Amendments Nos. 1 to 5, inclusive, are related and may be discussed together by agreement.
Broadcasting Bill 2008 [Seanad]: Report and Final Stages.
I move amendment No. 1:
In page 12, lines 24 and 25, to delete all words from and including "for" in line 24 down to and including "viewer" in line 25 and substitute the following:
"in a non-linear manner where each user of the service".
This is a minor amendment to the definition of a broadcasting service contained in section 2. The amendment aims to make it clear that non-linear audio visual and audio services, for example, podcasting services, are excluded from the definition of broadcasting services, thus ensuring a consistency of approach as between non-linear audio visual and audio services.
I move amendment No. 2:
In page 13, between lines 8 and 9, to insert the following:
""director general" means a person appointed as the director general of a corporation under section 89(1);”.
I move amendment No. 3:
In page 14, line 6, to delete "6” and substitute “5”.
I move amendment No. 4:
In page 16, between lines 10 and 11, to insert the following:
""sectoral" means pertaining to the provision of broadcasting and broadcasting related services;".
The amendment inserts in section 2 a definition of sectoral which is used in sections 56, 65, 100 and 103 of the Bill. It aims to address the concerns raised by Deputy Coveney on Committee Stage with regard to the use of the word "sectoral" in section 100, in respect of the proposed role of the broadcasting authority of Ireland to advise the Minister of the sectoral impact of a proposed activity by public service broadcasters. I understand Deputy Coveney's concern was that the word "sectoral" might not be read as encompassing the impact of such a proposed activity on commercial broadcasters. The proposed definition makes it clear that the phrase "sectoral impact" will be read as meaning the impact of a proposed activity on the provision of broadcasting services generally.
I move amendment No. 5:
In page 17, to delete lines 1 and 2 and substitute the following:
"3.—The enactments mentioned in Schedule 1 are repealed to the extent specified in the third column of Schedule 1.”.
Amendments Nos. 6 and 7 are related and may be discussed together by agreement.
I move amendment No. 6:
In page 17, line 4, after "Act" to insert the following:
"shall be estimated and planned by the Minister on a multi-annual basis and".
The amendment raises very important issues in respect of the costs of setting up this quango. I propose that the costs of administration should be estimated and planned by the Minister on a multi-annual basis. It creates some certainty, especially for broadcasters, which are expected to have an input in financial terms. It also sets a certain requirement on the Minister to ensure there is cost containment. Earlier, I made the point that this is not the way to proceed nor is it cost effective. However, if the Minister is proceeding in this direction he should at least have a multi-annual estimation of the cost. He promises rather vaguely that it will be efficient, but he does not tell us how so. This is merely a small measure in that regard. How much does he expect it to cost in its year of establishment and how much will the State coffers be required to fund? Has the Minister met an bord snip nua and has this matter been discussed? We live in times when people cannot get an indoor toilet because there is no money in the kitty for disabled persons grants and when children cannot afford school books, yet the Minister will create an unnecessary body that will cost a great deal of money. The Broadcasting Commission of Ireland, BCI, which has fewer duties, cost €7.2 million in previous years.
We live in different times and Ministers must justify every decision. How much money are we discussing? If the new body will be the same as the BCI, why should the latter be replaced? If the new body will not be the same, the duties contained in the Bill indicate that greater costs and expertise and further structures in the form of committees will be required. What is the likely budget and can the Minister ensure that it will be planned, as this would provide people directly affected by the quango's running costs with certainty?
On cost and given the constraints on public service numbers, a quantum increase in resources or budgets will not be available. While this is a difficulty for regulators and other agencies, it is the environment in which we work. The process outlined in the Bill will transfer the cost from the Exchequer to the industry. While this will place an additional burden on the industry, it is common practice for regulators. For example, the energy regulator, CER, is provided with funding through a similar industry provision, as is ComReg.
This method is of benefit as it does away with the annual budgetary process and it provides certainty not only to the agency, but also to industry in the form of its involvement. Under section 37(1), the agency must publish a three-year estimate of its expenditure. Given the fact that the agency will be funded by broadcasters, it is expected that the agency will provide them with advance notice of developments in the levy. This is a normal business practice that works well within our other regulatory systems.
I cannot accept the amendment, although I understand its basis. Section 4 is a standard provision that appears in most Acts. As the Bill requires that advance notice in the form of a three-year plan be given, however, a generic provision would not be appropriate.
Regarding an bord snip or whatever its real title is——
An bord snip nua.
——and reform of public service numbers, it is due to enter into discussions with my Department next week. It will also consider broadcasting. We must determine whether we can include other content services so as to improve efficiencies. In this light and given the range of content regulation, we must determine whether we can amalgamate some of it to provide a better system.
We are reviewing everything. On an ongoing basis, we are considering how to connect the telecommunications network side with the content side. The outcome will not be as major a shift as the Bill constitutes, but the two agencies involved can be fine-tuned and integrated in a number of ways.
I have a number of points on section 4. Will the Minister be clearer? Will the implementation of this legislation cost the State anything? He referred to the expenses that will be incurred by the Minister in the legislation's administration. If the cost will not be zero, what will it be?
I will wait for the debate on the levy to discuss it. Just so that everyone is clear, how much will the industry need to pay for the establishment this year of the new structure? Presumably, the Department has estimated the cost. The Minister used the example of the telecommunications industry financing ComReg. As he stated, telecommunications is a multi-billion euro industry, but it is in a different place from broadcasters, particularly given the collapse in advertising revenues. The telecommunications industry has a different capacity to pay, as does the energy industry, some generators in which are too comfortable. Broadcasting is different in terms of its revenue and the pressures on it. If the Minister answers some of my questions, we will make progress.
Section 4 is a general provision of typical drafting convention. For example, payments to TG4 could be managed in terms of its levy contribution. During the establishment this year, the Exchequer's contribution versus the industry's will depend on how quickly we can do our business, which has been delayed for a number of weeks by the various emergency banking and pension levy legislation passed by the House. This year's cost to the industry will depend on how quickly the Dáil gets its business done, the Bill goes to the Seanad and is enacted and the agency is up and running. If all of that takes half or three quarters of the year, the industry's contribution will be €2 million or €3 million while the Exchequer will make up the balance. The Exchequer will incur the main costs in the authority's establishment.
I do not understand what the balance will be. Of what will the Exchequer make up the balance?
The balance of the estimated cost of running the BCI and the authority this year as one evolves into the other.
Regarding the industry's contribution, I recognise that it is a difficult time for broadcasters in that the advertising market has been dramatically reduced. However, good regulation will benefit the industry. To use a sporting analogy, both teams playing a football match on a Sunday morning pay the referee. It is a relatively small charge and makes sense for both teams, as there will be a better match and good regulations and rules. A number of broadcasters recognise that some of the stringent standards applied by the BCI in the past 20 years have worked to their advantage by maintaining standards and ensuring a fair playing pitch, which is important if players are to be prevented from dominating the market and if single media ownership, one of a range of eventualities, is to be avoided. The return on the levy will be of benefit to providers. It should be a small cost as a percentage of overall budgets.
The Minister should give the House a break. No one is arguing against regulation or standards. The Minister is establishing a costly body, although that is a guess because the Minister seems unable to provide us with even a ballpark figure of how much it will cost. Will it cost €7.2 million or €10 million? Broadcasters are on their knees. RTE and TV3 are struggling with large holes in their revenue.
If the Minister is talking about a referee on a football pitch, I am unsure whether he is in the real world. I imagine that at some point, he may be obliged to face the fact that an inability to pay scenario has arisen. At present, the Minister has not outlined how much this will cost. However, he has stated the burden will fall on the broadcasting sector even though everyone is aware that it is under ferocious pressure at present.
As for staffing this new body, will additional staff be taken on at a time when people are unable to gain access to special needs assistants, nurses or palliative care nurses? Will this happen or will a form of embargo be extended to this new structure? How many people will be employed, how much will it cost and what is the justification for levying the broadcasting sector? While I ask these questions of the Minister now, I suspect they will also be asked of him during his discussions with an bord snip nua. We now are in a different world and to carry on blithely as though another body simply could be created has a touch of empire-building about it.
Everyone desires standards in broadcasting and recognises the need for regulation, but that is not the issue. Such regulation and standards must be achieved in a cost-effective and efficient manner and the Minister is not reassuring Members in this regard, at a time when the public seeks reassurance that the Government is listening and taking on board the fact that we are in an economic crisis and cannot afford to continue with business as usual.
While I am informed there is no provision for the Minister to speak again, he may make a brief comment if he wishes.
Briefly, the budget figures are closer to the first figure given by the Deputy rather than the latter, that is, they are closer to €7 million than to €10 million. The cost this year to the broadcasters will depend on when the agency is established. This is not a time in which I will be able to provide massive additional resources in respect of staffing or finance. At present, I understand there are approximately 36 full-time equivalent employees working in the Broadcasting Commission of Ireland. They will be obliged to take on additional roles and seek efficiencies in their systems to be able to do this within existing resources. This may be helped if we can use other content provision within the State and can achieve greater efficiencies in that fashion. In addition, the manner in which my Department works with the new authority may bring greater efficiencies.
Moreover, this Bill provides greater clarity and ease in the management of this process. It will update and improve the regulatory system with a range of innovations in respect of the types of right to reply systems, complaint systems and commissioning systems that are available and they will bring efficiencies because this constitutes a modernisation and update of our regulatory system, which is the right thing to do. Despite the difficult downturn, this is exactly what should be done because I believe it will make it easier for broadcasters. The right to reply system included in this Bill is innovative and will keep everyone out of the courts, in which massive costs and delays are incurred. Through this legislation, Members can do a favour for the industry and help them through a difficult time.
I move amendment No. 7:
In page 17, between lines 5 and 6, to insert the following:
"5.—Any order, scheme, rule or regulation made pursuant to this Act shall be laid before both Houses of the Oireachtas as soon as may be after it is made, and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".
Amendment No. 8 arises from Committee proceedings. Amendment No. 9 is a technical alternative to amendment No. 8 while amendments Nos. 10 to 13, inclusive, 16 to 19, inclusive, 21 and 73 to 79, inclusive, are related. Amendments Nos. 14 and 15 are technical alternatives to amendment No. 13. Therefore, amendments Nos. 8 to 19, inclusive, 21 and 73 to 79, inclusive, may be discussed together.
I move amendment No. 8:
In page 18, to delete lines 1 to 7 and substitute the following:
"8.—(1) The members of the Authority shall be 9 in number, of which—
(a) 5 of them shall be appointed by the Government on the nomination of the Minister, and
(b) subject to subsection (2), 4 of them shall be appointed by the Government on the nomination of the Minister.
(2) Where an appointment is to be made by the Government under subsection (1)(b) or under that paragraph arising from a vacancy referred to in section 10(11)—
(a) the Minister shall inform the Joint Oireachtas Committee of the proposed appointment,
(b) the Minister in respect of an appointment under subsection (1)(a) shall provide a statement to the Joint Oireachtas Committee indicating the relevant experience and expertise of the persons or person nominated by the Minister for appointment or appointed by the Government on the nomination of the Minister, and such other matters as the Minister considers relevant,
(c) the Joint Oireachtas Committee shall within the period of 90 days of being so informed, advise the Minister of the names of the persons or name of the person it proposes that the Minister should nominate under subsection (1)(b) giving reasons, such as relevant experience and expertise, in relation to the proposed named persons or person,
(d) the Minister shall have regard to the advice and may accept the proposed named persons or some of them or the named person or decide to nominate as he or she sees fit other persons or another person, and
(e) inform the Joint Oireachtas Committee of his or her decision.”.
I have tabled amendments Nos. 8 and 73 for clarity in respect of the new process of board appointments that is proposed under this legislation. Amendment No. 8 relates to the board of the BAI while amendment No. 73 relates to the boards of RTE and TG4. Subsections (1) and (2) of sections 8 and 81 are being changed to make the process to be followed by the Minister in respect of the appointments of board members, where the Oireachtas joint committee has a role, more transparent. The amendment provides that the Minister will inform the Oireachtas joint committee of the nominees by him or her, together with details as to the relevant experience and expertise. This will allow the Oireachtas joint committee to consider the type of skills mix and expertise of the proposed nominees it wishes to put to the Minister and enable it to decide on nominees which it considers would balance and complement the overall team. While the requirement for the Minister to have regard to the advice of the Oireachtas joint committee stands, there may be instances in which the Minister cannot accept the proposed nominees and this amendment brings drafting clarity to that possibility, as advised by Parliamentary Counsel, allowing the Minister to nominate other persons as he or she sees fit. The Minister is required to inform the Oireachtas joint committee of any decision relating to such appointments.
Amendments Nos. 14, 15, 74 and 75, which I have tabled, are consequential amendments that arise from the recasting of the relevant subsections. Amendments Nos. 19 and 79 are minor amendments that are proposed for clarity, while amendment No. 18 is a minor drafting amendment consequent on an amendment from Deputy McManus that was accepted on Committee Stage. I propose in amendment No. 78 to make the process regarding board appointments to the public service broadcasters consistent with the BAI process with regard to the publication of details of board membership and terms of office in the Iris Oifigiúil.
Turning to the Opposition amendments, I will begin with amendments Nos. 9 and 13 tabled by Deputy Coveney, which deal with procedures in respect of appointment of board members of the BAI. Amendment No. 9 proposes that rather than the model contained in the Bill, whereby five members are nominated by the Minister and four members are nominated by the advice of the Oireachtas joint committee, all members are nominated by the Minister but are then subject to an approval hearing and vote at the Oireachtas joint committee. Members dealt with this issue at length on Committee Stage and I retain my preference for the approach set out in the Bill. As I have explained previously, it allows the Oireachtas joint committee the opportunity to propose board members and obviously its own internal discussions will ensure the suitability of such members, as well as leaving the Minister of the day to select five members.
As I noted previously, it is particularly appropriate that there be balance and transparency in respect of board appointments, especially for boards dealing with broadcasting matters in which the organisations involved play key roles in ensuring media pluralism reflecting the democratic nature of the State. I believe my amendments already discussed bring further clarity to the process and commit the Minister and members of the Oireachtas joint committee to a genuine and purposeful discussion. This proposed approach requires genuine participation between the Minister and the Oireachtas joint committee in the selection of candidates, rather than one that could lead to confrontation. For that reason, I cannot accept amendment No. 9 and, therefore, neither can I accept amendment No. 13, which is an associated follow-on from it.
Amendments Nos. 10 to 12, inclusive, tabled by Deputy Coveney, propose representation from the disability sector and consideration of industry, technical and consumer affairs experience in the nomination of BAI board members. Amendment No. 16 tabled by Deputy McManus proposes that the BAI should include members with experience in certain specific areas. Amendment No. 76 proposes the same for public service broadcasters. In general, these areas of expertise are already identified in sections 9(1) and 82(1), among many others, as areas in which board appointees may be experienced. In general, I am opposed to sectoral appointees to boards. While board members should be generally qualified for board membership and should be from diverse backgrounds, I do not believe they should perceive their role on boards as a narrow representation of one group. Therefore, I cannot accept amendments Nos. 16 and 76 or amendments Nos. 10 to 12, inclusive.
Amendments Nos. 17 and 77 tabled by Deputy McManus deal with the issue of whether it is appropriate for board members to serve more than two terms. The legislation currently intends that in the case of both the broadcasting authority of Ireland and public service broadcasters, no one will serve more than two terms. Given that the proposed maximum term for each appointment is five years, this potentially will allow board members to serve for up to ten years. That is a sufficient period and I believe that changes in board membership should occur periodically. As a decade appears to me to constitute a reasonable period, I cannot accept amendments Nos. 17 and 77.
Amendment No. 21 proposes to remove section 19(2), which is a subsection that restricts the chief executive officer from discussing the merits of Government policy while attending the Committee of Public Accounts. I cannot accept this amendment as the restriction on comments as to the merits of Government policies is a standard one in respect of the Committee of Public Accounts, the purpose of which is to focus on reports from the Comptroller and Auditor General and the use of resources and expenditure generally and on financial matters, and not on other issues. I should point out that no such restriction is proposed in the legislation in respect of section 20, which deals with attendance and accountability pertaining to other Oireachtas committees.
First, on a procedural issue, Members are discussing too many amendments together at once as a number of themes must be discussed. The first of these is how we select, elect if necessary and approve the new board, from the point of view of the broadcasting authority of Ireland, the so-called corporation, RTE, and the compliance committees. I want to address this first, then consider whether we should have board members from sectoral interests. I hope the Acting Chairman will allow me to contribute a number of times on this group of amendments, otherwise I will stay on my feet and go through them all.
The Chair will be as helpful as possible but there are restrictions on me. I will do my best.
I will not be difficult on this matter.
I acknowledge that the Minister has shown initiative in changing the way the Government selects boards. Many people are rightly cynical about the way State board appointments are made. It is far too political and based on political preferences and background. There have been many cases of preferential treatment and that should not be the case. This is an example of an important decision-making body that must be selected and appointed on the basis of the knowledge, talent and intelligence required for a broadcasting authority. The Minister is trying to take politics out of the appointment process to a certain extent.
As I said on Committee Stage, the Minister has gone about this the wrong way. The role of an Oireachtas committee is not to start selecting a panel of proposed people on whom the Minister can make a decision; rather, it is to hold the Minister to account on his decisions. The role of the Minister is to make decisions on behalf of the Government in a non-partisan political way and for that decision to be tested by an Oireachtas committee to ensure it is fair and non-partisan. That is how I see my role as an Opposition spokesperson. If I am lucky enough to be in the Minister's position I will happily take on the responsibility of making these choices and I will happily be tested to ensure I am not abusing my position as Minister and decision maker.
I suspect I will not be successful in this because of what the Minister said but I would like the Department to do the research to find the best people in the country for this role. I would then like the Minister to bring this team of people before an Oireachtas committee and allow Deputy McManus and other committee members to interview the team and discuss the role of the new broadcasting authority of Ireland. At the end of the process, which will not be the witch-hunt that some suggest, we would vote to give approval to the overall board. This is similar to what the European Parliament does when it approves the panel of Commissioners appointed every five years. It is a system that works. I do not say that we should vote against individual appointments, we should judge the Minister on his overall team and cast a vote. The Government will have a majority on the committee anyway and, therefore, there is no danger the committee would vote against the board unless the Minister makes an awful hash of it. However, it would give us the opportunity to expose those who should not be there. That would be a far braver stand by the Minister than what he proposes, even though I recognise this is a significant change. It does not make the change in a courageous way. The Minister, on behalf of the Government, will nominate a majority on the board and, in listening to what Opposition parties say, he will allow the Oireachtas committee to propose a panel from which to appoint a minority of the new authority. At no point in the process will the majority or the whole team of the authority sit before a committee and outline their suitability for the job. That is wrong. If we are to reform State appointments in broadcasting, let us do it right. The Minister will get a responsible approach from me and my party in respect of the appointments the Minister makes.
I welcomed the appointment of many of the people on the new board at RTE. They are good people and they would have passed an Oireachtas hearing system with flying colours. I ask the Minister to consider the amendment. In the absence of my proposal being successful I will play my role in the new structure proposed by the Minister, but it is not as transparent and accountable as what I am proposing.
What the Department allowed to happen after the end of 2008, in January and February 2009, whereby RTE had no board to make strategic decisions and give direction to RTE, was negligent. I understand why this legislation has been delayed and it is not the fault of the Minister, but there was no contingency plan to deal with the reality that the board of RTE was no longer in existence at the end of 2008. RTE continued to operate, arguably without a stable legal basis because it had no board for more than two months before the temporary board was appointed. We should learn lessons from that.
I ask the Minister to address these concerns and I will then speak on the less significant issues in these amendments.
I acknowledge that the Minister has tried to do something unprecedented in including the Oireachtas committee on deliberations regarding appointments. That is welcome but I share the view of Deputy Coveney that the approach adopted is second best. We must have a rigorous system of accountability for Government appointments. The Minister's party has found, to its cost, that the existing system can lead to unexpected perils such as what happened to the Dublin Docklands Development Authority. That could have been avoided had there been a scrutiny process as is the norm in more progressive parliaments. The Minister has been cautious and I am not sure how productive this process will be. We will play our part but it is disappointing he did not have the confidence to do it in a way that would enable the Oireachtas committee to have a real job of accountability and scrutiny.
I agree with Deputy Coveney in respect of the RTE board. That was inexcusable. When I discovered what was going on I was genuinely shocked. In statutory terms, it was unacceptable but in regard to ensuring our national broadcaster had a good strong management structure, leaving it without a board for so long either showed inexperience from the Minister or lack of consideration of the importance of RTE. It may have been lethargy. Will the Minister give us an explanation as it is remarkable that it would reach the point where RTE would have been unable to continue to operate with regard to annual reports etc. because the Government had not bothered to establish a board? It would be worth knowing what went on that led to such a delay.
Amendment No. 16, which I put down, relates to including at least one person with specific expertise. It relates to matters pertaining to disability and aging but also broadcasting and digital media technologies. I understand where the Minister is coming from when he says he does not want representative people on boards but I ask him to make an exception to that rule. Yesterday we were given a presentation in an Oireachtas committee by the umbrella organisation promoting the right to access to television and radio by people with disability. It went right across the board and involved Age Action Ireland, representatives of people who are deaf and blind etc. It was a very professional presentation.
It seemed there should be a special status accorded to people with a disability and older people. For them, broadcasting of radio and television has particular significance and being unable to access television or radio is a particular punishment. We must consider the matter seriously because if we simply say that such issues are important and look to encourage broadcasters to play their part, if the resources are not there the result will be the same as what happened with the diaspora channel. Work was done in this House to ensure access to Irish broadcasting by our diaspora and everybody agreed on it. The Government committed to this and it was put into law but now RTE does not have the required money to do anything about it. This can happen very easily as good intentions fall by the wayside.
I was very impressed with yesterday's presentation and I urge the Minister, if he has not done so already, to read about the practical approach presented by the disability groups. Even if he does not accept my amendment he should ensure that somebody is in place who is not just representing the disability constituency because that is not enough. We must have somebody who understands the constituency, represents the people's needs and also has expertise in the area of digital technology and broadcasting. All elements are required.
There are considerations regarding the equipment people have and whether they can use it or if it is accessible. One must consider how it is possible for an elderly or disabled person to access television, what happens with DTT transfers and whether people are to be left out of the loop because their televisions are too old. These are the kind of issues that must be concentrated on all the way through the technological changes.
I was struck by the fact that Britain's National Health Service, NHS, has a dedicated service for people who may be ill or elderly and who would normally go to their doctor or go to hospital for advice or attention. The NHS is using broadcasting to bring information to people so that there is a saving, in effect, on doctor calls or visits to the surgery as people can access the information through their television or radio. That is the kind of potential which exists for people at a disadvantage but that potential must be understood.
I urge the Minister to accept the amendment as this sector is particularly reliant on broadcasting and its needs should be at the highest level to ensure they are met. Otherwise we will end up with lip service that does not deliver in terms of meeting the needs of people with disability and older people.
I will first deal with the gap in the re-establishment of the RTE Authority. Deputy Coveney indicated the Department allowed that to happen but the Minister allowed that and I take responsibility for it. I will explain why. As good as my Department officials are — they are very good in this area particularly — with this type of appointment it is right that it be made at a political level. Certain decisions are better made by politicians and there are very subtle balances and decisions to be tackled regarding the mix of people, character and abilities. I agree with Deputy Coveney that the process should not be on a partisan or party political basis, as this does not lead to the wider consideration of how people could work together on a board.
The reason for the gap was simple and was not down to a lack of attention to the issue or a real sense of urgency. Sometimes it can be very difficult to get people. On a number of occasions in that period I was not able to get the mix of people that I initially wanted. I had to go back to talk to a number of different people. I cannot even give details of the people who may not have wanted to participate for different reasons but there is the issue of people——
Why did the Minister not continue with the previous structure until there was time to put something in place rather than create a vacuum?
I intended to close the vacuum sooner and we were ultimately able to do it. The board is up and running and the right people are there.
I know that.
The issue remains. There is much concern out there that putting oneself in any way in the public domain or in public service is to put oneself in a position of scrutiny, ridicule and questioning so some people are questioning whether they should go forward for public service appointments. I have a concern with regard to the whole approach suggested by the Deputy as it relates to appointments to boards. There is a fundamental difference of views, which have been outlined on Committee Stage.
It is better to have the power to propose rather than oppose. I listened very carefully to the Deputy's arguments on what the Oireachtas committee would do. His central argument was that it would have the role "as a test of partisanship" and the crucial job of that committee was to ensure the Minister was not being partisan in the appointments.
It should hold the Minister to account.
The Deputy indicated the role——
The Minister should not misrepresent me.
We can look back on the record. The Deputy indicated it would expose people who should not be there. I disagree fundamentally as to what the opportunity is as we change the way we appoint boards. It is far better, more powerful and more useful to give any Oireachtas committee — I would apply this to any appointment to a board because it is a fundamentally good model — to have the power to propose. It should have the power to suggest a person, skills or a balance as appropriate to a board.
The amendment came from the discussions we had on Committee Stage and accepting some of the arguments made by the Deputies. The process we are refining with this amendment is to say that the Minister indicates which people have been appointed, their skill sets and the reasons behind their appointment. That makes it much easier for the Oireachtas committee to round off the board and add to it with its own proposals. That is a far more positive and progressive step than operating on a partisan basis, as the Deputy suggested could happen. I do not see how that would add to the quality or standard of boards. That is why I fundamentally disagree with the Deputy and why I am adhering to the approach I have outlined.
Deputy McManus referred to people who are members of particular bodies or organisations. The model for which provision is made in the Bill will provide the Oireachtas committee with the opportunity to identify people who would make excellent candidates and nominate them for membership of boards. I agree with the Deputy that when appointing boards, we must consider whether the membership is representative of different interests throughout the country. For example, certain boards might benefit from having people with technological expertise or those who have worked with disability groups as members. The Oireachtas committee, as well as the Minister, will have the power to ensure that a broad mix will apply in respect of the membership of boards.
An amendment was made in the Seanad in respect of the audience council to the effect that the latter must include among its members someone who represents the disability sector. Making such a provision in respect of the audience council is correct. However, I do not wish to restrict the broadcasting authority of Ireland or the RTE or TG4 authorities in this regard. It is our responsibility, as politicians, to make the call in this regard. Politicians must be representative of the people and they have a duty to establish boards that are representative. We should take our responsibility in this regard seriously because it is one of the most important responsibilities conferred upon us. We are sharing our power in this regard and handing it over to those on the opposite side of the House. This will lead to the creation of a better process in respect of appointments to boards. I look forward to working with the Deputies opposite in the context of discovering how this will operate in practice.
I will leave the argument where it stands in the context of our difference of opinion regarding the role of committees and that of the Opposition. I was lucky enough to have been involved in the hearings process in another parliament and was extremely impressed by it. That was my sole motivation behind my proposal that we adopt a similar structure in Ireland. I will endeavour to play my part in ensuring that the system proposed by the Minister will work. I accept that there is a benefit to having the opportunity to put people forward for membership on boards as well as the opportunity to test the decisions of Ministers. I return to the point that the majority of the members of the authority the Minister will appoint will never be tested by the Oireachtas. It will, therefore, continue to be possible to place on the State board in question someone who might be termed a "dud", without he or she ever being exposed as such. That is not good enough.
Deputy McManus referred to the disability sector. The Minister made a strong point to the effect that he does not wish to be overly prescriptive with regard to whether the person appointed to the board from this sector represents a sectoral area or something else. The Minister has taken action in this regard in an absolute way in respect of gender balance. As such, he has already established a precedent with regard to being prescriptive.
I support Deputy McManus in respect of the disability-access sector. There are many people who, for a variety of reasons, have difficulty accessing broadcasting services. While I accept the principle that we should not prescribe the exact make-up of the board in the context of sectoral interests — this would essentially request the Minister and the Oireachtas committee, in terms of their nominations, to operate within the confines of a straitjacket — an exception could be made in respect of disability-access interests to ensure that at least one board member would represent those with such interests. In that context, amendment No. 10 in my name states that the nomination and approval process "shall have regard to the need for gender balance and representation from the disability sector".
Amendments Nos. 73 to 79, inclusive, deal with RTE. How does the Minister plan to proceed in this regard. The existing RTE board has been put in place on a temporary basis. How does he intend to add to this board? Will he merely add further members to the existing board when the committee puts forward a panel of nominees or does he intend to establish a new board? Will the members of the temporary board comprise a percentage of the new board or will an entirely new membership be selected? I presume the Minister will merely add to the six people who are already in place.
I do not wish to labour the point regarding the needs of people with disabilities. I am aware of the Minister's goodwill towards this issue and I would be extremely surprised if the first authority appointed did not contain some form of representation to ensure full access for people with difficulties. However, legislation does not relate to any particular Minister. In view of the current climate, I do not believe it is possible to state whether the Minister, Deputy Ryan, will even be in office in 12 months' time. I wish him well but we cannot be certain of anything at present. All that is certain is that the legislation, once it is passed, will endure until it is amended. That is extremely important in the context of providing certainty. However, it is vital that we steer the legislation in a direction which is inclusive and involves a political dimension.
The Bill is not merely concerned with administration and regulation; it makes a statement with regard to broadcasting itself. On Second Stage, I made the point that it does not contain a definition of "public service broadcasting". The Minister replied by providing a definition. The Bill is not merely concerned with the nuts-and-bolts issues; it is designed to ensure that access will be guaranteed to people across the country and to the members of the diaspora who live beyond our borders. One of the aims of the Bill is to ensure that certain standards are in place. Such standards must contemplate the needs of those with disabilities or the elderly. We can put in place all the standards we wish but if certain people are excluded, such standards will not prove adequate.
Regardless of the goodwill of the Minister or the Oireachtas committee, I do not believe that the needs of people whose access to services is restricted will be met unless provision is made in legislation. I ask the Minister to accept the amendment in my name, which makes provision on a one-off basis and which will not open the floodgates. Deputy Coveney made an interesting point with regard to gender balance, which is something to which we have all become used. However, there was a time when one was obliged to go out on a limb when one argued in favour of gender balance. To an extent, one was treated as somewhat hysterical and very unreasonable when one argued in favour of gender balance. However, that is now the norm and it no longer comes as a surprise.
We must address the needs of those with disabilities. Those needs are not acknowledged in the legislation or in the Minister's approach. There must be something concrete in it to give to people who experience many difficulties, and a great deal of discrimination. It may not be deliberate but it happens every day. One has only to try travelling in a wheelchair to experience the difficulties that are created by the obstacles in our environment. I urge the Minister to accept that it would be a good marker to set down that we acknowledge that people with disability and older people have special requirements that must be addressed in legislation rather than on the droit du seigneur of a Minister.
On the disability issue, I cite the access rules developed by the Broadcasting Commission of Ireland as one example of what this regulatory process costs the industry. It is progressive and delivers in terms of the targets set to 2014 of RTE being 100% accessible in terms of subtitling and so on. Regulators do important work to deliver on some of our ambitions regarding disability and standards that otherwise would not get addressed and would not be delivered on. That work is a example of the good that comes out of some of the spending on these regulatory systems. We shall see what we can do to get that onto the various boards we will have to appoint, not only the TG4 board but also the new broadcasting authority.
To give details on the interim board that is in place in RTE under the 1960 Act, I asked two of the members of the existing board to stay on an interim basis for this period. They bring particular experience, especially in the finance side which will be useful because the broadcaster is in a very difficult financial position. That knowledge will then pass on to the new authority.
It is my intention then to take the six members from that authority, along with the four members proposed by the joint Oireachtas committee, and re-establish the new authority under the new legislation as soon as it is passed. There is a timeline around that. We have to get our business done. Under the legislation a three month timeframe is given and we will face a tight deadline to get the work done to establish the RTE authority as a new authority under this legislation, taking six of the members of the current interim board with the names proposed by RTE. Also, under the legislation there will be a requirement for the staff in RTE to vote through a further member to allow the staff representative to be on the authority on that basis. The intention is that the interim members of the board would progress on to that new authority as soon as we have the four names from the joint Oireachtas committee and the legislation is passed.
I thank the Minister for the clarification on the RTE board. We should just get on and do it in order that it can get clear direction and have a full sized board with all of the expertise it is hoped that will bring.
Deputy McManus has made the point repeatedly about the need for representation of the disability sector. I agree with everything she said in that regard. I suspect our committee will take that into account when we nominate names for the Minister to consider, but the unfortunate aspect is that there will not always be the same relationship between an Oireachtas committee and a Minister. In five or six years' time we could have an entirely different political structure here, never mind political personalities, and we will not have legislation that requires representation of a person from the disability-access sector on the board. That is a missed opportunity. Without being overly prescriptive, the Minister has a reasonably big board to fill and to insist that one of those members would fulfil that role is not unreasonable. I would consider it as being more important than having a precise gender balance on the board. We should take account of gender balance but——
The Deputy is skating on thin ice.
We might disagree on that but whether there is the exact same representation of men and women on the board is less important than having a representative who has expertise and knowledge in this area. We must have general regard to gender balance on the board but being exacting in that area and not being prescriptive in the area of disability is wrong.
My amendment No. 13 seeks to facilitate a speedier and more efficient decision-making process when there is a vacancy on the board. If a person must leave the board for a reason, what the Minister is proposing in the legislation is that the Oireachtas committee would meet and go through the process of making a nomination, which the Minister will either accept or reject, to fill that role. If that happens at the start of July there will be no replacement until, say, September because the Oireachtas committee might not be able to meet to consider the matter. If there is a vacancy on a board it is the Minister's job to replace that person and then go to the Oireachtas committee to inform it of the reason the person has been chosen. In terms of going through that laborious process, and I am speaking against my own interests in Opposition, the Government must be efficient as well. It appears to be an overly laborious process for the Oireachtas committee to go through the process of interviewing, selecting and recommending a person to the Minister before he can make the choice to accept or reject that nomination to replace one person on the board. Should the chair of the board take ill, have an accident or have to leave because of a scandal, we do not have an efficient system to replace that person quickly, and that is a flaw. That is the reason I propose that the Minister would take charge in that scenario, make an appointment and stand over that appointment before a committee. This is an efficiency of Government issue also in terms of making a decision like that. That is the purpose of amendment No. 13 which I would have expected to come from Government rather than from Opposition.
On that last point, that provision was inserted specifically in case of prospect that I might be sitting on the other side of the House at some time in the future. I would like to retain the ability to use the facility in the legislation to be proactive and nominate people because that facility keeps this process going. It does not hand it back to the Minister. I would prefer to do that. If we cannot do our business here in the Oireachtas within 90 days, in terms of getting a committee to meet, that would be a sign of our own inefficiency. I would adhere to the way the Bill is written to give that power to the Oireachtas committee and to continue to give it after the actual foundation.
There are ways in which it can be done, and these are the details we can work out in the meetings we have to decide how this process works. If the Oireachtas committee proposes 12 names in total, there would be no problem having a list of, say, 16 to ensure there is a substitute. If, for whatever reason, a member was not able to be on the board, the Minister would be able to choose, say, No. 13 or, two years later, if the list is still intact, it gives us the ability to do something fairly quickly. There are ways around that issue but I am reluctant to give the power to the Minister. I would prefer to give it to the Oireachtas committee.
I move amendment No. 10:
In page 18, to delete lines 8 and 9 and substitute the following:
"(2) The nomination and approval process shall have regard to the need for gender balance and representation from the disability sector.".
I move amendment No. 14:
In page 18, line 31, to delete "subsection (1)(b) and section 10(11)“ and substitute “subsection (2)”.
I move amendment No. 15:
In page 18, to delete lines 45 and 46 and in page 19, to delete lines 1 to 6.
I move amendment No. 16:
In page 19, between lines 25 and 26, to insert the following:
"(2) The Authority or a statutory committee shall include at least one member who has had experience of or shown capacity in each of the following areas—
(a) matters pertaining to disability and ageing,
(c) digital media technologies.”.
I move amendment No. 18
In page 20, line 25, to delete ”Iris Oifigiúil“ and substitute “the Iris Oifigiúil”.
I move amendment No. 19:
In page 21, line 25, after "member" to insert the following:
"(other than a member referred to in subsection (11))”.
Amendments Nos. 20, 22 and 81 are related and may be taken together by agreement.
I move amendment No. 20:
In page 24, to delete lines 33 to 37 and substitute the following:
"(11) Subject to any rule made under subsection (3), meetings of the Authority or a statutory committee shall be capable of being held by telephone or other suitable electronic means whereby all the members of the Authority or the relevant statutory committee can hear and be heard.”.
The amendments in this group relate to board procedure and accountability. They are intended to respond to concerns raised by Deputies on Committee Stage on the working of sections 13(11) and 88(7), which provide legal certainty on the use of electronic communications media for board meetings and decision making by RTE, TG4 and the Broadcasting Authority of Ireland in statutory committees. The wording proposed for the amendment is drawn from section 28(n) of the Heads of the Bill submitted by the Company Law Review Group in association with the report on the Companies Consolidation and Reform Bill to the Minister for Enterprise, Trade and Employment in May 2007.
While I hope it would not be the norm for board members to participate by telephone, there will be instances where meetings are necessary at short notice and which may only be conducted by telephone or video conference. These amendments are necessary to ensure that any decision made in such a meeting is afforded legal certainty. It should be noted the application of such provisions will be subject to any rules or procedures set by the organisation concerned under sections 13(3) and 88(5).
With regards to amendment No. 22, sections 21 and 22 of the Bill require that members of the board, staff or contractors of the Broadcasting Authority of Ireland and its statutory committees must disclose any conflict of interest to the Broadcasting Authority of Ireland. Section 21(2) and 22(1) provide for the steps to be taken on the disclosure of a conflict of interest.
Section 21(3) requires that any conflict of interest raised by a member of the board, the BAI or its statutory committees must be noted in the minutes of the meeting of the Broadcasting Authority of Ireland or its statutory committees.
Sections 21 and 22 do not require the Broadcasting Authority of Ireland to automatically place such information in the public domain as there may be instances where to place a disclosure into the public domain would serve no public interest but would infringe on that individual's right to privacy. Sections 21 and 22 as constituted are appropriate so I do not propose to accept amendment No. 22.
I am suspicious at the idea of meetings of an important authority being conducted by telephone. We should stick with the old ways. If there is an emergency meeting that must be conducted by telephone, must every person on the authority be contacted and able to participate? Only a quorum is necessary for a meeting. I would be uncomfortable that a meeting could be held using the quorum to validate it if the meeting was being conducted by telephone.
The amendments that are grouped together are supposed to relate to each other. When the Leas-Cheann Comhairle announced this group, he stated that the amendments are related but there is no relationship between amendment No. 22, which concerns disclosure, and amendments Nos. 20 and 81.
If the Deputy wishes to dis-aggregate them, that is fine.
I do not want to labour the point but I want to inform those who compile the grouping that the form of grouping used through this Bill is incredibly difficult, mainly because so many amendments have been bundled together. In this instance, even though there are only a few amendments, they should not have been bundled. We are not being well served in terms of the work we must do when there is such aggregation.
In the interests of accountability I ask the Minister to look again at the amendment. It states that where there is a conflict of interest, it would be recorded in an accessible manner. If someone has a conflict of interest and declares it, I do not see a problem. The amendment is formulated in a way whereby if someone is found to have a conflict of interest that was not declared, it can be addressed. It simply formalises the requirement of a member of the authority to declare a conflict. Putting a register in place would assist good practice because we have had bad experiences here. This is an extra safeguard and I am disappointed the Minister is not proceeding with it.
Amendment No. 20 is a response to my concern on Committee Stage at the possibility that board meetings could be held where people telephone to give a decision on a question. It is open to abuse in difficult decisions where the board is split. To be fair the Minister has tried to address this concern. In the unlikely event there is not a full attendance at the board meeting and members must be telephoned for their views on a certain issue, it would not be acceptable for the chairperson to be on the telephone when other members could not hear and a vote may be taken. I have experience of controversial decisions made on the basis of telephone calls from people who were abroad at the time.
I accept the RTE board will have to meet in emergency session when some members could be abroad. I have no problem with telephone or video-conferencing whereby every board member can contribute to a discussion and give their decisions to the meeting. It must happen, however, in a way where all members can hear what is being said and have the opportunity to contribute. The Minister's amendment covers this.
My only concern is the drafting of the amendment. It states, "meetings of the Authority or a statutory committee shall be capable of being held by telephone or other suitable electronic means whereby all the members of the Authority or the relevant statutory committee can hear and be heard." If one member cannot be heard, for example by not having access to a telephone, it would negate those who were contributing through other conferencing means. There could be an awkward scenario of a board member being in hospital. This would negate other members using telephone or video-conferencing facilities. Even if a decision were taken by a large majority of the board, it would not be valid. When entering the telephone or video-conferencing realm, it is either all or nothing. Either every member is there as part of the process or else one goes back to the old-fashioned way of people turning up for a meeting.
The thinking behind this amendment is not only to cover such circumstances where decisions must be taken quickly but to facilitate new technologies as they develop, such as halo and telepresence facilities which allow for instantaneous telecommunications links. I have seen examples of where companies have reduced travel expenses and greenhouse emissions by up to half with increased conferencing. This legislation will allow these new communications facilities to be used.
It is important that it can only be done when "all the members of the Authority or the relevant statutory committee can hear and be heard." It cannot just be case of a chairman saying he telephoned someone and cleared it with them. It must be a proper and instantaneous communications link. It is a difficult balance to get right. One wants to ensure proper order and procedures in place but also that the board meets regularly on a physical basis. One does not want to end up in a situation where meetings end up as teleconferences.
There is a precedent under the company law review. For example, section 10(2) the Central Bank and Financial Services Authority Act 2004 states:
The Council may, if it thinks fit, transact any of its business at a meeting at which its members (or some of its members) participate by telephone, closed circuit television or other means, but only if any member who speaks on a matter being considered by the meeting can be heard by the other members.
I take Deputy McManus's point on disclosures although it could be argued it is a board procedure issue. There is clear direction in the legislation for any conflicts of interest to be recorded in the minutes.
The minutes will, however, not be published.
That depends on how they are dealt with under freedom of information legislation. There is a requirement that where such a disclosure is made, the person absents themselves from the meeting. The legislation provides that a member does not just disclose the conflict of interest but also must take action such as removing oneself from a decision-making process where the conflict might apply. It also recognises that with our small population, it is impossible to pick people in the broadcasting area who may not have a conflict of interest with broadcasting institutions. Any freelance journalist, for example, could be contributing to a RTE programme for which they would be paid or could be working for an independent radio station. It is difficult to find people with the relevant experience that might benefit such a board without having a conflict of interest. It is a subtle balance to decide whether a conflict of interest is so fundamental it precludes the board member from discussing an issue or whether the issue itself is merely an everyday matter. That decision must lie with the board.
I agree with the Minister that it is inevitable in a country of this size there will be conflicts of interest from time to time. It is a question, however, of accountability. Will the minutes be subject to freedom of information requests? From my experience on local authorities, Oireachtas committees and this Chamber, from time to time people declare a conflict of interest in a matter. Regrettably in the past, particularly in planning issues, people did not declare and we all know the terrible price paid consequently. It is not an argument that there should never be a conflict of interest. There will be conflicts of interest and that is why disclosure of such events is so important. It must be recorded in a way that can be accessed.
Freedom of information originally was envisaged to be just that, "free". Requests have been made more difficult with Fianna Fáil in Government tightening up on the rights of people to access information. I am disappointed and perplexed as to why a Minister, who believes in accountability, has such a difficulty with my amendment. As conflicts do arise, it is important that some record of them are made and are easily accessible. The Minister is saying that if one can afford to pay for a freedom of information appreciation, one will get the information; if one cannot, one will not get the information.
The Broadcasting Commission of Ireland is subject to freedom of information legislation. The availability of the minutes of board meetings would be considered within that legislation which is better placed to deal with this matter. Sections 21 and 22 set out in detail the authority's requirements when it comes to conflicts of interests which could influence decisions it will make.
I move amendment No. 22:
In page 31, between lines 33 and 34, to insert the following:
"(6) A disclosure under this section or section 22 shall be recorded in a register together with particulars of any interest of members of the Authority or persons to whom section 22 applies, and the register shall be available to public inspection during office hours.”.
Amendments Nos. 24, 25 and 27 are related to No. 23 and they may be discussed together by agreement.
I move amendment No. 23:
In page 33, between lines 4 and 5, to insert the following:
"(e) provide a regulatory environment that will sustain compliance with applicable employment law,
(f) protect the interests of children taking into account the vulnerability of children and childhood to undue commercial exploitation,”.
Amendment No. 23 places an explicit requirement on the broadcasting authority of Ireland and on statutory committees to protect the interests of children, especially in respect to commercialisation. The amendment is intended to respond to the concerns raised by Deputies on Committee Stage. I believe it addresses the essence of amendment No. 24 as proposed by Deputy McManus.
Amendment No. 23 also requires that the broadcasting authority of Ireland and its statutory committees ensure that, in setting the regulatory environment for broadcasting, such environment is conducive to and supportive of compliance with employment law. The amendment arises out of concerns expressed that there have been a number of instances of exploitative treatment of persons employed in the sector. In essence, the amendment requires the broadcasting authority of Ireland to be mindful of that issue and in setting the regulatory environment that it does not supplant in any way the role of employment law compliance bodies such as NERA.
Section 26(1), in effect, lists the primary functions of the broadcasting authority of Ireland. While each of these functions is specified and dealt with in greater detail in other sections, section 26(1) and sections 27 and 28 allow the reader of the Bill to distinguish between the respective primary roles of the broadcasting authority of Ireland, the contracts awards committee and the compliance committee.
Amendment No. 25 rewords section 26(1) with the following intent. It re-orders the list to broadly reflect the order in which such functions appear in the Bill. It provides a more comprehensive list of the functions of the broadcasting authority of Ireland, that is, paragraphs (h), (i), (j), (p) and (q), and makes additions to the text of existing paragraphs (c), (h) and (l). It amends incorrect references in paragraph (h) of the existing text. Amendment No. 25 does not in its own right require the broadcasting authority of Ireland to perform any additional functions.
Section 27 outlines the primary function of the contracts award committee. Amendment No. 27 amends section 27 to encompass the role played by the contracts award committee in respect of the award of multiplex licences. Again, amendment No. 27 does not in its own right require the contracts award committee to perform any additional legislative functions.
I welcome the inclusion of amendment No. 23. It goes as far as anybody would expect a Minister to go in terms of the issues I raised about protecting children. I appreciate that the Minister has taken the points on board. I will withdraw my amendment in support of his.
It is telling that we have the functions of the authority set out in an amendment on Report Stage. It took approximately seven years to produce the Bill. The forum report on which it is based was produced in 2002, yet it has taken until Report Stage of the Bill in 2009 to draw up the final list of the authority's functions. I wonder at this whole process. We are adding on further responsibilities to a body the Minister now confesses is not expected to cost any more than the existing broadcasting commission. The authority is not going to take on additional staff, yet more and more functions are being added to the list of functions. I have my doubts about this.
We are now living in some kind of alternative reality when one considers, for example, that a report has to be made to the Minister in respect of preparedness for analogue switch-off. It is a bit late in the day. The switch-off that is occurring in Britain in a few months will have a severe impact on the east coast of Ireland. We were promised that would be addressed and RTE has made certain commitments, but, as to producing a report, that kind of work should have been done at an earlier stage. To include that point in a list of functions bears out the original point I made about the need to have some kind of convergence in terms of regulation because much of this area is technical and relates to developments in communications.
I apologise for being so late in raising this issue but it only arose recently. The ability of people to appeal a decision by the authority is of fundamental importance to a contractor or operator. In this instance, a radio station serving Cavan and Monaghan was opened in 1989 and went on the airwaves at a particular frequency that is very close to a new station, 4FM. It is so close that significant interference has been caused to the local station by the arrival of 4FM, which means for the first time in 20 years parts of east Cavan, including Virginia and Ballyjamesduff, are no longer able to hear their local station. That is something that should not happen but it did happen.
When Northern Sound complained, the response from the BCI was pretty amazing: "Both stations will suffer some interference, but this is the price to pay to give the diversity in programming that the BCI strive to offer." That is not fair and it is not acceptable. That is not a decent reply for somebody living in Ballyjamesduff who has lost the local station. As far as I can see, what happened is that nobody thought out the technical problems that would arise by granting a licence. I am not a technical person so I cannot make a judgment other than that, but it is quite clear that people have lost out. The local station is concerned about the BCI's decision but there is no method of appeal. In terms of the authority's functions, how can that issue, first, be prevented in the future and, second, if such a situation arises again, what are the means of appealing to protect the public interest? It seems to me that sometimes decisions are made at the centre that do not relate to the particular problems people experience on the ground.
A number of issues arise in regard to the amendments we are considering. I wish to focus on a matter relating to an addition by the Minister in amendment No. 25 outlining the principal functions of the authority. I share the concerns that we are adding a whole series of new functions to the authority at the last possible opportunity. I have some concerns about one of them, which we will discuss again at a later stage on an amendment that we will probably not reach today. Section 26(i) and (j) relate to asking the authority to determine disputes arising under section 76(2) and section 77(5). That relates to the "must offer" and "must carry" obligations on new networks that will be provided through multiplex systems and others. We are basically asking the authority to become a dispute resolution body when it comes to what I anticipate will be significant differences of opinion between free-to-air broadcasters and the new networks to which they may be obliged to offer their programming for retransmission. The whole negotiation process on how broadcasters will be compensated or paid for that could be problematic.
I want to flag this as a problem area for the authority and the Minister. It adds a new role for the authority at a very late stage, when there is already a great deal of concern among existing free-to-air broadcasters who have entered into five or seven year contracts with sole rights in Ireland to transmit certain programmes. New networks that will be put in place to broadcast free-to-air programmes in Ireland will face a "must offer" or "must carry" requirement and this will create an issue around compensation for moneys already paid for exclusive rights in Ireland for certain programmes. We are asking that the broadcasting authority determine disputes arising in this area. The Minister will be aware of what I mean when I say I am concerned about an amendment dealing with this issue that he proposes to put forward later in this legislation. Clearly, somebody must have the role of determining disputes in this area. It makes sense that the broadcasting authority should do that. We are introducing a whole new area at a late stage without having had sufficient discussion on the matter.
I thank Deputy McManus for accepting that what we are trying to do in amendment No. 23 encapsulates the thinking in her amendment. Amendment No. 23 is crucial in that it attempts to give the new authority as much power as possible to ensure employment conditions within the industry are maintained. There is a difficulty in this regard because in many instances we are dealing with quite small companies with limited resources operating in a very competitive market. They may not be able to match the employment conditions and terms that would apply in much larger, probably public service, broadcasters. We must be careful to get the balance right. We do not want to overly restrict companies, but at the same time we want to ensure the right pay, conditions and other employment standards exist for the industry so as to maintain the rights of individuals and overall standards in the industry.
We need our broadcasting industry to be well supported, funded and paid so we get good investigative journalism and high standards. It is difficult to legislate for that, but there are bodies close to that and others that apply those standards. I wanted to give a clear signal in my amendment to the regulatory authority that it would have to take this into account in the issuing of licences and other work. It must be conscious that we do not just want a competition-driven model that brings wages and other prices down to the bare bone. We must maintain certain standards and ask the authority to take that into account. It must also take account of the issue concerning children.
On the second matter, the reordering of functions is primarily for clarity and is not included to introduce major new functions. However, given the timeline for us to get this Bill through and the approach we have taken, which was to accept amendments on Committee Stage, various aspects of the Bill, by nature, require reiteration in order to take into account changes that are being made. That is only right. It is better to amend and change legislation rather than stick rigidly to a format we might have had on First Stage. That is the reason we have five Stages in our legislative process.
The specific concern of Deputy McManus in terms of carbon is a real concern and demonstrates the importance of this legislation. The loss of a local radio station, for whatever reason, is a major change in people's lives and can be a significant loss. When people get into a pattern of listening to certain programmes, not being able to hear one of them has a real effect. The issue in terms of the spectrum allocation is a good example of what Deputy McManus is concerned about, the liaison that exists between ComReg and BCI in this area. ComReg holds the responsibility in the spectrum area.
I am reluctant to interrupt the Minister. If this is his final conclusion, it is open-ended as to time. However, if it is not, he is confined to two minutes. Does any other Deputy wish to come in on this?
I would like to hear what the Minister has to say first.
I would like to reply to two points. There is, as set out in Part 6 of the Bill, a clear mechanism for co-operation between ComReg and BCI in that regard. They work together and there is a resolution process for both of them and the broadcasting authority of Ireland, BAI, when it is formed, to resolve such issues.
Deputy Coveney raised the issue of "must offer", "must carry" on free-to-air programming. That is a broad principle I seek to enshrine so that free-to-air is actually free-to-air. I want to ensure we enshrine the ability for a variety of platforms to carry what may be publicly funded programming. I agree this is a direction from the political system that this is free-to-air. It is free to different platforms. The "must offer" obligation encapsulates that. It does not determine exactly what the contract arrangements are and does not determine who one can deal with, but provides flexibility.
I must explain the procedure. The Minister will have another chance to explain. On their second contribution, Members are confined to two minutes.
The difficulty in the specific case is there is no means of resolution. It should not have happened. This underlines the point that if we do not have joined up regulation, people end up losing out. This case is an example of the argument for a converged regulator and I would had hoped the Minister would have taken it on board. However, we have had that argument.
With regard to what happened, the decision was made without any consultation with the existing local station and without any forewarning from the regulator about the problems that might arise as a result of the launch of the new station. When the local station people contacted the BCI to alert it, the technical people agreed with their assessment, but stated they would do nothing. People are now deprived as a consequence. The solution presented to them — which does not sound like a solution to me — was that the local station could install a fill-in transmitter. This would cost a significant amount and take a considerable amount of time, not to mention the marketing costs to be incurred in making the public aware of the new frequencies. When the director of the local station spoke to the CEO, he was given the same response.
This is not a one-off problem. It is happening in other areas and will happen to a greater extent as more demand on spectrum arises. What is sought in this case is an independent panel. We need some kind of arbiter to determine who is in the right and who is in the wrong and who can ensure the system works. We do not have that currently. I have sympathy for these people. I know local stations are very dependent on their local community and survive through the community. It is a two-way process. The idea the local station has lost out because the BCI was not aware of what it was doing or its impact is regrettable. The Minister said there is a way of resolving this. What exactly does that mean? There is a way of resolving it which would incur significant expense and delay for the unfortunate local station, but that is an unacceptable resolution to the problem. In terms of the new authority and the arrangements being made and in the absence of a proper converged approach, what protection have contractors and operators to ensure this does not happen again? If, by any mishap, it does happen again, what appeals system exists to get the process working correctly?
I want to comment on the remark made by the Minister that free-to-air should mean free-to-air. That is okay for the consumer, but it is not necessarily okay for the broadcaster, because free-to-air is not free-to-air. There is a great deal of expense involved in the provision of product that is broadcast to the consumer on a free-to-air basis. An issue arises for new networks, which will have a right under this legislation to re-transmit free-to-air programmes through a series of different platforms. We must consider the effect on broadcasters that are providing the free-to-air service but financing it through advertising or, in the case of RTE, through a combination of commercial revenue and licence fee money. That is the basis of my concern.
With regard to Deputy McManus's point, proposed subparagraph 26(1)(c) states the authority will have to “liaise and consult with the Communications Regulator in the preparation of the allocation plan for the frequency range dedicated to sound and television broadcasting”. Mechanisms set out in detail in section 60 compel the communications regulator to vary any term or condition of a broadcasting licence subject to a range of conditions, for example, “if it appears to it to be necessary so to do in the interest of good radio frequency management”. The example the Deputy is citing would fall into this category. Section 60(2)(b) gives the broadcasting authority the right to communicate issues that arise to the communications regulator, thereby resolving problems. We are legislating specifically for the types of mechanisms about which the Deputy is concerned.
Deputy Coveney is correct that a public policy decision must be taken. An individual broadcaster may say it is in its commercial interest to pursue such a policy or plan but it may be in the national or public interest to give direction that a publicly funded broadcast service should be available on as wide a range of networks as possible. As such, we seek such a must-offer obligation in our legislation.
I move amendment No. 25:
In page 33, to delete lines 26 to 44 and in page 34, to delete lines 1 to 13 and substitute the following:
"26.—(1) The principal functions of the Authority are to—
(a) prepare a strategy for the provision of broadcasting services in the State additional to those provided by RTÉ, TG4, the Houses of the Oireachtas Channel and the Irish Film Channel,
(b) prepare a statement under section 29(1),
(c) liaise and consult with the Communications Regulator in the preparation of the allocation plan for the frequency range dedicated to sound and television broadcasting,
(d) make a levy order under section 33(1),
(e) prepare or make broadcasting codes and rules,
(f) prepare a scheme for the exercise of the right of reply,
(g) direct the Contract Awards Committee to make arrangements, in accordance with Parts 6 and 8, to invite, consider and recommend to the Authority, and the Authority shall follow such recommendation, proposals for the provision of—
(i) broadcasting services additional to any broadcasting services provided by RTÉ, TG4, the Houses of the Oireachtas Channel and the Irish Film Channel under Part 7, and
(ii) multiplex services additional to any multiplex services provided by RTÉ under Parts 7 and 8,
(h) prepare rules and enter into contracts in respect of electronic programme guides,
(i) determine disputes arising under section 76(2) and section 77(5),
(j) make a report to the Minister under section 77(15),
(k) consult with the Minister under sections 101(3), 102(3), 103(4), 104(1), (2) and (3), 106(3), 107(3), 111(4), 112(2), (7) and (11), 116(5), 127(6), 130(1) and 130(12),
(l) prepare and issue guidance to RTÉ and TG4 as to the fulfilment of their obligations under sections 109(11) and 112(2),
(m) undertake a review under section 124(2) and (8) and section 128(3),
(n) make a recommendation under section 124(5) and (12),
(o) make a request under section 115, section 130(10), section 132(3) or section 133(3) or (4),
(p) make a report to the Minister under section 139(1) in respect of preparedness for analogue switch-off,
(q) provide information to the public on the availability of services by means of television multiplexes, and
(r) prepare and implement schemes for the granting of funds under Part 10.”.
Amendments Nos. 61 and 67 are cognate and related while amendments Nos. 68, 71 and 115 are related. Amendments Nos. 26, 61, 67, 68, 71 and 115 may be discussed together.
I move amendment No. 26:
In page 34, line 33, to delete "sound".
This amendment arises from matters raised by Deputy McManus on Committee Stage. The amendment requires the broadcasting authority of Ireland, in preparing its licensing strategy, to consider the particular digital broadcasting needs of community broadcasters, including both community radio broadcasters and community television broadcasters.
Amendments Nos. 61 and 67 amend the definitions of "community radio" and "community television" contained in sections 64 and 72, respectively, to incorporate the principle that community broadcasters provide a social benefit to the communities they serve. These amendments collectively address the point raised by Deputy McManus in amendment No. 115 and, consequently, I do not propose to accept that amendment.
Amendment No. 68, in the name of Deputy McManus, relates to the information made available by community broadcasters on electronic programme guides regulated in Ireland and whether the community broadcasters need to pay for the provision of such information. The main platforms in question are the MMDS and cable platforms. The electronic programme guide framework is set out in section 74. This is essentially an updating of the electronic programme guide framework set out in the Broadcasting Act 2001. The framework ensures that the positions of RTE, TV3 and TG4 are prioritised on electronic programme guides made available in the State.
Deputy McManus's amendments suggest that community television stations should not have to pay for the information that describes the services on the electronic programme guide. I understand that the service description is not provided by the cable-MMDS operator but by a third party and, therefore, it is not within the control of the cable-MMDS provider to provide the text. The working position is that all broadcasters must pay the third party that compiles and provides the information found on the electronic programme guide. Therefore, if a community broadcaster wishes to have information on its content detailed on an electronic programme guide, it should pay the cost required by the third party that compiles the information. It is, of course, appropriate that the cable-MMDS operators should facilitate minimum identification to community channels carried.
Section 77(8) provides that the broadcasting authority may require that a community television broadcaster be carried on a digital or analogue network maintained by a network provider, reflecting the reality that capacity constraints may necessarily impose limitations on the network on which a community television broadcaster can be carried. It is best left to the broadcasting authority of Ireland to make such a decision, having taken into consideration capacity constraints and the remit, locality and target audience of the community television broadcaster. For this reason, I cannot accept amendment No. 71.
The Minister has made some progress, for which I am grateful. It would have been satisfactory to have had my other amendments relating to community television accepted. I can understand the point on the cost if there is a third party. I was not aware of this and it obviously limits possibilities.
It is important that community television be acknowledged to have a social benefit. I suspect that, if this Bill is amended in the future, community television will have a bigger part to play. It is very much in its infancy at present. At least some progress was made today and I thank the Minister.
I welcome amendment No. 26, which acknowledges in a very real way the existence of community television in addition to community radio. We are getting rid of the phrase "sound broadcasters", which had limited the functions of the authority to considering needs associated with community radio. It will now be required to consider the needs of both community television and community radio broadcasters. This is a forward step.
I move amendment No. 27:
In page 35, to delete lines 7 to 13 and substitute the following:
"27.—The principal functions of the Contract Awards Committee, at the direction of the Authority, are to make arrangements in accordance with Parts 6 and 8, to invite, consider and recommend to the Authority, and the Authority shall follow such recommendation, proposals for the provision of—
(a) broadcasting services additional to any broadcasting services provided by RTÉ, TG4, the Houses of the Oireachtas Channel and the Irish Film Channel under Part 7, and
(b) multiplex services additional to any multiplex services provided by RTÉ under Parts 7 and 8.”.
Amendments Nos. 29 to 31, inclusive, 56, 108 and 109 are related. Amendment No. 109 is a technical alternative to amendment No. 108. Amendments Nos. 28 to 31, inclusive, 56, 108 and 109 are to be discussed together.
I move amendment No. 28:
In page 35, to delete lines 25 to 28 and substitute the following:
"(ii) RTÉ and TG4 with section 106(3), and
(iii) the Irish Film Channel with section 127(6),
(d) enforce compliance by—
(i) broadcasters with sections 39, 40 and 41,
(ii) RTÉ and TG4 with section 106(3), and
(iii) the Irish Film Channel with section 127(6),”.
Having considered the points made by Deputy Coveney on Committee Stage on the funding of the Irish Film Board, I have tabled amendments Nos. 28, 29, 31, 56 and 108, which provide a statutory basis for the Irish film channel to broadcast advertisements subject to certain conditions, including the total daily times for advertising and the maximum period for advertising spots in any three-hour period.
One of the overriding considerations is that film and cinema works must be broadcast uninterrupted. The specific advertising conditions will be subject to the consent of the Minister for Communications, Energy and Natural Resources and the Minister for Arts, Sport and Tourism, following consultation with the broadcasting authority of Ireland. I have also made provision for advertisements by the Referendum Commission to be facilitated and for the Irish film channel to offer preferential rates for advertisements in the Irish language.
Amendment No. 29 is a minor drafting amendment intended to improve the clarity of the text in section 28. Amendment No. 31 requires the Minister for Communications, Energy and Natural Resources to lay before the Houses of the Oireachtas reports received from the compliance committee in respect of compliance with the Irish broadcasting codes of broadcasts targeted at Irish audiences by broadcasters located in another EU member state. The amendment addresses concerns inherent in amendment No. 30, as submitted by Deputy Coveney, and as such I do not propose to accept the latter.
Amendment No. 56 provides that the compliance committee of the broadcasting authority of Ireland will monitor and enforce compliance by the Irish film channel with any advertising minutage consents. These amendments address the spirit of amendment No. 109 and as such I do not propose to accept amendment No. 109.
I am glad we have made progress in this area. I accept that the Minister has genuinely tried to take on board some of the points I made on what I would have had regarded as a totally unsustainable proposal in terms of cost to create an Irish film channel with no way of raising money to finance itself and therefore would have to be financed by the Exchequer or another form of levy system.
The concession from the Minister that he accepts there should be a form of advertising on the channel is welcome. I agree with him that the advertising should be somewhat restricted. We should ensure that we can play on such a channel full length films uninterrupted by advertising. I accept what the Minister is trying to do. I still have some concerns about the structure of an Irish film channel in the context of the other channels with which it must compete. However, I recognise that the Irish film industry can be provided with a new outlet here whether it is for documentaries or short films.
With regard to the Minister's view of how this channel will develop, will it be for Irish made film only or will a certain quota be set for Irish made film with non-Irish film broadcast on the channel. If we are to introduce a commercial element, it is necessary to play a blockbuster to get sufficient audiences to make advertising worthwhile and, more importantly, to expose the audiences to Irish film which otherwise they would never watch. This should not be allowed to become a niche arts channel in which only a very small number of people or those connected with the Irish film industry would watch. We should attempt strategically to attract large audiences by showing very popular movies and then introducing Irish short film, animation and documentaries between them so we expose as many people as possible to the talents in the Irish film industry. I am happy to withdraw amendment No. 30 because it is catered for in amendment No. 31 tabled by the Minister.
I welcome the Minister's move. I strongly supported the idea of having a certain amount of advertising to provide the film channel with some resources. We must be careful about seeing this in commercial terms and I do not necessarily agree with Deputy Coveney. Perhaps the Minister could elaborate on his original thinking. I do not think he saw this as a movie channel. I understand it is to provide a showcase for Irish film and I presume Irish film encompasses Irish documentary film making and short films. I ask the Minister to confirm this.
Issues are raised not so much about the balance between non-Irish and Irish film, because the Irish Film Board would have a fairly good handle on this, but in terms of copyright. It is an issue for independent producers and much frustration is experienced where something is made for a television station such as RTE or TV3 and the independent film producer feels that it could be exploited further but the television station holds copyright. How will this be dealt with?
Having a film channel is a very enlightened idea and I am not afraid of it being a niche arty channel because those who would watch it are people too. I imagine it will be broader than that. However, I have concerns that sourcing material will be a real difficulty. We are a small country and film is not mass produced. It is quite limited. However, it will be extremely limited if the copyrights issues relating to independent producers get in the way of a documentary or a short film being shown on a film channel the purpose of which is to encourage the numbers involved in this niche to grow.
I am far more in agreement with Deputy McManus than Deputy Coveney on this issue. Amendment No. 108 contains the crucial word "may". I did not use the word "should" and nor would I because my preference is not to have to rely on advertising. The change of heart comes not only from Deputy Coveney's eloquence on Committee Stage but also from the realisation that we live in economic times where it may be difficult for the Exchequer to front the entire cost of such a channel.
My intent is still very much that this channel would have a niche outlook and that in the middle of the day it would show a film of interest to certain schools and at certain times in the evening it would show a Polish or Chinese film that would be of interest to particular communities. As I see it, the Irish films would be the blockbusters and at prime-time the channel would show a good Irish film, of which there are many, which would develop a large Irish audience. Irish people like watching Irish content. The films we have State funded and stored up over many years would bring in huge audiences. The term "niche" does not always mean a small audience. One can have a mix.
The technology available in studios today to knit this together means it can be done very cheaply. I commend the Irish Film Board and James Morris in particular for his vision on this project and the way it can be done to a high quality with a very low budget. Archive and international material is available at a relatively low cost. The Irish Board Film is satisfied that it can clear copyright issues for most Irish movies in terms of the rights of RTE and others that may exist. Everything is in place to make this happen. It is running into an economic storm which will make it more difficult to get it up and running. I want to include the possibility of advertising as one of the revenue streams if it helps us in any way to speed up the delivery of the channel.
The intent remains as it was at the outset. It is to allow for innovative and different television which can use much archive material without huge expense. Primarily, it will not be an advertising channel. It is there only as a provision that may assist us to get it off the ground. It will get off the ground because as an idea its time has come. The technology is available to us. I look forward to us getting on with doing it.
I am anxious to dispose of these amendments before we adjourn the debate.
I wish to make a brief comment. I am not seeking the Minister to establish an Irish version of Sky Movies. I propose that we have a film channel which is a shop window for the talent we have in Ireland for movie making and all of the other broadcasting talent we have here but which would, where possible, be able to pay for itself. It should try to attract new audiences all the time by playing popular films as well as niche films. We are getting there and I look forward to seeing how it develops.
I move amendment No. 29:
In page 35, line 40, to delete "with the requirements of" and substitute "under".
I move amendment No. 31:
In page 36, between lines 25 and 26, to insert the following:
"(7) The Minister shall cause a copy of the report referred to in subsection (6) to be laid before each House of the Oireachtas.”.