Vol. 324 No. 2
I move amendment No. 1:
In page 3, subsection (1), to delete lines 23 and 24 and substitute the following:
"`the Minister' means the Minister for Industry, Commerce and Tourism.".
This amendment merely changes the title of the Minister. When the Bill was published the Minister was Minister for Industry, Commerce and Energy.
As amendments Nos. 2, 3 and 4 are related, it is proposed to discuss them together.
I move amendment No. 2:
In page 3, to delete lines 33 to 35 and in page 4, to delete lines 1 to 3 and substitute the following:
"(1) In addition and without prejudice to any specific functions given to it by this Act, the Board shall assist and encourage by any means it considers appropriate the making of films in the State and the development of an industry in the State for the making of films and assist in the promotion and distribution of films made in the State and may engage in the establishment of a national film archive and in any other activity which it is empowered by this Act to engage in. Specifically the Board shall have as one of its primary functions the assistance and promotion of Irish film culture.".
All of us on this side of the House recognise that we are discussing two pieces of legislation which are interconnected and both of which are enabling pieces of legislation, enabling the film studio facility at Ardmore to be put on a more sound and effective footing and also enabling the film board to promote the making of films in this country by foreigners and by Irish personnel in all sections of the industry. It is not our function to tell the board how to do their job but it is our function to ensure that the board are not inhibited by this legislation from promoting an Irish film industry to the utmost. Accordingly, in this, the first substantial amendment to the legislation, we have tabled our amendment after consideration and after discussion with representatives of the film industry here.
During the Second Stage debate, Deputy Desmond and I referred to the considered and mature representations that had been made in respect of the legislation by three bodies — the film section of the ITGWU, the Arts Council and the Association of Irish Film Producers. In this section, where we are talking about the actual board and about what they can do, we believe that the acceptance of our amendment will not inhibit in any way the objective that the Minister has sought in bringing the legislation before the House in the first place. Undoubtedly, acceptance of the amendment would enable the board to do a certain number of things which are not possible for them to do at present. The Minister has considerable experience of semi-State companies having been set up in the past under restrictive legislation in terms of their functions and of Ministers coming back to the House subsequently either seeking additional capital or broadening the terms of reference to enable a board to do something that they were prevented from doing within the terms of the legislation.
There are two parts to this amendment. The first is at the core of what this whole debate is about so far as the Labour Party are concerned and so far as the Irish film industry are concerned, that is, the effective promotion of Irish-based personnel in producing Irish films for domestic and international consumption, with the maximum utilisation of Irish resources and in such a way that the expertise gained in the making of such films can be retained within the industry, to be improved on, to be developed and subsequently to be re-utilised in the making of further films. This is the reason for the amendment being worded as it is.
The House may recall that on Second Stage we talked in terms of a split in the direction of funding along the lines of 80 per cent of available funding going to Irish-type productions and 20 per cent going to encourage large international or multi-national productions. That 80-20 per cent split was one that was suggested by the industry, but we would be willing to talk in terms of various kinds of splits. I do not think that we would have either the necessary expertise or the finance to allow us to be hard and fast on any such split, but the ratio given is an indication of what might be the case. If we were to insist on, say, an 80-20 split, we would be intruding unnecessarily on the area of flexibility that the film board must retain for themselves; but there would not be any intrusion if we include this clause which makes it clear that the board should have regard to promoting an Irish film industry in the way set out and in a way that is not manifestly clear in the Bill as it stands. At the outset the board should be clear as to what they are enabled to do and as to what they are being encouraged to do.
The second point relates to a national film archive. During Second Stage the Minister indicated that he was not very keen on this idea. The archive is an integral part of promoting and developing an Irish film industry. There has not been any State assistance in this regard, but some very interesting films have been made here down through the years of the industry. The nature of the technology at that time has put much of that film material at risk. It is scattered in various libraries. Mr. Morrison, whom most of us will remember for his work on the films Mise Éire and Saoirse, compiled much of his material from primary sources and demonstrated the wealth of material that is available. We should ensure at the outset that the film board are not under any misapprehension as to their entitlement to promote and assist the establishment of a national film archive.
We are talking about enabling legislation. I got the impression from what was said on Second Stage that a very narrow interpretation of the legislation on the part of the film board in the future could preclude them from becoming involved in any way in helping to establish a national film archive. Accordingly, we have included that objective in our amendment.
I endorse what has been said on the amendment. As Deputy Quinn has pointed out, there are two aspects to the amendment; one concerns the promotion and distribution of films throughout the world. While there is a loose reference in the Bill to the fact that the board may engage in activities from time to time, which I assume would include something like this, it is not spelt out specifically. If we are serious about the film industry here we must realise that an integral part of that industry is the export of our commodity. We have for many years indulged in very strong export drives for our manufactured goods.
The film business has a very strong export potential. It is accepted that with the right atmosphere, circumstances and financial assistance we can become very good at this type of business so we should not lose sight of the export potential. Unless the board are conscious of that potential we are falling down badly on one very important aspect of this industry, or of any industry where, because of our size, we cannot hope to have a viable industry if we are to depend on internal consumption. There is no country big enough to rely totally on its own consumption because of the nature of filming. The USA and other large countries engaged in the film business are very conscious of the export potential of that business. They have very strong export drives.
The part of the amendment which is concerned specifically with the distribution and promotion of Irish films abroad is absolutely essential if we are to ensure the viability of this industry. It would be a pity at this stage if, when for the first time we are coming to grips with this industry and laying down some ground in legislation, this particular aspect of film making was overlooked. I fail to understand the reluctance of the Minister to include this, which ought to be a legitimate part of the activities of the board. He has shown himself to be very strong on the export end of his Department in relation to other areas. I see no reason why he should not be as concerned about the export aspect of this industry.
The part of the amendment dealing with an archive is also very important because while we are talking here we are losing out through neglect, lack of facilities and possibly ignorance. Many fine pieces of film which should be housed and looked after in a film archive are being damaged. This is something which cannot be deferred indefinitely because of the cumulative damage. Future generations will not look very kindly on us if we do not grasp the nettle now and provide the facilities whereby our children and our grandchildren can look back and view the progress made in the industry by the people who pioneered it.
The cultual and historical aspect of films is being lost in many cases because we have no archive. An archive is an integral part of the industry and it is an aspect of the industry which cannot be put back because of the cumulative loss which is going on all the time.
The third part of this amendment concerns the preference given to the Irish made product as against that made elsewhere. While there may be problems associated with our membership of the EEC other countries seem to be able to provide some protection to their national film industry. I see no reason why we should not attempt to do this. I am sure the draftsmen should be able to come up with some format which would get over this problem caused by our membership of the EEC. If we are to ensure the success of this venture and the State involvement in it, it is only natural to assume that the board would look more kindly at the national aspect of the industry as against that provided by outside agencies in relation to film making. This amendment has been put forward by people who are nationally minded, concerned about this Irish industry and its success in the future.
The Minister, as we know from the debate on Second Stage, appears to accept that Irish film makers should receive particular support and special encouragement from the board. Our quarrel with him at this stage is that we have a rather modest promotional amendment to the Bill but he is not prepared to accept it. Perhaps in his reply he will agree to accept it. A strong case can be made to the Minister that there should be some formal structure in the Bill so that some particular legislative encouragement will be given to the board to act in this direction. We find the Bill deficient in this regard. Trade unions involved in the industry and Irish film makers have a legitimate and entirely genuine view on this matter. The Minister should ensure that the board are given reasonably clear guidelines so that Irish film makers are given support. Where loans are given, we should ensure that the Irish sector of the industry have an opportunity to contribute to the work.
In our amendment we used the words "shall assist and encourage". I do not think we could have made the wording any weaker without making it devoid of meaning. We have used the words "assist in the promotion and distribution of films made in the State". We have not put imperative obligations on the board but we think it would be useful if guidelines were laid down. In this connection, I should like to mention the six guidelines contained in the legislation relating to Fóir Teoranta. They can give assistance to Irish industry along specific guidelines and providing an applicant meets the six guidelines set out in the Act he is likely to get a loan to stave off bankruptcy. We think it would be very useful to place a stricture on the board in this instance, even in the mild terms we propose here, to ensure that the board shall endeavour to discharge their obligations in this respect. The Minister has indicated his opinion and the view of his advisers in the preparation of this Bill that the Community might regard this as being an unduly protectionist clause. The Minister is experienced in such matters and he knows that whether one is arguing about the protection of the textile or footwear industry or the granting of special incentives to promote industrial development one can argue quite vehemently to the Commission that legislation on that line would not be contrary to the treaty or to the prohibitions contained in the rules of competition or to giving aid to certain sectors. I think the Minister is being unduly cautious in his reluctance to accept the amendment.
I should like to draw the attention of the House to the Danish Cinematograph Act as amended in 1977. That Act was promulgated on 7 June 1972 and amended on 8 June 1977. Section 11 of that Act speaks of "loans or guarantee for loans for the production of Danish films and co-produced films" section 21—I am quoting from Chapter 7 of the translation under the heading "Danish films and co-produced films"—states "for the purpose of this Act a Danish film means a film shot in Danish with predominantly Danish artistic and technical personnel". I am sure there is similar legislation in the other member states. As the Minister knows, the French are adept at giving special privileges to their own industries and this has been particularly evident in the cultural area. I have no doubt the Commission would be prepared to accept the rather weak preferential clause in the legislation we are discussing here today. We deliberately worded our amendment in this way because we consider that while there should not be a total and absolutely rigid obligation on the board in this respect nevertheless it is desirable that they should have a finger continually pointed at them. We consider our amendment would be useful.
I am a member of the Joint Committee on State-Sponsored Bodies. In examining the dozen bodies that have come before the committee, it has struck me frequently that the legislative framework dealing with the establishment of the bodies has been rather weak, generalised and even vague. In some cases it is practically open for a coach-and-four to be driven through it by the boards concerned. I think this has been because of the lack of coherent thinking when the bodies were set up and a lack of precision on the part of legislators when they came to consider the Bills going through the Houses of the Oireachtas.
I am not proposing that this Bill should be inward looking. I think there should be an opportunity to develop the Irish film industry on a self-generation basis with assistance from the board.
We have also referred in the amendment to assistance in the promotion and distribution of films made in the State. I do not think the Minister would cavil at that. We are merely asking that such an obligation should devolve on the board. It is not emphatically directive in any way but it is a useful guideline which is essential in the national interest. On occasion boards are set up which have a spectacular director general or chief executive who will go for the large kill and very often an international producer-speculator arriving in Ireland is clasped to the bosom of the individual most anxious to make the biggest possible name for himself in the shortest possible time. That is, of course, spectacular but in the long term it is not conducive to the development of an Irish film industry or the production of work which will have a lasting impact on the native industry. Very often such ventures are not very lucrative for the board itself.
One of the big problems is that of film distribution. If the Minister examines the guidelines given to CTT in the establishment of the Irish Export Agency he will find that this is a mirror image, the purpose of CTT being to assist firms in the promotion of exports. There is nothing particularly novel in this amendment. I strongly believe that limited State support, carefully controlled and without overtones of massive subsidy or massive hand-out, can give individual Irish producers a shot in the arm in the establishment of a distribution system for their work. One of the major roles of the board should be to establish contacts with major distributors throughout the international circuit, to ensure that full information is available to Irish producers and to give basic services and facilities to them. In so doing the board would give valuable assistance in the promotion and distribution of films made in the State. Such is the nature of production costs in this industry and such is the limited market here that unless these films achieve at least a reasonable segment of the international distributive market they have not a hope of breaking even.
Our amendment is reasonable and carefully phrased and we urge the Minister to consider it. It would be of major national importance if some consensus could be reached in the House on this Bill. If the Minister finds any part of the amendment unacceptable or ambiguous we would be willing to re-submit it on Report Stage, but the basic import and principle in the amendment would still stand. We look forward with interest to the Minister's reply.
This amendment is a substitution of subsection (1) of section 4 of the Bill with certain additions. Three points have been added, but before dealing with them I wish to draw the attention of the House to the nature and wording of subsection (1) as it stands because it seems to have been ignored to some extent. It is deliberately drawn in very broad terms and virtually nothing is excluded from it. It is stated that the board shall assist and encourage by any means it considers appropriate the making of films in the State. I cannot envisage, and the parliamentary draftsman cannot draft, a broader, more general and more all-embracing sentence than that. Within reason, the board is allowed to do virtually anything it sees fit in its wisdom to do.
Deputy Quinn made the point that experience had shown that some of the legislation passed in this House over the years setting up semi-State bodies had been found to be defective in that it was too restrictive or limiting on the boards concerned and that it was necessary for Ministers to come back to the House from time to time to extend their powers. This is true and there is no doubt that 20 years ago the thinking was that we should restrict the powers of these boards. There was a certain jealousy about the setting up of the boards and the extent of the powers they should get. For that reason there are very considerable restrictions, even in an Act as recent as the Export Promotion Act, 1959, which set up CTT. There are an enormous number of restrictions which we have discovered in recent times and many things which CTT would like to consider doing are in some doubt, even though they might be obvious things to the average observer.
I do not think anybody here today, 21 years later, would have any objection to an export promotion board doing such things but, because that Act — and I take that one specifically — was drafted in the kind of way that the proposers of this amendment are asking us to accept now, those difficulties have arisen. On the other hand if the Export Promotion Act, 1959 had been drafted as subsection (1) of section 4 of this Bill is drafted then there would not be any problems. The same applies to many other organisations. Perhaps the proposers and those who inspired them may not realise that from everybody's point of view the broader the drafting the better it is from the point of view of the board concerned or the company concerned or the industry which they are trying to help. This is true in something like the film industry because it changes quite rapidly from year to year and what might be appropriate in 1980 as we discuss and pass this Bill might be quite inappropriate in 1985 and might be positively harmful by 1990. But under this subsection as drafted any developments in any direction in regard to how the industry might more beneficially be assisted and promoted are catered for.
Having made that general point, which I suggest to the three Deputies concerned is a valid one—and they should accept it—I come to the specifics of what they say. Their amendment can be divided into three parts because it adds three bits to the subsection as it is here. The first one is that the board shall assist in the promotion and distribution of films made in the State. That is the first part of the new part; that is essentially the amendment, I dealt with this the last day in my reply to the debate on 16 October:
There is a great danger that if the board were to set themselves up as a distributing board also and take over responsibility for distribution they would have landed on their doorstep many films which may not be easy to distribute in the difficult world of film distribution. In such a case if a film was not distributed successfully the board would be blamed. Film distribution is not like selling an ordinary commodity; it is a very specialised and narrow area which is controlled worldwide by a small number of companies. It is not the kind of area in which an Irish semi-State body would necessarily be successful for quite a while.
What I said then holds true now. I would not be prepared — and I think the House on reflection would agree with me — to impose from the start a statutory obligation on a board such as this to distribute throughout the world films that are just planked on their table. What I would envisage is that they would give every assistance that they can. I would hope they and other people in Ireland in the semi-State bodies who have some experience and have had some limited success at least in terms of worldwide distribution will help. They are the NFSI and RTE. Certainly this board will co-ordinate all these efforts. But it would not be appropriate to have in this section the phraseology used here, "shall assist in the promotion", because if they are handed a film which they say is not capable of distribution outside the country it will be open to the producer of that film to go to the High Court and seek an order compelling the board to exercise their statutory functions. For example, CTT are not obliged to assist every exporter who comes to them. If they look at his case and decide his product is useless they will tell him to go away, that there is nothing they can do about it. It would be otherwise under this amendment and it would be unreasonable. Distribution is a very difficult area. There is no question about it. It is important that the board should seek to build up expertise and experience and contacts in respect of this area at the earliest possible date but I could not accept, and I am sure the House on reflection would agree, that I could not accept a situation where they were statutorily compelled to distribute films right from the start. There was no such provision in the Film Industry Bill, 1970, and it was never really suggested until very recently when some people saw that it might be an easy way out of a difficulty that obviously smaller producers of films would have.
The second part of this amendment, the new part, relates to the question of a film archive. I made some references to that on the last day too. I said:
Again while I recognise that the establishment of a film archive has merit and that this is another matter which the board will have to consider, I feel nevertheless that there should be no statutory obligation on the board to get involved in this area at the very start. The establishment of an archive could be fairly expensive and could present certain technical/administrative difficulties and therefore I feel that it would be more prudent to await an in-depth study of this whole question. In my opinion, the main preoccupation of the film board should be to get films made and if they become too deeply involved at an early stage in ancillary matters, it could have a detrimental impact on their operations.
Again I do not see any real need to revise that view. Quite clearly the board, under the general powers given to them in this section, have the power to establish a film archive. There is no question about that. It is a question of whether or not to put a specific statutory obligation on them to do it. If, for example, when they were established they felt they should not start spending a large sum of money setting up an archive in the first two years, should we put them into a situation where they can be compelled by somebody who wants his films stored to establish an archive? I do not think so. The board should be allowed to exercise their judgment independently on that, and with the very limited amount of money that inevitably will be at their disposal to establish in the general interests of the industry a reasonable order of priorities, and since their main priority will be the making of films, I do not think it would be appropriate to put this obligation on them as a statutory obligation because there is no doubt that however desirable this might be, and I suppose we all recognise that, it is very much an ancillary activity from any stand point, a kind of a luxury item to some extent compared with the necessity to get films made and to give employment and so on.
On the other hand, this part of the amendment is drafted differently because it says they may do it and it is of course unnecessary for the section to say they may do it because the general clauses of the section enable them to do it anyway. But because it says "may" and to show my goodwill I am not prepared to say no to it. It is meaningless and unnecessary and a bit prolix but I have often accepted prolix and unnecessary amendments to show that I am not being unreasonable in regard to them. Because it is worded differently from the earlier part of it I am prepared to accept it. I hope I am not offending the draftsman's good sense of drafting but I am prepared to accept a prolix amendment because it does not add to anything that is already there and it does not create an obligation on the board. They have, of course, full power to do it.
The third part of this amendment is the last sentence in it, "Specifically the board shall have as one of its primary functions the assistance and promotion of Irish film culture." I am sure a bevy of lawyers—six or eight of them one must employ nowadays if one goes to the High Court, two Senior Counsel, one junior and one solicitor on each side—would knock a few lucrative days out of arguing about that sentence, because I cannot imagine anything more vague. I am disappointed that my friend, Deputy Kelly, is not here today because he would be very eloquent about this one. He was very good on Second Stage at deriding the whole notion of what is contained here. I do not agree with all of what he said, but some of what he said was relevant to this. I am sorry he is not here today to deride it on my behalf. It is hopelessly vague and likely to create some problems for us within the Community.
I made the point at some length in my opening speech on the last occasion that of course Irish film producers will get considerable assistance from this board; that was one of the principal reasons for setting it up. But the board will have to be given reasonable discretion to exercise their independent, commercial and artistic judgment. I am not prepared in advance to tie down the hands of any board so that they have to do specific things. Irish film making, like any other Irish activity, should rise or fall on its merits or abilities. I am not prepared, and I strongly advise this House not to direct by statute, any board to devote a high proportion of their very limited resources to specific projects thereby directing them to devote a very low proportion only to certain other projects.
I have discussed this matter with various interests in this industry. There is by no means unanimity in regard to the point made. It comes from a very limited circle indeed. The board will administer what is essentially a circulating fund. The nature of a circulating fund is that at least some of the investments will have to be able to show a sufficient profit to maintain the size of the fund for the benefit of everybody. It would defeat the whole purpose of the fund, and therefore of the board and of the legislation, if a situation were to obtain in which the board were forced to invest a high proportion of their money in activities not likely to prove commercially viable. It is not in anybody's interest to do that because the fund would be extinct within a very short time. What I would hope to foresee is a judicious mix of, hopefully, commercial and profitable activities with ones which are likely not to be commercially viable or profitable. In that way the profitable projects will carry the unprofitable ones to the benefit of everybody. On reflection I think people will accept that that is the obvious and only way to do it. That is the way such funds have been utilised in other countries, and with some success. One must mix the commercial successes with the others for the purpose of developing an industry.
Also one cannot disregard the interests of the National Film Studios of Ireland, the next Bill on the Order Paper. Unhappily that studio has been commercially and financially very unsuccessful over the past number of years and has been losing over £500,000 a year. It will not continue to lose £500,000 a year because, if it does not get straightened out very quickly at least in part as a result of this legislation, I shall, as they say, pull the plug. I do not see why the taxpayer should continue to lose more per annum on this operation than I think the place cost the first day——
That is, provided there is not a by-election in Wicklow.
It is quite an unacceptable situation that cannot be allowed continue. Therefore, one must bear in mind the needs and interests of that studio in relation to this Bill. The making of short, non-commercial type films and their predominant funding from this fund will be of no use whatever to that studio. As I see it, that studio is now on its last chance and, if it does not work, will have to be closed down. There is absolutely no point in keeping it if it is going to continue to lose very large sums of money. For that reason I cannot at all favour the third part of this amendment.
I hope I have dealt fully with all of the points raised. I have endeavoured to explain my view in regard to them. On reflection I think Members of the House perhaps should agree that it is a reasonable, open-minded approach.
The Minister has been more than forthright in his expression of his view on this matter. I would suggest that this is the principal amendment on Committee Stage. The remaining amendments are consequential or of no real significance by comparison. This is really the gist of the two divided opinions.
I accept fully what the Minister has said in relation to giving directions in regard to the day-to-day operations of any State company. But the House has an obligation to endeavour to define the operational policy or objectives. How they are best achieved is, obviously, a task for the day-to-day and indeed year-to-year management. It would be a grevious mistake for this House to try to replace that kind of task — which is outside the Legislature — by statutes and restrictions embodied in enabling legislation. But equally it would be an abdication of our democratic responsibility at the outset not to set some clear, overall objectives towards which this film board should strive. Otherwise we might as well delete the word "Irish" and call it merely the Film Board Bill. Why bother to call it Irish, because they could be making films for anyone and everyone with the rotating fund of £4.1 million? If we were lucky, then every so often we might get a little bit of Irish film culture — to use the phrase incorporated in our amendment — gratuitously promoted.
We are concerned that there is not sufficiently clear direction in the Bill about objectives. I accept fully what the Minister has said about subsection 4 (1), which is a very general, enabling subsection. We do not want to take in any way from its generality or flexibility. We want simply to add an aspiration, or a direction, to the incoming board, something that this House decides rather than the informal, though written, directives from the Minister when the board is established. Those are the kind of behind-door directives from the Minister of the day to the board which certainly I do not accept as an acceptable alternative to this House democratically voting, openly and publicly, on the kind of aspirations it has for the creation of an Irish film culture. That is at the core of where our difference lies.
Let us take the three sections as the Minister has divided them. I do not think there is any disagreement on the first part, providing for flexibility in the operation of the film board and enabling them to decide how best to achieve an Irish film industry relative to the state of the market and the state of the art. I think the Minister has accepted, in principle, the question of the national film archives, I did not hear the adjective he used but he more or less implied that we were gilding the lily, since the board are enabled to do everything which included the establishment of a film archive and, therefore, it was not necessary to include it. We have used the phrase "may engage in the establishment of a national film archive" simply to suggest as legislators to the incoming members of the board that this is something they should consider. We are not putting any specific obligation on them to do so but you cannot talk in terms of an Irish film culture without a film archives being established. It appears to us that this body, when established, would be the appropriate body to take some part in its establishment and, consequently, we make reference to it in the only way we can, as legislators. I accept that we are not putting an obligation on them but we are saying this is one of the things they should consider. I accept that the Minister has, in principle, subject to its being suitably redrafted accepted this second point of our amendment and I thank him.
The last amendment is what this is all about and that is specifically the board shall have as one of their primary functions the assistance and promotion of an Irish film culture. The Minister is a professional lawyer, I am not going to argue about the legal interpretations, if he has certain reservations we will accept, through the Chair, an amendment. Since we cannot interfere in the day-to-day running of a semi-State body, since we cannot as legislators write directives from the Department of Industry, Commerce and Tourism to the new members of the board stating how the Department of the day see the promotion of the Irish film industry, the only way we can as legislators try to give some direction which is not a directive and therefore not something that limits the flexibility of the film board but undoubtedly guides them in the direction we think they should be going, with our money, is to include a clause like this. I do not see any alternative and, if the Minister was on this side of the House, he would be arguing exactly as I am arguing. There may be defects in the specific wording of the last sentence, if so let us come back on Report Stage and deal with it.
I have no desire to increase the fees of the legal profession or to clutter up the courts; that is not the intention of the amendment moved by Deputy Desmond and by me, but the amendment is quite specific in that it does aspire in an enabling section setting out the terms of reference of the incoming film board, that they should have as one of their primary functions the assistance and promotion of Irish film culture. If we, through the Chair, take that away from this legislation, it will have no impact and leave no imprint on the way that an Irish film industry should develop. We would be at the mercy of the Minister of the day who, in turn, would be at the mercy of the Minister for Finance of the day in relation to the funds that can be made available. Therefore, we in the Labour Party have a very clear obligation to set out some aspiration as to what one of the primary functions of this board should be, as set out in the legislation, not set out in the speeches on Second Stage and Committee Stage. If it is tested in court the last thing that the lawyers will do is refer to the speeches made in the Oireachtas when the Bill was going through. They will stick with the printed word in the legislation and what was decided, not on what was talked about, so we do have this obligation.
The reason we are sticking with this point is precisely because, in the past, semi-State bodies have not been as responsive to the Oireachtas as we would like. The whole relationship between semi-State bodies and the Oireachtas is an unhappy and uneven one. We have the recent experience of NET and the Joint Committee on State-Sponsored Bodies and the whole question of how the operation of the public sector on a management basis can operate effectively at one level and what the inter-direction between that management is with the role of the Oireachtas, who ultimately have to foot the bill when things go wrong. Accordingly, there should be no blank cheque in the terms of reference given to this film board, nor can there be specific requirements built into the legislation that confine them from the start, but a clear aspiration should be written into the terms of reference and I regard section 4 as being the terms of reference for the board in relation to the establishment of an Irish film culture. If we are simply interested in having films made here then the whole paraphernalia of the film board is unnecessary. It could be done without taking up the time of the House, by very attractive legislation of fiscal measures carried from one budget to another, by grants and tax write-offs and there would be no need for an Irish film board, as such, to promote and develop the film industry. Since the embryonic industry is clearly very anxious to have more than that — they have waited for ten years to debate legislation — surely we should embody in some shape or form the aspiration which we have attempted to put down in the amendment. As the Minister knows, this is an amendment initiated by the industry itself and which we have been honoured to promote and move in the House. If the Minister has arguments about the technicalities of the amendment or if he is worried about a legal interpretation that may cause difficulties which we do not foresee, we can continue talking on that basis but we do not think we are restricting the board. On the contrary, we are giving the board a very clear impetus to get on with the business of promoting an Irish film culture.
The Minister made the point that section 4 (1) as drafted was very broad, very flexible and included any possible combination of approaches that might be made by the board, for the good of the film industry. I accept that, for example the reference that it is considered appropriate to make films in the State and to develop an industry in the State. I know and I accept that the Minister would personally ensure that the best interest of the Irish film industry would be served through the directions he would give.
While there is merit in having a broad subsection — and this is the crunch section as far as the industry in concerned — all other aspects of this Bill are consequential and, indeed, peripheral to the industry. This is the establishment of the board and the definition, or finding, of their functions. While in that definition of functions, any restrictive measures ought to be looked at attentively, we must be careful to specify functions since, because of this flexibility — and the Minister must accept this argument — while they can do anything they wish as they see appropriate, they need do nothing. That is the logic of the thing. That is the reverse side of the coin.
As the Minister also knows — and he mentions solicitors and senior counsel having a field day on certain aspects of the amendment — we are not talking here about the spirit of the law. In this country, in so far as I know — and I am not in any way legally trained — the courts decide on, and make judgment on, specifics, on what they see in print in front of them, not on the underlying spirit of what might be said during Second Stage or Committee Stage debate. We are talking here about a very flexible section which can lead to great things. But, on the other hand, all that we are asking — and I am fully in accord with the terms of the amendment — is that the specifically Irish film industry would be recognised for what it is at this stage, when legislation is being introduced.
If, at this stage, the Minister is worried about the "shalls" and so forth which would indicate a legal obligation, surely there is nothing wrong with having the amendment redrafted on Report Stage to show a definition of, for example, development of an industry to include the promotion and distribution of films.
Finally, the Minister would seem to have accepted the notion of an archive. I am sorry that he uses the word "luxury" in relation to an archive. We owe it to future generations to preserve in such an archive anything worth preserving. That is not a luxury; it is an absolute necessity if we are to take this industry seriously. The reluctance on the part of the Minister to write into the section a specific reference to the preference which would be given to the Irish film industry or Irish film makers is puzzling. Overall, surely the board, in dealing with and distributing public funds, must give serious consideration to this aspect? Naturally, they are not going to be associated with anything which can be shown from the very beginning to be a waste of time, effort and public money because they will then be castigated for it and will not be carrying out their functions as a board using public finance. All that is being asked is that, where appropriate and where the board think fit, they would give preferential treatment to Irish-made films. Surely the section as drafted, which concerns itself with the development of the industry, would include or must include, if we are serious about it, this kind of approach, if we are to expand and improve the expertise and the artistic and technical field in this industry? That is all that is being required. I fail to see why there is such reluctance on the part of the Minister to include this. Probably it is his legal training. He sees snags where I do not. Surely, it is not beyond the bounds of possibility for his draftsmen to produce a format that would ensure that those legal snags would not arise?
I have nothing to add to what I have already said. I have dealt with all these matters in great detail and have dealt openly and fairly with them. In relation to what Deputy Quinn has said now, unfortunately his second contribution made no reference at all to what I said. It was, as it were, made de novo. Probably he was not here for most of what I said. It is more useful, I find, on a Committee Stage debate, to discuss one another's contribution, rather than make these de novo speeches out of the blue. A lot of the points Deputy Quinn made the second time, I had dealt with in what I had to say.
I have already indicated that I am prepared—on the basis that it is a non-binding reference—to draft an amendment for Report Stage referring to a national film archive. Incidentally, I propose to have that amendment drafted myself, in order to be satisfied with the wording of it. I am prepared—if the draftsman is able to dream up and put into words some form of non-binding reference to an Irish dimension, shall I say, in relation to the film industry—to put in some form of reference of that kind, but only on the basis that it is not binding on the board. I am not going to tie the board's hands to specific percentages or anything else. The point made by both Deputies that this amendment, or the principles underlying it, is the request of industry, as it is described, is not correct.
Unfortunately.
I have met a portion, but quite a narrow portion and I have met several sectors of it, some as recently as a couple of days ago, and it is the view of certain sectors of the industry that this type of amendment is quite undesirable and would be unworkable and unnecessary. The House should not mislead itself in that respect because there are very definite differing views. I have gone as far as I possibly can in this regard. I hope that the House will accept that and, in the circumstances, that this amendment would be withdrawn on the basis that I am bringing forward what I have referred to on Report Stage.
In the light of the progress which we seem to be making on this, at this stage we shall not press our amendment to a division, but certainly we look forward on Report Stage to having an opportunity, preferably some time in advance of Report Stage, of examining the content of the suggested ministerial amendment. I do not want to labour the point unduly since we have been discussing it for over an hour, but we very strongly, and in all earnestness, say that the sixth line drafting of the general functions of the board is, to say the least, very bald, very terse and very inadequate.
There is no doubt that on reflection these could be broken down into three or four component parts. On Report Stage that section could be usefully rephrased. In the rephrasing I do not think the Minister should be unduly swayed by some of the more esoteric comments of our colleague, Deputy Kelly. There is a thing called an Irish film industry, although as yet it is very much in embryonic form. Even back to my student days in Cork when I met people like Louis Marcus, there was what was called an Irish film culture. I do not think we should confuse the obsession or preoccupation of Deputy Kelly with certain nationalistic aspects of Irish life with our national culture. In my view Deputy Kelly has become bemused by this. In fact, he is enjoying it with a rare sense of self indulgence and humour. It is all very titivating in a legislative sense, but it is also likely to divert us from the most serious aspect of trying to ensure that we should have an Irish consensual approach to this without being excessively preoccupied with the narrow irrelevant areas mentioned by Deputy Kelly on the last occasion.
The Minister should not be preoccupied about what the Community might think of the drafting. I am aware that the Minister on Second Stage told us he had not submitted the Bill to the Community and that they wanted to know the procedures to be adopted in the event of the Bill being passed. It is useful that the Minister intends having a second look at the section. In the light of that we will not press our amendment to a division, because we are anxious to get all-party consensus on this matter.
The Minister, in drafting his amendment, should think hard about the distributive aspects referred to in our amendment. It has some sense. I do not think we would be imposing High Court judgments on the future of the board if enabling guidelines were developed on the board in this regard. An acceptance of an amendment along the lines suggested by us would certainly prevent the board gaily deciding what they wanted to do without reference to the Legislature. We have a right, an entitlement and an obligation, when it comes to the growth of an industry or the expenditure of taxpayers' money, to ask the board to move in a certain direction. We would like the board to move in the tripartite direction outlined in the amendment by way of assisting the promotion and distribution of films, dealing with the question of the archives and the basic question of the making of films in the State. We look forward to a change of mind by the Minister in that regard on Report Stage.
I move amendment No. 5:
In page 4, line 42, to delete "the techniques and processes" and substitute "all aspects".
It is proposed to replace the words "the techniques and processes" in the present text by the words "all aspects". This was discussed on the last occasion and I undertook to prepare the amendment on the lines submitted. Apparently, it is felt that the existing wording could be interpreted as being confined to the technical areas of film making. I do not think it really changes anything fundamental but it makes some aspects clearer.
Amendment No. 6, in the name of the Minister, proposes the insertion of a new section which would mean the deletion of the existing section 9.
I move amendment No. 6:
In page 5, before section 9 to insert the following new section:
"9.—Where a term or condition subject to which an investment, grant, loan or guarantee made or given by the Board under this Act is contravened by the person to whom or on whose behalf the investment, grant, loan or guarantee is made or given, any amount owed to the Board in respect of the investment, grant, loan or guarantee (together with the interest payable on it) shall, if the Board requests repayment of the whole or part of the amount, be deemed, to the extent of the request, to be a debt payable forthwith to the Board and may, to that extent, be recovered by it as a simple contract debt in any court of competent jurisdiction.".
The text of section 9 has been re-examined in consultation with the parliamentary draftsman in the context of sections 6, 7 and 8 and it is felt that section 9 could be made more precise by the addition of specific references to investments and grants where appropriate. This will include possible contraventions of terms and conditions in respect of investments for grants by the board.
I should like the Minister to outline in detail how he sees the operation of this section which is, in a sense, the second core of the legislation. We are talking about a capital sum of £4.1 million, the maximum amount of money which at any one time will be made available by the film board to those deemed worthy of support by way of loan, grant or investment. Obviously, that figure was not taken at random and presumably it relates to part of the detailed study provided by the consultants referred to by the Minister on Second Stage. Will the Minister sketch out for the benefit of the House the kind of split he sees? The fear has been expressed to us that if an investment is made in a film—for argument sake £250,000—and the recoupment of that investment takes a certain number of years that amount of money is frozen out of the residual capital sum until such time as it is all repaid. We are worried about the mechanics of this. It will be easy to exhaust by way of grants, loans or investments the capital sum having regard to the cost of medium sized feature films. At one stage we were saying we would like to have enabling legislation which would be as broad and as flexible as possible for the film board. In section 10 we are being very specific about the amount of money they can spend. Obviously the sum is based on a figure which is the consequence of study and research. I should like the Minister to say how he sees this operating.
The £4.1 million will be put in over a four-year period. I think the figure for the first year is £1 million, or the figure asked for is £1 million. What it will be remains to be seen.
The management of the money will be a matter for the board. This Bill does not set out various limits as, for example, industrial legislation does. It tries to allow for a certain flexibility. Obviously one would not envisage the board putting all their resources into one film. Clearly they could not and should not do that. Equally I do not think they should spread it too widely. It is hard to lay down hard and fast rules in advance. The board will consist of responsible, competent people and they will have to judge that as the situation arises. I am confident that they will make the right type of judgment.
For argument sake, if the board give a grant of £200,000 to film Y, does that effectively reduce the operating capital to £3.9 million?
If it is a non-repayable grant I suppose it does. There is a wide variety of methods whereby assistance will be given. One would envisage non-repayable grants in certain circumstances. I would see it as being much more likely that the board would make an equity investment in the film or would give a repayable loan to be paid back out of the proceeds after distribution. I would not see the non-repayable grant as forming any significant part of their activities because that would have the effect of reducing the fund.
The board are empowered to pay grants but I would see their activities mainly in equity investment in the film and in loans where appropriate. The financing of films is a very complicated matter. One should seek to allow them the greatest flexibility. I know something in a peripheral way about how some recent films were financed here. It is incredibly complicated. Obviously we will have to have on the board some people who understand how this system works. They will be able to deal with it. I would not see grants as being a major element. I would be rather inclined to think that grants will probably be confined to ventures which will not make the grade commercially but will have certain artistic merit in them.
The Minister has clarified that point. It raises a certain worry but obviously the board will realise that and respond accordingly. I want to ask two specific questions. The first is how was the figure of £4.1 million arrived at? Secondly, in view of the fact that the Minister referred to the probability—without preempting what they will do since they must rotate this capital fund and cannot erode it by way of grant—that they will have to invest in some form of equity participation, surely this underlines and strengthens the argument for involving the board in some system of distribution. If they are not involved in some system of distribution they will have no way of assessing the revenue earned by the film and consequently what their full equity share would be.
Like the Minister I concede fully that the financing of the film industry is complex and is probably matched by the complexity of the percentages from films in the distribution world internationally and particularly in the English speaking areas where many of these films will be going. This reinforces our exhortation in our first amendment about the need for an inter-connection between the promotion and distribution of this money by the board.
The Minister indicated that £4.1 million will be at the disposal of the board and that perhaps in the first year £1 million will be at their disposal. He seemed to imply that the £1 million might not be available to them. Perhaps he would qualify that remark. If and when the Bill becomes law, could the board draw on the whole £4.1 million if they needed it and if they thought the best interests of the film industry would be served by drawing on the whole sum? Will he guarantee that the money will be available to the board if and when they need it?
There will be no question of their drawing on the whole £4.1 million immediately. It is envisaged that it will become available over a four-year period.
If they need £1 million in the first year will it be available to them?
I hope so.
Is there any prospect of the £4.1 million being increased in the light of inflation? By the time this Bill is enacted and signed there will be further inflation. It is a rather odd figure to put in the Bill. I would have rounded it up to £5 million. I know we are handing out gaily more of the taxpayers' money every day. To set the board off on the right foot it should be £5 million to take inflation into account. We are adding on 18 per cent for this year alone. Will the Minister have a look at this before Report Stage?
I will.
Is there some magical origin of the £4.1 million?
There is apparently. It is getting less magical as time passes.
Perhaps we need Deputy Kelly to elicit whether it concerns Darby O'Gill or some other person. Is the Minister in the position to describe the origin?
It is based on a recommendation of the consultants, Little's, with certain things added to that.
That is about two years old.
Amendment No. 7 has been ruled out of order.
I move amendment No. 8:
In page 6, to delete lines 37 and 38 and substitute the following:
"(7) The quorum for a meeting of the board shall be not less than half of the total members of the Board.".
I am still serving my apprenticeship in this House. This amendment is consequential on amendment No. 7 which has been ruled out of order. I accept the ruling of the Chair but I do not know why it has been ruled out of order. You cannot have half of seven constituting the quorum of the board unless you are really into the acting business in a big way. Amendment No. 8 is nonsense if the board is confined to an uneven number of which not less than half shall be a quorum. Would the Chair direct us as to why increasing the board's size from seven to nine was ruled out of order, It is not a financial charge.
It involves a potential charge on the Revenue.
As the other amendment was ruled out of order and this is consequential it should fall with it.
I think so too but my brief does not say so. Is the amendment withdrawn?
I move amendment No. 9:
In page 11, line 12, after "appropriate," to insert "other than in areas of artistic consideration.".
Deputy Quinn and I are interested in having a response from the Minister on this. The only personal experience I have in this area is when we on Dublin County Council gave a grant to the Olympia Theatre, and likewise when Dublin Corporation gave it, and when I became a director of that body at that time. We felt that this was an area where we should preclude ourselves from exercising a directive function. It is a matter of cultural hygiene that the Minister of the day should, in relation to the performance of his functions in matters of artistic consideration, exclude himself from that area. As the Minister knows, pressures of a negative nature can arise. I am sure this view is shared by a number of responsible legislators so we put this amendment forward for consideration.
I would hope that directives given would be of a general nature. In order to clarify my point I will refer to column 1667 of the Official Report of 13 December 1979 where the Minister for Industry, Commerce and Energy said in relation to the vote for Industry, Commerce and Energy:
The film industry generally of its nature is not one for which a public-type State board is necessarily the most suitable. It is an imaginative, innovative type of business where artists and people of originality get strokes of genius and tend to come to the top rather than people who want a steady 9 a.m. to 5 p.m. job with a pension at 60 or 65 years of age.
In dealing with people who get strokes of genius we must be sensitive because these are sensitive people. I am concerned that directives issued by the Minister might inhibit these so called strokes of genius in their implementation. In dealing with artists one must be careful not to upset the artistic balance or inhibit the kind of work they do. Many of them deal in abstractions and to the ordinary individual it may be difficult to see what they are getting at until the picture is finished. I use that illustration both literally and metaphorically.
It is still sometimes difficult to see when the whole picture is completed.
These people of genius may still be making a point which is more easily seen at the end of the day. Any kind of restrictive directives might inhibit the development of genius. For that reason the amendment comes down on the side of freedom in this area. None of us is expert in this field. As the Minister said, it is a specialised area. While the Minister must retain control over expenditure of public money, as guardian he must have a certain flexible approach in this case in the operation of the Act. In the area of the pure artistic atmosphere, academic freedom or artistic freedom should be seen as a first consideration.
In referring to this section I take a more serious view of it than my colleagues, Deputy O'Toole or Deputy Desmond. This section gives the Minister of the day too much power. We know that the present Minister would not abuse that power but he could be succeeded by another Minister in another Government who would use that section——
We are dealing with the amendment. We have not reached the section as such yet. Is amendment No. 9 withdrawn?
I wish to hear the Minister.
I have no great objection to the principle of this. I have no great interest in the actual content of the film and I am not really in a position to make judgments about it. I have no objection to putting in an amendment which would avoid any purported directives being given in relation to the artistic aspect of films. I do not think it would ever arise because I do not think they would be given. As an example, one might envisage the possibility of some public demand for such a directive if somebody was to come along and run a camera in front of a blank wall for two hours and then sell that film as a work of genius. I suppose in the world we live in today that is not impossible because Dublin Corporation spent £20,000 of public, taxpayers' money on something like that.
It was not a blank wall, it was a blank canvas.
I do not know whether the public would feel that I should give a direction that somebody was not to be helped to roll his camera for two hours in front of a blank wall. However, I hope that that will not arise. I am prepared to accept the principle here and I will put in an amendment on Report Stage. The wording of the amendment is not very good. It is too vague. I would prefer it to refer specifically to the content.
I would like the Minister to indicate in what direction the Minister of the day would give directions. I feel that section 31 gives any Minister too much power. As I have said, this present minister would not abuse that power but in some future Government some very militant Minister for Industry, Commerce and Tourism could avail of the power in this section to take complete control of the board and they would have to comply with any directions given. It could be martial direction, it could be militant. The Minister of the day could have his own crazy ideas and he would be empowered under this Bill to instruct the board to carry out his directions. Perhaps the Minister would give us his views.
I dealt with that point as reported at column 49, Volume 323 of the Official Report on 15 October 1980 and the various points are set out there. There is nothing unusual about this. This section setting up boards is in every Bill and you have to have a situation where the Minister can give general directives. The power is very rarely exercised, but the Minister is answerable to this House and the board, therefore, must be answerable to him and he must be in a position to lay down broad lines of policy and leave it to the board to implement it and work it out on a day-to-day basis. The kind of directives that would be given would be the sort of things that I have been saying, for example, in the course of these debates there, and the manner in which they would be delivered probably would be a speech that I would make at the first meeting of the board, which would be couched in general terms laying down these general guidelines. Of course, the basic guidelines are the Act itself.
I move amendment No. 10:
In page 3, line 9, after "TO PROVIDE" to insert "INVESTMENTS,".
This is consequential on one of the earlier amendments which referred to investments. The text of the long title has to be re-examined in the context of section 6 which provides that:
(1) The Board may invest in, or make a loan or a grant to defray in whole or in part the cost of the making of, a film....
On the advice of the parliamentary draftsman it is felt that the long title could be made more precise by the inclusion of the specific reference to investments and that word is inserted.
