for diverse causes and issues. Long may it continue. That is one of the biggest arguments in favour of retaining Seanad Éireann.

The question of free speech seems to be the substantial, but not necessarily the substantive issue, contained in the motion. I do not think that any democrat can argue against free speech. I believe that it is one of the strongest planks in democracy. We should guard it jealously and we have always guarded it jealously.

Another plank in democracy is the right to vindicate one's good name and I hope that will also continue.

The challenge we have, as democrats, is to find a balance between those two points. I believe the motion could have been enhanced greatly if both those planks were brought into it but, unfortunately, the question of vindicating one's name is absent from the motion. In a way, that takes from the debate and dilutes the potential for working together on any given issue, particularly on the forthcoming referendum.

We are focusing on a single issue which arises from the controversy coming out of "The Saturday Night Show", but that is not the only time RTE has given apologies. Therefore, if we are looking for change, let us see how it impacts on people. For instance, a senior trade unionist looked for an apology because he was mentioned by a caller to the Joe Duffy show, and he got the apology. In the last two weeks, an Independent Deputy got a vindication of her name by way of a statement on the Vincent Browne programme. We have also had the case of Fr. Reynolds, which most people would agree was not right. These cases all fall into different categories. Therefore, in debating this, we need to look at the broader debate, particularly if we are asking for a change in legislation.

Interestingly enough, and I am sure most Members have been following this in the media, I discovered, when the initial frenzy related to the controversy tended to abate somewhat, that several journalists came out and put down markers as to why we should have caution in regard to the manner of this debate, including Martina Devlin, Eilis O'Hanlon, Emer O'Kelly and Pat Leahy. If one reads their columns, they all raised very significant questions when that frenzy was raging, and there are many more examples of this.

I have heard Members of the House say, during the abortion debate and other debates, and rightly so, "Let us be calm" and that, if we have a point of view, we should put the point of view, and if somebody else disagrees with that point of view, is that not what debate is all about? However, I believe this debate has gone off the rails. I feel terrible hurt for the people who have spoken here, such as Senators Zappone and Norris. I say this genuinely. I feel an awful hurt that they feel the hurt, and it is evident that they do feel the hurt, as do so many other people. That debate can take place in a much quieter way.

The substantive issue here is precisely what they are seeking in the referendum, that is, a change in the Constitution. However, what has become the substantive issue is a word and the meaning of that word, and so much more has been lost in the course of that debate. We are here as Senators. We enjoy huge privilege in this House, and apart from directing some suggestions towards the Minister, we are largely speaking to ourselves. There will be very few people who stand up here and even make the type of points I am making, because most of the points will come from those who have supported the motion as it is.

I was fiercely impressed this morning by Senator Norris, when he was able to break loose from a single issue and talk about the manner of how certain sections of the media are endeavouring to manipulate this issue to get for themselves carte blancheto say what they want to say. Senator Norris himself found it necessary to take out writs against various media outlets because of what was said in what was, as some people would put it, a robust presidential election campaign. Was he not right to do what he thought was right to vindicate his name? That is why I am so sad that the vindication of one's good name, which to me is so important, and which we, as democrats, should be arguing for, is missing from the motion and that, therefore, there is a lack of balance in that motion.

Jillian van Turnhout (Independent)
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I welcome the Minister to the House. I thank Senator Zappone for taking the initiative on this debate. Instead of focusing on a single definition of homophobia, we need to acknowledge that homophobia presents itself in a wide spectrum, ranging from violent hate crimes to far more subtle forms of discrimination.

I, too, commend Panti's address at the Abbey Theatre on 1 February, and my colleague, Senator Mac Conghail, on using our national theatre in the way it was so rightly used for a noble call. She articulated so succinctly the impact of subtle discrimination and homophobia on a person's psychic and mental well-being, causing them, in her words, to check themselves at the pedestrian crossing. The number of views, and the number of languages in which that video has gone around the world, shows the power that words can have.

It is very important, however, that we do not have debates about important social issues in isolation from each other. Social issues are invariably interrelated - homophobia, self-harm, suicide and suicidal ideation - and, tomorrow, we will have a debate on mental health and well-being. This is particularly true for young people and, in this context, LGBT youths. A report in 2008 was published jointly by BeLonG To, GLEN and the HSE, called Supporting LGBT Lives. That report found that 50% of LGBT youths have thought about suicide and 20% attempted suicide. LGBT young people are seven times more likely than their heterosexual counterparts to experience mental health distress. It has also been established that young people identify their sexuality at age 12, on average, and the average age of coming out is 17. This five year period in which young people come to terms with their sexuality is vital. Living in a society where anti-gay bias exists can lead to many difficulties in this critical adolescent period.

All this demonstrates the extent to which homophobia presents in society and impacts on the individual. The survey found that 80% of LGBT people have been verbally abused because of their identity. This is simply unacceptable. LGBT people must be treated as equal citizens and we must actively work to eradicate homophobia and any type of discrimination from our society. I believe we live in a society that is obsessed by labels. We need to celebrate difference, and this can only be done through robust, open and constructive debate. I was involved in a campaign a few years ago for which the slogan was: "We need to keep labels for jars, not people".

I, like many of my colleagues, am concerned by the speed and, indeed, indecent haste with which RTE responded to Rory O'Neill's comments on "The Saturday Night Show". The decision to issue compensation, an apology and a right to reply to some of those perceived to have been injured may well have been disproportionate in the absence of a legal finding of harm done, especially given that compensation was paid out of taxpayers' money. I am also uncomfortable about the absence of commentary around the fact the presenter of the show in question prompted Rory O'Neill to identify individuals by name. I think RTE's decision is worrying on a number of levels. I feel it has negative implications for freedom of expression and also the manner in which debates around marriage equality will be conducted in the future. We all need to accept that robust and sometimes volatile discussion will take place around sensitive issues, and we should embrace this, not censor it.

It is evident, in the aftermath of the comments debacle, that people on panels were tripping over themselves trying not to say the wrong thing. That does not bode well for healthy and open debate. The upcoming referendum on marriage equality will see many different views. We need to ensure freedom of expression remains intact at all times. We need to send a message to young people that discrimination will not be tolerated. Homophobia does exist. There are real consequences for the targets of this abuse.

It is of the utmost importance that our national broadcaster ensures open and fair debate where both sides can communicate their argument in a fair and sensible manner.

Trevor Ó Clochartaigh (Sinn Fein)
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Tá áthas orm a bheith in ann seasamh anseo agus tacaíocht a thabhairt don rún atá os ár gcomhair anocht. Cuirim fáilte roimh an pobal LGBT atá inár measc anseo agus na hionadaithe atá anseo ar a son. Braithim i ndáiríre go mbaineann an díospóireacht seo le cúrsaí cinsireachta, seachas díreach an gné atá pléite.

I support the motion and the opportunity it affords for discussion. The politics of this debate centre on the censorship of certain views. Rory O'Neill's interview on the "Saturday Night Show" was taken off the RTE website and compensation was quickly paid out to certain individuals who are not shy when it comes to expressing their own opinions. This amounts to censorship of Mr. O'Neill and a denial of his right as a gay person to name homophobia. We question the speed at which RTE paid out compensation to these individuals and the legal advice it received before doing so. The national broadcaster receives significant public funding and, as a result, it is a matter of public interest that the legal advice it received be published in full. The payout from RTE has huge implications for the way in which debate on social issues is conducted on our airwaves, with small unrepresentative groups having the potential to set the parameters of what is considered acceptable debate. This particular case is unusual in that it has received far more attention than any other defamation claim levelled at RTE and, as such, the public has a right to see the advice on which the State broadcaster acted. I am calling on the Minister to ensure RTE publishes that advice.

David Norris (Independent)
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Hear, hear.

Trevor Ó Clochartaigh (Sinn Fein)
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This case does not set a good precedent for the upcoming referendum on marriage equality. There is a fear that if Rory O'Neill was censored by RTE for speaking out about homophobia, then the same could also happen to other members of the LGBT community in the course of the debate. It is the LGBT community which is in a position to define what homophobia is. It is the LGBT community that is at the receiving end of homophobia and knows its demeaning and discriminatory characteristics best. In that context, we welcome the recent statement by Archbishop Diarmuid Martin.

We must be careful to avoid a politics of censorship surrounding this debate. This is not just about homophobia and gay marriage; it is about freedom of speech and the obligation of the State broadcaster to facilitate it. From the early 1970s until the early 1990s, republicans were banned from Irish airwaves and television screens. This ensured that important voices could not be heard and that a State-centred view of the Troubles prevailed unopposed. It is not acceptable for RTE, as the State broadcaster, to censor this or any other debate on issues to do with human rights and the equal standing of minority groups before the law. RTE must ensure the LGBT community receives adequate air time in the run up to the referendum on marriage equality. We are focusing on RTE in this debate, but we should remember there are other television broadcasters in the State as well as a range of radio stations, all of which are subject to legislation.

I have several questions for the Minister. Why did RTE not contest the allegations made against it by John Waters etc. and why did the Minister not intervene? One is either for freedom of speech or one is against it; there can be no half measures. As Minister with responsibility for the national broadcaster, Deputy Rabbitte failed to defend this basic premise on behalf of the people of Ireland. Maidir le TG4, tá bród orainn go dtugann sé léargas eile ar an saol in Éireann and that it has branded itself as the "súil eile". In an Ireland of diverse communities, TG4 has experience in broadcasting content that is outside of the mainstream and it has a remit in this area. It would be unfortunate if RTE had the monopoly on public service broadcasting on this issue. It is important that funding for TG4 is secured and that it is held to the same rigorous standard as applies to RTE under the equality legislation.

I am very proud that Sinn Féin launched a paper on LGBT rights in Ireland at our recent Ard-Fheis in Wexford, where my colleague, Chris Curran, spoke very strongly on these issues. He highlighted the failure by successive Governments to have the moral courage to stand up for what is right. We must never forget that this State was shamed into the decriminalisation of homosexuality by the European Court of Human Rights. The prolonged effect of this State-led discrimination has not only left a legacy of inequality, mental health issues and discrimination; it leaves overt and subtle homophobia and transphobia unhindered to undermine and demean LGBT people. This is not just an Irish phenomenon. The regressive legislation adopted in Russia and Uganda, for example, sends a message around the world that gay people are something other than normal.

In an Irish context, we have a State broadcaster unable to cope when challenged with subtle homophobia being brought to the surface.

David Norris (Independent)
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Hear, hear.

Trevor Ó Clochartaigh (Sinn Fein)
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In fact, when our own LGBT gardaí are prevented from marching at Gay Pride in their uniforms, while their European colleagues look on in amazement, there is evidence of a more pressing need, not just for legislative change but a change in societal attitudes towards LGBT people.

David Norris (Independent)
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Well said.

Trevor Ó Clochartaigh (Sinn Fein)
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The Government has the power to make this change and it should not be found wanting. It must admit to its role in the higher than average rates of suicide, mental health and self-harm endured by LGBT people. It must acknowledge the thousands who have lost their lives as a consequences of the State's reluctance to legislate.

Sinn Féin supports LGBT equality. We call on the Government to eliminate legalised homophobic and transphobic discrimination against LGBT education and health care workers in the Twenty-six Counties by amending the 1937 Constitution to include express equality protections for LGBT citizens and equal treatment for all family forms. We urge the Government to set a date for a constitutional referendum on same-sex marriage. We are also calling for the inclusion of express equality protections for LGBT citizens and prohibitions on homophobic and transphobic discrimination in the forthcoming Bill of Rights for the North, and for progress on the Northern sexual orientation strategy, including legislation to provide for same-sex civil marriage.

Paschal Mooney (Fianna Fail)
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Like my colleagues on this side of the House, I support the concept of equality and inclusivity. Fianna Fáil policy is already well enunciated in this regard and we look forward to an enlightened debate on the question of marriage equality. I intend, however, to pick up on comments by my colleague, Senator Labhrás Ó Murchú, in regard to what he considers certain failings in the framing of the motion.

I did not see the episode in question of the "Saturday Night Show" but I have paid careful attention to the fall-out. The concept of freedom of speech is a long-standing one that is found in several early human rights documents. England's Bill of Rights of 1689 granted freedom of speech in parliament and is still in effect. The Declaration of the Rights of Man and of the Citizen adopted during the French Revolution in 1789 specifically affirmed freedom of speech as an inalienable right. Article 11 of that declaration defines the free communication of ideas and opinions as "one of the most precious of the rights of man". The Article further states, "Every citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law." Article 19 of the Universal Declaration of Human Rights states, "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers".

At the same time, everybody, on all sides of the debate, would agree that there is no absolute right to freedom of speech. Mr. Kevin Brophy, solicitor for John Waters in the recent case, has described a statement issued by RTE in respect of the matter as "a grossly misleading version of what actually happened". Mr. Brophy stated, "[RTE] further went on to say that they took a particular course of action partly because of 'the decision by the complainants not to accept RTE's proposed remedies'". Outlining the course of events, Mr. Brophy indicated that on 11 January, he was instructed by John Waters to write to RTE seeking an apology, a retraction and the removal of certain defamatory comments from the Internet broadcast of the "Saturday Night Show". "My instructions were very clear at that time", he said, "John Waters and the Iona Institute clients wanted an apology and a retraction and nothing else". Mr. Brophy indicated that RTE had proposed a right of reply which, he said, was "like asking my clients to prove they are not homophobic". He further indicated that Mr. Waters made several attempts to deal with the matter himself, proposing the precise wording of an apology and further proposing that a donation of €15,000 be made to the Society of St. Vincent de Paul to mark the seriousness of the defamatory comments.

Mr. Brophy also states:

This proposal did not come from RTÉ, it came from John Waters. RTÉ were not happy to broadcast the apology we had drafted and instead said they intended to go ahead with a totally unsatisfactory two sentence statement. Over the course of the following seven days, an unsatisfactory wording was eventually agreed and was broadcast.

David Norris (Independent)
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Mr. Waters was still a member of the Broadcasting Authority of Ireland. Surely a conflict of interests.

Paschal Mooney (Fianna Fail)
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Finally, Mr. Brophy indicated that "It should also be noted that these negotiations were ongoing at a time when John Waters was being subjected to the most outrageous level of online abuse and adverse commentary."

I place these quotes on record because it appears that only those on one side of the argument seem to have been offended. There are, however, two sides to this story. I fully support equality and inclusivity in society. While there are those who might suggest he was forced into doing so, it must be noted that a Fianna Fáil Minister for Justice decriminalised homosexuality in this country. My party has a proud record on inclusivity and I stand over that. I am under no illusion whatever with regard to the difficulties faced by those who are gay, lesbian or transgender. I have absolutely no illusions whatsoever about the hurt they have experienced and, on occasion, the vile abuse that has been hurled at them down the decades. At the same time, however, I would not have liked to have been accused of being homophobic because I held a particular point of view which was interpreted as being homophobic and to have left such a charge unanswered.

During the last European elections campaign, in a debate on "Tonight with Vincent Browne", some elements of the party with which Fianna Fáil is aligned in Europe, the Alliance of Liberals and Democrats for Europe, ALDE, were accused of taking a particularly pro-abortion position. As a result of my party's alignment with ALDE, I was accused - on live television - of being in favour of abortion. How does Senator Norris think I, as a person who is pro-life and who is opposed to abortion, felt at that stage?

David Norris (Independent)
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We are all pro-life.

Paddy Burke (Fine Gael)
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Senator Mooney, without interruption.

Paschal Mooney (Fianna Fail)
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How does the Senator think I, as someone who is not in favour of abortion on demand, felt?

Paddy Burke (Fine Gael)
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Senator Mooney must conclude.

Paschal Mooney (Fianna Fail)
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I understand how people who are gay, lesbian or transgender feel when they are placed in an invidious position. At the same time, however, I have sympathy with those who are accused on live television of being something which plainly they are not.

David Norris (Independent)
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They are.

Martin Conway (Fine Gael)
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I would like to sound a positive note. The Minister is genuine in terms of his position on this issue. There is a need to move on from what happened and to learn from the mistakes that were made. Those mistakes have been well articulated. I agree with colleagues on all sides who were somewhat dismayed at the speed with which RTE coughed up money in this instance. A significant number of people were of the view that the station made the wrong decision. I am inclined to agree with that school of thought. What RTE did was not appropriate. We need to move on and create a society in which people will not just be equal but which also respects difference. Such a society must recognise that people have different orientations and treat them as equals. We refer to our society as being tolerant but when one contemplates events which have occurred in recent times, it is apparent that we have a long way to go before that will actually be the case.

The message which should go out from Seanad Éireann tonight is that people should aspire to the ideals of tolerance and respect and that we should try to nip the type of outrageous commentary which has occurred - both recently and in the past - in the bud. I was particularly struck by Senator Norris's contribution during a recent appearance on "The Late Late Show", when he described being hit, attacked and jeered in the past couple of years. Everyone knows the Senator is a thorough gentleman and the type of behaviour to which he referred is completely unacceptable. Thankfully, the Garda is on the side of decency.

David Norris (Independent)
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I got a thousand quid for my troubles.

Martin Conway (Fine Gael)
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Members of the force will not entertain the type of behaviour in question. The Judiciary is also on the side of decency. What we need to do is engage at primary and secondary school level and offer educational courses in awareness, etc., to ensure future generations will not be obliged to put up with what Senator Norris has been obliged to endure over the years in this so-called tolerant country.

Pat Rabbitte (Dublin South West, Labour)
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I thank Senators Zappone, Bacik and their colleagues for sponsoring this motion. I also thank all of the Senators who contributed to the debate. I, too, am delighted to see Ann Louise Gilligan in the Gallery. Ms Gilligan is well on the road back to good health. Having listened to Senator Norris, I do not hold out much hope for the health of Neil Francis. Whatever about going for a haircut, Mr. Francis should certainly avoid a warm towel shave in the weeks immediately ahead.

I am glad Senator Mooney raised the question of the apology. My understanding is that concession of the apology in the terms drafted would have been tantamount to destroying the honestly held opinion of Rory O'Neill. There would have been very serious implications involved in accepting such an apology. In saying that, I in no way wish to impede the desire of Mr. Waters to give money to the Society of St. Vincent de Paul.

The controversy which gave rise to this debate has brought the issues of gay rights, homophobia, freedom of expression and the obligations of the public service broadcaster to the fore. The handling of and reactions to that broadcast have been subject to commentary, criticism and query. I have spoken about the issue on a number of occasions during the past few weeks. I said that, personally, I would not use the term "homophobe" to describe those who disagree with me on issues of gay equality, in general, or gay marriage, in particular. Perhaps that is the instinct of the politician whose natural disposition is to persuade rather than confront. I have stated that, on one hand, it is too loaded a term and, on the other, too imprecise in its meaning to be used to categorise all those who hold contrary views on a matter for legitimate public debate. Issues such as this are informed by deep-felt religious, moral and social considerations, but also, unfortunately, sometimes only by prejudice. Opinion undoubtedly will be divided. The best we can hope is that people will debate the matter calmly, in good faith and with respect for opposing viewpoints. I have also said that people who hold themselves out as commentators on or contributors to public debate must appreciate that such debate can be robust, heated, personal and sometimes even hostile. We politicians are expected to function as normal in such an environment. That norm apparently does not apply to those fragile wallflowers who themselves are not restrained when it comes to dishing it out.

Freedom of speech and expression - and equally the right to be heard - are central tenets of the United Nations Universal Declaration of Human Rights. They are central to the proper functioning of civil society and cannot be taken for granted. Unless the media can report without fear or favour, then the public good is undermined. The right and ability of media to do this must be proactively asserted and maintained. To quote the UN Secretary General, "When it is safe to speak, the whole world benefits". As we all know, RTÉ is an independent public service broadcaster. It is obliged to be responsive to the interests and concerns of the whole community, to reflect the varied elements that make up the culture of the Irish people and to uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression. However, RTÉ will not be the lone platform for debate in the forthcoming referendum. We must remember that information will be presented and opinions exchanged across all media. As the debate in recent weeks indicates, media matter. As citizens, as voters and as representatives, we need a free, diverse media which is not beholden to a single sector of society, to large commercial concerns or to a single political party.

Whether we chose to admit it or not, for both politicians and those we serve, media play a central and critical role in conveying information, parsing outcomes and passing judgment. They create the written and recorded account of what happens. In a very practical sense, they create the reality within which we exist and act. As a result of this, the nature and character of media matters as well. Its ability to speak truth to power and to challenge authority is one of those slender columns that sustain democracy. If that capacity is reduced in any way, we are all the poorer for it. If media is fettered, either by the interests of owners, by fear of authority or by the simple fact of groupthink, our democracy is worse off. That proposition stands, irrespective of what any Member of this House may think of the focus of sections of today's media.

The development of a free and pluralistic media, both in terms of the technology and the legal and economic frameworks, has proceeded stepwise with the development of democracy. In simple terms, it is impossible to conceive of a modern democracy without a free and diverse press - the two are intrinsically linked.

At EU level, both individual member states and the EU institutions have long had constructive involvement in media at a number of different levels. One of the instruments that remains available, and which retains immense value, is the fact that each member state can still support, due to the space made in EU law, its own national public service broadcaster. This is thanks in no small part to Protocol 29 of the EU treaties, which recognises that each member state's public service broadcaster aims to meet the democratic, social and cultural needs of the society in which it operates and which also speaks of the need to preserve media pluralism.

My conviction that public service broadcasting is a public good is not in the slightest undermined by the seeming inability of our own public service broadcaster to drag itself out of the rut of negativity that has so absorbed it since the economic crash.

While I have not been silent on my views on homophobia and the use of "homophobe" as a label, I have sought to avoid intruding into or ascribing motivation to the RTE decision in respect of settling contemplated litigation. Senators will likely have read the recent statement from the managing director of RTE television. The RTE explanation is that it had expert advice available to it that cautioned that it did not have a case to defend.

David Norris (Independent)
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Totally incredible - show us the advice.

Paddy Burke (Fine Gael)
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The Minister, without interruption.

Pat Rabbitte (Dublin South West, Labour)
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As a result, it made the decision it made. It is true that RTE is the public service broadcaster, but it is also true that it is a commercial company and it made a commercial decision as it does frequently in the face of contemplated defamation actions. In his commentary on RTE's handling of events, Mr. Killane stated that RTE had explored all possible legal redress mechanisms, including the possibility of a right of reply. The Broadcasting Authority of Ireland's right of reply scheme provides for the broadcast of a right of reply statement that facilitates the correction of incorrect information which has been broadcast and which has resulted in a person's honour or reputation being impugned. It is an opportunity for a person to correct incorrect information without recourse to legal proceedings. All broadcasters are required to include on their website a copy of the scheme and contact information. Decisions by a broadcaster to refuse such requests can be reviewed by the Broadcasting Authority of Ireland's compliance committee. However, a right of reply is about the correction of incorrect facts or information. The scheme does not provide for the broadcast of alternative or contrary opinions. In other words, a person may not be satisfied with the manner in which a broadcaster has relayed information about him or her but a right of reply will not be granted unless the facts or information are factually incorrect. This was not therefore deemed an option for RTE on this occasion. Noteworthy in his statement, Mr. Killane offered that RTE had "has not engaged in censorship, but has rather fallen foul of Ireland's defamation laws".

David Norris (Independent)
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That is complete rubbish and untrue.

Pat Rabbitte (Dublin South West, Labour)
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It would be a matter of serious concern if recourse to our defamation laws was to have a chilling effect on public debate on the issue of marriage equality in the lead-in to the referendum. While the defamation laws are outside my remit, the Broadcasting Act is not. At present, section 39 requires every broadcaster to ensure that nothing is broadcast that may reasonably be regarded as causing offence. I repeat my view that this seems to me to be an unfeasibly rigorous approach. We all know how easy it is for some people to be offended - even where offence was not intended and is not objectively ascertainable. I will shortly be proposing miscellaneous amendments to the Act. Among them, as I announced in the Dáil recently, I am now considering an amendment that would require broadcasters to avoid causing undue offence. That seems to me to be more objective and more in tune with the realities of public debate. I am not sure I agree with Senator Zappone that the difference is minor but we can talk about that when the legislation is published. If memory serves me, the term used by the Press Council of Ireland and Office of the Press Ombudsman is "grave offence". I do not know whether that goes closer to meeting the objective here.

In the specific context of referendum campaigns, Senators no doubt are aware that the Broadcasting Act 2009 requires the Broadcasting Authority of Ireland, BAI, as the independent regulator responsible for compliance in respect of broadcast content to draw up broadcasting codes on the standards and practice to be observed by broadcasters. The BAI has accordingly published a broadcasting code on referenda and election coverage. This code sets out the rules with which broadcasters must comply when covering any election or referendum. The aim of the code is to ensure that broadcasters' coverage of elections and referendums is fair, objective and impartial. Coverage should be undertaken without any expression of a broadcaster's own views on an election or referendum or on parties or candidates. In covering the forthcoming referendum, broadcasters must ensure, for example, that coverage of the referendum is fair and equitable to all interests. The BAI has previously highlighted the need for broadcasters to put in place transparent mechanisms for ensuring that coverage in the run up to the referendum and on the day that citizens cast their vote is fair, objective and impartial. It is incumbent upon the BAI and all broadcasters in the State to ensure that they adhere to the code on referenda and election coverage, as well as to the spirit and letter of the relevant judicial rulings in this area.

I know that many people think the broadcasters' hands are tied by the Supreme Court decision in Coughlan v. Broadcasting Complaints Commission, given in 2000. The immediate effect of that decision was to get rid of party political broadcasts during referendums. Perhaps most Senators would say this is no great loss. A knock-on effect, however, seems to have been the "stopwatch" phenomenon when it comes to measuring news and current affairs output in order to comply with a supposed "50-50" rule. Senators may recall Dr. Gavin Barrett of UCD writing back in 2009 that the application of the Coughlan ruling had the effect of politicians and parties in a referendum finding themselves given literally not one second more time on the airwaves than unelected campaigners whose sole qualification before being handed 50% of air time on both public and private broadcast media is that they have uttered the word "No". He wrote that,
put another way, influence formerly enjoyed by elected politicians has been transferred directly to unelected pressure groups or politicians with a tiny proportion of national electoral support. The result of the application of this case law and, almost as crucially, the failure to provide an appropriate legislative reaction to it, has been, to borrow the words of Barrington J. in his powerful dissenting opinion in the Coughlan case, to play down or neutralise the role of political leaders in favour of committed amateurs.

Paschal Mooney (Fianna Fail)
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Why not test it again?

Pat Rabbitte (Dublin South West, Labour)
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That is certainly a thought but it should probably come from a citizen rather than an officeholder. It is argued that, taken together with the second McKenna judgment, this case ensures that the entity which arguably has the most democratic legitimacy claim to exercise persuasive force - the elected Government - is largely prevented from doing so and effectively emasculated in its leadership role. Dealing with the Coughlan case specifically, that ruling was directed only at "uncontested broadcasts", including party political broadcasts, since no complaint was made in respect of news and current affairs coverage.

In practice, however, the effect of the Coughlan judgment seems to have been to create a situation in which broadcasters feel constrained to give 50% of air time to both sides of a referendum campaign. If this is so, it is not because of the Broadcasting Authority of Ireland, BAI, or its codes. The current edition reads:

[T]here is no automatic requirement to allocate an absolute equality of airtime to opposing views during coverage of a referendum. However, the allocation of airtime must be equitable and fair to all interests and undertaken in a transparent manner.

Broadcasters should note that allocation of airtime is not the only measure of fairness. It will be necessary for a broadcaster to consider the range of ways in which fairness is achieved and to ensure that active consideration is given to ensuring its achievement whether through the selection of contributors, the scope of the debate, the structure of the programme, the make-up of audiences, the role of the presenter or through other suitable means.

Broadcasters should also note that a referendum debate is a dynamic discussion and the approach taken to airtime and to coverage in general is likely to evolve over the duration of a campaign.

David Norris (Independent)
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Good.

Pat Rabbitte (Dublin South West, Labour)
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It may be that, so far as political parties are concerned, the 50:50 rule creates a perverse political incentive to oppose constitutional amendments, given the almost guaranteed access to the airwaves that will follow. However, when it comes to a small and unrepresentative interest group, I am not sure that the same considerations would apply. If the same handful of individuals are seen and heard on every news and current affairs programme in the run-up to the vote, it may simply serve to demonstrate just how small and unrepresentative a group they really are.

I wondered aloud in the Dáil last week whether, in terms of public discourse on such a fundamentally important issue as marriage equality, we will have been damaged by the recent controversy in the medium and longer terms. It seems that this far out from the referendum, it may be no harm at all that these issues have been ventilated now. RTE has a crucial role in the conduct of public debate and remains fully committed to ensuring the full and free exchange of information and opinion on all matters of legitimate public interest. I stand by my position on drawing a distinction between my intruding in the management of any particular litigation file and my insisting that RTE in no way resiles from its obligation to discharge its public service duties under the Broadcasting Act. That is the critical factor as we prepare to put the building blocks in place for the ultimate referendum. Senator Ó Clochartaigh is not seriously asking me to intervene. Were I to do so in every litigation file or editorial decision of RTE, he and all those excellent young social science graduates from UCD writing scripts for the Sinn Féin Party would be after my garters.

Trevor Ó Clochartaigh (Sinn Fein)
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I did not know the Minister wore those.

David Norris (Independent)
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They would not make good garters.

Pat Rabbitte (Dublin South West, Labour)
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Senator Ó Clochartaigh is not seriously arguing that I should intervene. Political intervention in that fashion would not add to the debate. We rely on broadcasters to provide a forum for matters of public debate and, indeed, controversy and to ensure that, when these take place, the necessary level playing field is provided for all concerned.

Paddy Burke (Fine Gael)
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When is it proposed to sit again?

Paddy Burke (Fine Gael)
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Is that agreed? Agreed.