Broadcasting Bill 2008 [Seanad]: Report Stage (Resumed).

Debate resumed on amendment No. 43:
In page 45, between lines 42 and 43, to insert the following:
"(g) that advertising, teleshopping material, sponsorship and other forms of commercial promotion employed in any broadcasting service, which relates to the promotion of alcoholic beverages, in particular beverages with a high alcohol content, shall have regard to general public health concerns,”.
—(Deputy Simon Coveney).

I remind the House that amendments Nos. 43, 45 and 47 are being discussed together.

I am trying to remember where we finished our discussion on this.

I am advised that Deputies Coveney has made his second contribution on these amendments. Deputy McManus was making her second contribution when the debate adjourned. Perhaps Deputy Coveney will wrap up the debate.

Yes. We debated these amendments, but no final decision was made. My amendments propose the establishment of a code of conduct on alcohol advertising that will give the broadcasting authority the same powers, in terms of alcohol advertising, that the Minister is giving it in terms of junk food advertising for children. I argued that powers that are appropriate to junk food are also appropriate to alcohol. I hoped the Minister would take that argument on board and thereby decide to accept the amendments.

I accept the Deputy's point about the need for strong regulation of alcohol advertising. As I said during the earlier debate on these amendments, mechanisms in this area are set out in the existing codes that govern the standards and practices that are to be observed by broadcasters, particularly relating to children and the general area of alcohol. Further developments are being co-ordinated by the Department of Health and Children, which is the lead Department taking responsibility in this regard. The measures I have outlined have the support of my colleagues in that Department. I will support them when they take further measures in this area. I cannot accept Deputy Coveney's amendments.

I accept that I will not get anywhere with my alcohol proposals, unfortunately. I would like the Minister to have the final word on my proposals in amendment No. 46, which relates to religious advertising. He is familiar with my arguments in that respect.

We had a good debate on this issue. I intend to give the broadcasting authority greater freedoms in the area of religious advertising. It is seeking such freedoms to reflect the complex variety of issues it needs to address. We are not providing for a complete blanket ban, which might be one approach. If we were to prescribe which advertisements are acceptable, we would not meet every possible circumstance. I am vesting greater authority in the broadcasting authority to make some of the difficult judgment calls that are necessary. That is why I am satisfied my proposals will meet with some success on the part of the regulator, which is looking for a reflective and flexible approach.

Amendment put and declared lost.
Amendments Nos. 44 and 45 not moved.

I move amendment No. 46:

In page 46, between lines 40 and 41, to insert the following:

"(5) A broadcasting code prepared by the Authority under subsection (2)(j) may prohibit advertising in a broadcasting service of religious advertising considered by the Authority to be intolerant of diversity, or divisive in its content or message, indeed the Authority shall reserve the right to prohibit all forms of religious advertising, as was the case prior to the Broadcasting Act 2009, should the Authority deem it necessary to introduce a new code to do so.”.

How stands the amendment?

This amendment relates to religious advertising and I want to press it.

Amendment put and declared lost.
Amendment No. 47 not moved.

Amendment No. 48 in the name of Deputy McManus is related to amendments Nos. 49 to 52, inclusive. Therefore, amendments Nos. 48 to 52, inclusive, may be discussed together.

I move amendment No. 48:

In page 49, line 40, to delete "on" and substitute "including".

This is a modest proposal. It seems the Minister is being excessively cautious in not accepting it. It relates to a person making a complaint. There is a tendency in legislation on occasion to specify what people can do but by being so specific it may mean that certain areas of concern are not included. We should not claim to have ultimate wisdom. The amendment proposes that the word "on" should be replaced by the word "including". It means that the specific areas that can be subject to complaint are included in but are not exclusively the only grounds on which people can make complaints. It seems to be a more advanced way of dealing with the complaints process.

As regards people making vexatious or frivolous complaints, that is allowed for in the legislation. Often we spend our time amending legislation because areas that need to be dealt with in law are omitted from it. This amendment proposes a small change but it is a basic approach that I recommend the Minister might adopt, rather than simply setting out specific areas under which complaints can be made and stating that they cannot be made under any other areas. He should acknowledge that complaints can be made for perfectly valid reasons and can come from quarters and be about issues that may not have been thought of. The world is full of surprises. We should allow for a certain element of range in our legislation.

Section 47 for the first time statutorily requires broadcasters to develop and apply basic procedures in respect of complaints handling, including providing information to the viewing and listening public as to how to go about making a complaint and giving a sense of how long they can expect to wait before receiving a response from the broadcaster. It limits the duty of broadcasters to consider complaints to complaints made in writing and complaints that fall within one of the grounds for complaints to the compliance section set out under section 48. It does so in order to ensure that the burden placed on broadcasters is proportionate and not undue or unnecessary.

Amendment No. 48 proposes to broaden the scope of complaints that must be addressed in the first instance by broadcasters. I fear this amendment would impose an unnecessary open-ended burden on broadcasters, in effect requiring them to consider a wider range of grounds for complaint than currently exists for the Broadcasting Complaints Commission or for its successor, the compliance committee under section 48. As such, I do not propose to accept the amendment.

The Acting Chairman might advise if I may also deal with my amendments Nos. 49, 51 and 52 or if I should return to them later.

Amendments Nos. 48 to 52, inclusive, are being discussed together.

I will deal with them now and move them later.

Amendments Nos. 49 and 51 are minor drafting amendments, which seek to ensure consistency of language in sections 48 and 49 in respect of the compliance committee.

Amendment No. 52 in respect of section 49(24) removes the requirement for right of reply cases heard by the High Court to be heard by a judge sitting alone. Given the specialist nature of the right of reply mechanism, the amended text provides the High Court with the flexibility to use an expert assessor in coming to a decision regarding a request for a right of reply, perhaps leading to speedier decisions, a key element of an effective right of reply system. The text also provides that the High Court may make an order compelling a right of reply, make an order varying the terms of any right of reply required by the compliance committee or make an order refusing the compliance committee's application.

In respect of amendment No. 50, as proposed by Deputy Coveney, I fully understand his concerns regarding the negative impact on the family of a deceased person of the broadcast of inaccurate facts about that person. However, we have to balance those concerns against the chilling effect of any expanded statutory right of reply on the freedom of expression of the press. As such, I do not propose to accept this amendment.

I raised this issue on Committee Stage because it is one about which I feel strongly. I was disappointed the Minister did not bring forward any improved wording in regard to the right of reply of relatives of deceased people. We are talking about cases such as that of the late Liam Lawlor. Following his death, inaccurate, unfair and scurrilous reports were made as to the circumstances around his death, both in the print media and, from what I remember although I stand to be corrected on this, in the broadcast media.

It is not acceptable that we are now passing legislation that does not give a right of reply to a family member or legal representative on behalf of a family when a clear mistake has been made. The Minister will not get a stronger advocate for freedom of the press than me. I have experience of this issue as well in the print media more so than in the broadcast media. This legislation should contain an element that would allow a family to correct the record, particularly in tragic circumstances such as those experienced by the Lawlor family. There are many other potential cases in respect of which families should have a legal right to set the record straight, as opposed to hoping that the broadcaster will set the record straight when facts are clarified.

The relevant section 42(2) states, "Subject to this section, any person whose honour or reputation has been impugned by an assertion of incorrect facts or information in a broadcast shall have a right of reply." My amendment No. 50 proposes to add to that subsection the wording "and should such a person be deceased, then a family member or legal representative shall have the right of reply on behalf of that deceased person".

Is the Minister effectively stating in this legislation that once a person is deceased, he or she loses his or her rights in terms of protecting his or her good name? That is the interpretation of what is provided in this section. This is a problem in regard to legislation involving the print media as well.

A reasoned amendment to the section could be inserted that would not damage freedom of expression or freedom of the media to report on whatever case it may be dealing with. We should not treat a person's relatives or good name any differently once the person is deceased from when the person was alive.

Essentially, in this amendment I am seeking to ensure that people can set the record straight if there has been false reporting around the circumstances of a death or about a person in terms of how he or she behaved when he or she was alive when the person is not there to defend himself or herself. I cannot accept the Minister's point that such a provision would in some way limit the freedom of the press. This issue is about accuracy. It is about people protecting their good names and being required to provide evidence in doing so. This section clicks in only when a broadcast has been shown to be false. Is that not the correct reading of the section? It is only relevant when it has been shown that the broadcast is inaccurate. How does that pertain to freedom of expression in the media? It does not. If there is a report that is inaccurate, impugns a person or damages his or her reputation, there should be a right of reply to correct it, whether the person is alive — as the Minister has rightly proposed in this legislation — or deceased. Otherwise we have the same situation that we have in law, in which the family of a person whose reputation has been damaged cannot sue because a dead person cannot sue. The same flaw is now in this legislation; the family does not have the right to correct the record in cases in which it has been proven to be incorrect.

I am appealing to the Minister to think about this. I am not asking for a lot. If my wording is slightly clumsy, so be it. The Minister has introduced new wording at this late stage for other sections, as I will mention later. I ask him to consider this section. I do not think the wording is particularly clumsy; it limits the provision specifically to the family or to a legal representative acting on behalf of the deceased person. It does not make it any broader than that. We must balance the responsibility for accuracy within the media with freedom of expression and freedom of the press. In the case of people who are deceased we are not getting that balance right, unless I am missing something elsewhere in the legislation that covers the point I am making.

I support Deputy Coveney in this regard. We all recognise that, generally speaking, standards in Irish broadcasting are good, and long may it remain so. Occasionally, however, people have made mistakes, and sometimes that can be extremely distressing for those affected. If that were not the case, there would not be provision for a complaints procedure or right of reply. Of those of us who operate in the public sphere, there are few who have not at some time felt the media have been unfair to us in terms of intrusion into our private lives and so on. However, in this instance, as Deputy Coveney said, it is a clear issue of something factually incorrect having been said. To a family member, it adds to the distress if the person concerned has died and there is no right of reply for the family who are left behind.

I ask the Minister to accept the amendment. It is up to the authority to design the actual scheme and it can consider any difficulties. The one difficulty I see, to be fair to the Minister, is the absence of a timeframe within which the provision could apply. Perhaps there is one, but I cannot see it in the Bill. This could mean a complaint from somebody whose great-grandfather had been a sheep stealer, for example, if it was covered in a history programme. However, the principle that Deputy Coveney has espoused is an important one and we should not lose sight of this. Television is a powerful medium, but when somebody is dead there is no right of reply. It is important that we find some way to establish a right of reply to defend people when they have been maligned, consciously or unconsciously, by a broadcaster.

I understand fully the views of the Members opposite. One of the reasons we are taking this approach is to maintain a certain coherence across the various pieces of legislation that relate to how deceased people are treated in matters such as this. In the Defamation Bill, which recently went to Committee Stage, a similar provision has been maintained whereby the right of reply does not apply to a deceased person. We must be cognisant of the need for consistency across the various Bills and Acts in terms of the treatment of dead versus living persons with regard to complaints.

In the current BCI code of programme standards, which we are hoping to strengthen, the section on news, current affairs and documentaries states, "Factual programming shall ensure that the dead are treated with respect", and there are a number of different aspects to this. Thus, there are certain codes in place that provide controls. As I said, because of the historical precedent that defamation does not apply to those who are deceased, we do not want to have a two-tier approach, and thus I am reluctantly unable to accept Deputy Coveney's amendment.

That is unfortunate. I do not say this very often, but the Minister is misguided in this case. The Minister's mention of the BCI code that requests that broadcasters treat the dead with respect misses the point totally. We are talking about reporting, potentially, on the death of a person or actions that took place immediately before his or her death. Are we seriously saying we will not allow correction of the record because someone has died? Are we enshrining this in legislation instead of asking the authority to come up with a scheme to deal with the issue? As Deputy McManus said, there is no definite timeframe, but it is stated in subsection (5):

In preparing a scheme the Authority shall ensure that—

(a) a right of reply shall be broadcast—

(i) within a reasonable time period subsequent to the request for a right of reply being made, and

(ii) at a time and in a manner appropriate to the broadcast to which the request refers".

I am sorry for harping on about this but I feel we are making a mistake and I want that on the record. We have much to do today with regard to the Bill and I will not call a vote, although I would like to. The Minister is making a mistake and this is regrettable.

I hear what the Deputy is saying and he is entitled to his opinion but, as I said, that is the decision we have taken.

We must deal with amendment No. 48 first as Nos. 48 to 52 are being discussed together.

Amendment, by leave, withdrawn.

I move amendment No. 49:

In page 51, line 15, to delete "its" and substitute "their".

Amendment agreed to.

I move amendment No. 50:

In page 53, line 23, after "reply" to insert the following:

"and should such a person be deceased, then a family member or legal representative shall have the right of reply on behalf of that deceased person".

Amendment put and declared lost.

I move amendment No. 51:

In page 55, line 16, to delete "it considers" and substitute "they consider".

Amendment agreed to.

I move amendment No. 52:

In page 57, to delete lines 11 to 17 and substitute the following:

"(24) The High Court may, as it thinks fit, on the hearing of the application make an order—

(a) compelling compliance with a decision under subsection (17),

(b) varying a requirement under subsection (17), or

(c) refusing the application.”.

Amendment agreed to.

Amendments Nos. 53 to 55, inclusive, and 57 and 58 are related and may be discussed together.

I move amendment No. 53:

In page 59, line 9, to delete "subsection (1)” and substitute “subsection (2)”.

Amendments Nos. 53 and 55 deal with incorrect subsection references in the text of sections 50 and 52, while No. 54 excises text in section 51(1)(b) rendered superfluous as a consequence of amendments on Committee Stage. Amendments Nos. 57 and 58 relate to section 56, which outlines the matters to be taken into consideration by the High Court and the broadcasting authority of Ireland when determining the amount of any financial sanction to be imposed on a broadcaster. The amendments rectify the text by substituting the word “co-operate” with the word “comply” in the context of consideration as to whether a broadcaster has co-operated with an investigation under Part 5 of the Bill.

Amendment agreed to.

I move amendment No. 54:

In page 59, lines 24 and 25, to delete ", as the case may be,".

Amendment agreed to.

I move amendment No. 55:

In page 60, line 24, to delete "55(2)” and substitute “55(3)”.

Amendment agreed to.

I move amendment No. 56:

In page 60, line 36, to delete "or 106(3)” and substitute “106(3) or 127(6)”.

Amendment agreed to.

I move amendment No. 57:

In page 64, line 36, to delete "comply with an" and substitute "co-operate with the".

Amendment agreed to.

I move amendment No. 58:

In page 65, line 40, to delete "comply" and substitute "co-operate".

Amendment agreed to.

Amendment No. 59 arises out of committee proceedings. Amendments Nos. 59 and 60 are related and may be discussed together by agreement.

I move amendment No. 59:

In page 70, line 31, to delete ”section 179(2))” and substitute “section 180 (3))”.

Section 62 effectively precludes persons who have been convicted of an offence in respect of illegal broadcasting under wireless telegraphy legislation from being awarded a sound broadcasting licence for a period of three years. Amendment No. 60 addresses concerns raised by Deputies on Committee Stage that the exclusion period of three years is too long and may act as a disincentive for a pirate operator to regularise his or her position. In this regard, it is proposed to reduce the exclusion period to one year. Amendment No. 59 addresses a referencing error in section 62.

Amendment agreed to.

I move amendment No. 60:

In page 70, line 32, to delete "3 years" and substitute "12 months".

I welcome the Minister's pragmatic approach in this amendment. We were all agreed on Committee Stage that the provision whereby a person convicted of an offence relating to pirate radio activity would be unable to obtain a licence for up to three years was excessive. Our objective is to encourage people to move from pirate radio into licensed broadcasting. There must be a rap on the knuckles in terms of a period in which a licence will not be granted, but 12 months is more than enough. Whatever legal sanctions may apply in terms of fines or imprisonment should be imposed as appropriate. However, banning such persons from applying for a broadcasting licence for three years defeats the whole purpose of seeking to shift talented broadcasters out of the shadows into the light. The reality is that many of our successful broadcasters and disc jockeys on well known licensed radio stations were pirate broadcasters in the past. Much of our broadcasting talent comes through that underworld.

This amendment represents a practical response in terms of seeking to remove illegal broadcasting from the airwaves and to encourage existing talent into licensed broadcasting. I welcome the proposal.

Amendment agreed to.

I move amendment No. 61:

In page 71, line 3, after "of" to insert ", and seeking to provide a social benefit to,".

Amendment agreed to.

I move amendment No. 62:

In page 75, line 13, to delete "section 65(9)” and substitute “section 65(8)”.

Amendment agreed to.

I move amendment No. 63:

In page 75, line 43, to delete "7 years" and substitute "10 years".

Amendment agreed to.

Amendments Nos. 64 to 66, inclusive, 69, 70 and 88 are related and may be discussed together by agreement.

I move amendment No. 64:

In page 76, line 12, to delete "applicant" and substitute "application".

Amendments Nos. 64 to 66, inclusive, are minor drafting amendments necessary to excise errors and improve the clarity and consistency of the text of the Bill. Amendments Nos. 69 and 70 arise as a consequence of the Committee Stage amendment to section 77, which placed a "must carry" obligation in respect of the Houses of the Oireachtas channel and the Irish film channel on the provider of an appropriate network, for example, a digital cable network. Amendment No. 70 amends subsection (7) of section 77 to preclude an appropriate network provider, such as a cable operator, from levying a specific charge on viewers in respect of accessing the Houses of the Oireachtas channel or the Irish film channel.

Amendment No. 69 amends subsection (2) of section 77 to empower the Minister to make an order on foot of a proposal from the broadcasting authority of Ireland to remove the "must carry" obligation in respect of broadcasts of the Houses of the Oireachtas channel or the Irish film channel from a particular class of appropriate network provider, for example, networks not used by sufficient numbers as a primary means of receiving such broadcasts. This is in line with the European view that "must carry" obligations should not be imposed in a disproportionate manner.

Amendment agreed to.

I move amendment No. 65:

In page 79, line 13, to delete "Commission" and substitute "BCI".

Amendment agreed to.

I move amendment No. 66:

In page 80, lines 41 and 42, to delete "under section 77(2)” and substitute “referred to in section 77(1)”.

Amendment agreed to.

I move amendment No. 67:

In page 81, line 3, after "of" to insert ", and seeking to provide a social benefit to,".

Amendment agreed to.

I move amendment No. 68:

In page 83, between lines 20 and 21, to insert the following:

"(11) Community content provision contract holders are exempt from any fees and are to be provided with a minimum level of service identifying the programmes being broadcast.".

Amendment put and declared lost.

I move amendment No. 69:

In page 85, line 1, to delete "subsections (4)” and substitute “subsections (3), (4)”.

Amendment agreed to.

I move amendment No. 70:

In page 85, line 31, to delete "subsection (4)” and substitute “subsection (3), (4)”.

Amendment agreed to.
Amendment No. 71 not moved.

I move amendment No. 72:

In page 86, after line 52, to insert the following:

"78.—(1) The Authority shall not conclude a satellite content contract with a person for the purpose of material being supplied for its transmission as a broadcasting service (intended for reception in the State) by means of a satellite device unless satisfied that recipients of the service will be in a position to receive by satellite device each free to air service provided by RTÉ, TG4 and the television service programme contractor as a basic programme service.

(2) This section applies to satellite content contracts whether concluded before or after the passing of this Act.

(3) In this section—

"basic programme service" means the programme material made available to persons by means of a satellite device at the lowest rate in any scale of charges that are made for the reception of such services by means of a satellite device;

"free to air services" includes such free to air services as are available at the date of passing of this Act.".

Some people who have had satellites fitted have found they cannot access the indigenous channels, namely, RTE1, RTE2, TV3 and TG4. This is a matter of concern for older people in particular who may avail of satellite packages because they offer good value. However, the reality is that people may not be able to access via satellite the channels they have paid for through their television licence. Having exercised their right to choose the means by which they receive their television service, they find they cannot receive the channels for which they have paid.

Section 30 of the Broadcasting Act 2001 provides that no person within the jurisdiction of the State can supply a satellite television service for reception in the State or elsewhere unless he or she has a satellite content contract from the Broadcasting Commission of Ireland. Section 71 of the Bill before the House amalgamates satellite content contracts and several other contract types into a single contract format, the content provision contract. Section 77 of the Bill addresses the issue of rights of carriage of RTE, TG4 and television service programme contractors, such as TV3, on broadcasting platforms, also known as the "must carry" requirements. "Must carry" is a concept long established in both domestic and European law and is based on the idea that certain television channels should be made available to the public on any television platform in a particular jurisdiction. These channels are generally the public service channels, and the intention is that all television viewers, regardless of platform, should have access to them. This reflects the fact that viewers may already have paid for these channels, for example, by means of the television licence fee or that it is appropriate that certain channels should always be available in the context of cultural identity and diversity and media pluralism.

In Ireland the must-carry channels have traditionally been RTE, TG4 and TV3. In respect of cable systems, community channels are also granted must-carry rights. Section 77 rewrites the framework around the must-carry provision and updates it in line with European law and terminology. The Bill, as amended on Committee Stage, requires that the primary channels, namely, RTE, TV3 and TG4, will be carried on all suitable electronic communications networks that supply television broadcasting services, where such networks fall under Irish jurisdiction. These include cable, IPTV, mobile and MMDS and satellite. Section 77(7) provides that the network provider, subject to the must-carry provision, may not levy an additional fee on viewers in order that they might view the must-carry channels, such as, for example, RTE, TG4 or TV3. In such circumstances, I cannot accept the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 73:

In page 87, to delete lines 27 to 37 and substitute the following:

"81.—(1) The number of members of the board of a corporation shall be 12 in number, of which—

(a) 6 of them shall be appointed by the Government on the nomination of the Minister,

(b) subject to subsection (2), 4 of them shall be appointed by the Government on the nomination of the Minister,

(c) one shall be appointed by the Government following an election in accordance with section 83, and

(d) one shall be the director general of the corporation.

(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 84(12)

(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.”.

Amendment agreed to.

I move amendment No. 74:

In page 88, line 2, to delete "subsection (1)(b) and section 84(12)” and substitute “subsection (2)”.

Amendment agreed to.

I move amendment No. 75:

In page 88, to delete lines 20 to 27.

Amendment agreed to.

I move amendment No. 76:

In page 89, between lines 3 and 4, to insert the following:

"(2) The board of a corporation 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,

(b) broadcasting,

(c) digital media technologies.”.

Amendment put and declared lost.
Amendment No. 77 not moved.

I move amendment No. 78:

In page 91, line 32, after "Oireachtas" to insert "and published in the Iris Oifigiúil”.

Amendment agreed to.

I move amendment No. 79:

In page 92, line 32, after "Minister" to insert "under section 81(1)(a)”.

Amendment agreed to.

Amendments Nos. 80, 87, 89, 104 and 106 are related and will be discussed together.

I move amendment No. 80:

In page 95, between lines 8 and 9, to insert the following:

"(e) ensure that the corporation acts responsibly in commercial dealings and in a manner that recognises the competitive market for broadcasting activities in Ireland and does not abuse any position of market dominance,

(f) ensure that any contract between the corporation and an individual or company for which consideration in excess of €400,000 per annum is to be paid to such individual or company, shall be approved by the Minister, with the consent of the Minister of Finance, in advance of their execution,

(g) ensure that a contract between the corporation and an individual or company for which consideration in excess of €400,000 per annum shall not be agreed for a period in excess of 12 months.”.

I must admit that I cannot see a connection between amendment No. 80 and amendments Nos. 89, 104 and 106 and I do not understand why they have been grouped. However, I will outline the position with regard to the two amendments in my name.

Amendment No. 80 relates to the duties of board members and suggests that we should add three such duties to the existing list of four. The first of these new duties would be to "ensure that the corporation [RTE] acts responsibly in commercial dealings and in a manner that recognises the competitive market for broadcasting activities in Ireland and does not abuse any position of market dominance". On Committee Stage we discussed at length the unique position RTE occupies in many ways. For example, it is dual-funded — partly by means of the licence fee and partly through commercial revenue — but it also occupies a position of market dominance and there are responsibilities that arise in respect of this in the Irish marketplace.

It would make sense to stipulate that the board of RTE should ensure that everything it does takes account of the fact that the station occupies a position of market dominance. It must be acknowledged that there is a competitive market in which other broadcasters are trying to survive and also to compete with RTE. I accept that, at times, RTE struggles in this marketplace. RTE's position of dominance, particularly from the point of view of television, must be taken into account.

The other two duties I wish to impose are somewhat more controversial. Staff at RTE yesterday voted to take a pay cut. These are people whose salaries are paid directly by the station. The very high earners in RTE are not on salaries but are, in most cases, paid through media companies. The amendment suggests, therefore, that the board should change the way RTE does its business in the context of how it pays its top earners. In that context, it is proposed that these individuals should be paid on an annual basis rather than being given contracts which last four or five years and which cannot be altered, particularly when, as happened in the past 12 months, the marketplace changed dramatically and advertising revenues dropped by 30% or 40%.

The amendment also proposes that if an individual or a company representing that individual is to be paid to the tune of over €400,000 per year, a system of checks and balances must be introduced. This is because it will be public money which, in part, will be used to pay salaries of this nature. The State, either through the Minister or the new authority, should have some role to play in sanctioning the payment of such salaries.

Ordinary staff at RTE have agreed to take significant pay cuts. However, we have been obliged to rely on the higher earners at the station to, on a voluntary basis, take pay cuts. The latter is due to the fact that, from a legal point of view, RTE is completely snookered in the context of what it can do. It is farcical that public money is being either spent or committed in this way over the period of four or five-year contracts.

I do not buy into the simplistic argument to the effect that the high earners at RTE are so talented that they could simply leave the station and command the same salaries elsewhere. That may be the case for a small number of these people but it is not the case for all of them. If there is pain to be dished out within a large organisation such as RTE, then the high earners should be prepared to take their share of it. There should be no need for the public to exert pressure on certain individuals in order to encourage them to take voluntary pay cuts. Where such pressure is exerted, competition tends to develop among the higher earners with regard to which of them is prepared to make the greatest sacrifice. That is not right because these are highly talented people who deserve to be paid very well because they are at the top of their game.

I have no difficulty with RTE paying its top talent well. However, I have a difficulty with the station committing to four or five-year contracts that cannot be changed when its funding structures change and when everyone else it employs suffers as a result. In such circumstances, there is no way RTE can make savings in the context of the payments being made to its high earners. Amendment No. 80 represents an attempt to try to deal with this matter and I am interested in hearing the Minister's comments in respect of it. I will comment later on amendment No. 89.

It is important that serious consideration be given to these amendments. When the Broadcasting Bill was drafted, times were very different and the revenue accruing to broadcasters was probably not subjected to the same type of scrutiny as is currently the case because there was such a flow of it from advertising. In addition, the rate of the revenue from advertising was increasing year on year. However, the position is very different now and the revenues of RTE and TV3 are plummeting. RTE is, by far, the greatest player in the field. In effect, it is the incumbent.

I would have thought that assessing the way advertising revenues are accrued would be a very necessary part of the oversight being given to the new authority. The legislation contains certain protections but it appears that these do not go far enough. Small competitors frequently complain that RTE is not playing fairly in terms of advertising rates. RTE denies this and I accept what it says, yet the suspicion lingers. What is beyond doubt is that the broadcasting sector is under very severe pressure. People are being asked to make sacrifices and have chosen to do so in order to keep their jobs. That raises very important questions with regard to legislation governing the broadcasting sector, to ensure there is fairness across the board.

Fairness across the board means looking at the situation regarding the high earners. High earners attract advertising revenue. Mr. Cathal Goan was before the joint committee last week and he made the point that much of the advertising rates are dependent on the pulling power of different programmes. Clearly, high earners have tremendous pulling power when one sees, for example, the viewership figures for the "Late Late Show". The two are directly related. When times were good and there was plenty of advertising, high earners earned a good deal but perhaps now that times are not good and advertising revenues are way down, that link should be made again. If the advertising revenue is not so good, then the high earners should not be earning such big salaries.

The BBC is looking for 25% to 40% reductions in the salaries of high earners. This is an indication that the culture of paying people enormous amounts of money needs to be rigorously reassessed. Part of the problem I have is that we do not have the annual report from the RTE Authority. There was a long delay in terms of getting the authority established. We have an interim board and I understand the report is with the Department. I had hoped we would have had it before Mr. Goan appeared before the joint committee. I am not aware we even have it now. That makes it very difficult for us to assess.

I must ask the Minister a question, although I believe he is not the appropriate person to ask, since this should be in the report. An issue arose about the independent sector and Mr. Goan was able to say, in effect, "We shall show, in our report, that the independent sector commitments have been lived up to". That is very good, because when times are good the independent sector gets a good deal of work from RTE, and when times are bad the tap is turned off. I have concerns about the sustainability of the independent sector in terms of funding if that type of reduction in income is so severe. Mr. Goan says that its commitment to the independent sector has been lived up to by RTE. However, the funding of the high earners is not stated in that section of the report relating to RTE salaries. Does it apply in the section of the report that is relevant to the independent sector? If that is the case, it is a distortion in terms of support to the independent sector if all the big salaries earned by high profile people are included.

This is not begrudgery. The same argument applies to the Civil Service and politicians. There has been major criticism, for example, of the fact that the salary of the Taoiseach is on a par with that of President Obama. These are questions we have to answer. I do not believe we can sustain that type of very high earning public servant in the broad sense that we had in the past, and we need to get real about what we can afford as a country. There is no doubt that many people now losing their jobs cannot afford to pay their basic debts and yet we seem to be comfortable with the idea of very high incomes at the other end of the spectrum.

I was talking recently to somebody who had come back from Norway and he told me that there the biggest most popular Saturday night television presenter earns a salary of €100,000. I do not know how Norway came to that situation, but it seems we must have be tough in terms of our assessment of how moneys are allocated across the public service and the semi-State companies if we are to work our way through this recession in a way that people can see is fair. If we fail to do this we will be in a very bad position in trying to ensure there is some type of national effort involving people working together to ensure we can get through the recession.

With regard to the first part of amendment No. 80, as proposed by Deputy Coveney, the members of the boards of RTE and TG4 are obligated to comply with the laws of the land, including the competition law and the role of the Competition Authority. Included in this is the requirement to review any claims of abuse of competition law, as has been done in the Magill case in 1995 regarding television listings and in 2004 in respect of advertising by RTE.

With regard to the second part of the proposed amendment, I fully appreciate that this issue has caused public disquiet in recent times, especially in the light of the current straitened economic circumstances. However, I believe the mechanism being proposed by Deputy Coveney to address the issue of remuneration of presenters in RTE and TG4 does not accord with the objective of ensuring the independence of public service broadcasters from political influences. I do not believe it is an appropriate role for the Minister for Communications, Energy and Natural Resources or the Minister for Finance to set the pay levels of individual presenters. Members of the boards of RTE and TG4 are charged with providing immediate oversight in such operational decisions. The Deputy will be aware that this Bill introduces new and more robust performance measurement mechanisms for RTE and TG4 with a focus on whether value for money has been delivered. That is the appropriate role for Government and the Broadcasting Authority of Ireland in respect of these issues. For these reasons I do not propose to accept Deputy Coveney's amendment.

With regard to amendment No. 89, as proposed by Deputy Coveney, section 124 requires the proposed broadcasting authority to consider on a five-year basis the adequacy or otherwise of public funding to RTE and TG4 to enable them to fulfil their public service objectives and make recommendations as to the appropriate level of public funding. Section 124(9) requires that the Broadcasting Authority of Ireland, in carrying out its five-year funding review, to take into account, inter alia, the current level of public funding available to RTE or TG4 and the level of commercial funding available to the same stations as well as the development of public service broadcasting internationally and to report to the Minister on the matter. In broad terms, the matters raised in amendment No. 89 are already catered for in section 124 and as such I do not propose to accept the amendment.

Amendments Nos. 87, 104 and 106 in the name of Deputy McManus all relate to compliance with section 108. Section 108 imposes a continuing duty on RTE and TG4 to maximise revenues from their commercial endeavours and at the same time ensure that all transactions between their commercial endeavours and their public service objectives are made at an arms length basis, that is, on commercial terms. The duty pertaining to RTE and TG4 under section 108 applies to activities undertaken under section 106. In that respect I believe that amendment No. 87 is unnecessary.

Amendments Nos. 104 and 106 in summary link the public funding of RTE and TG4 and compliance with section 108. Section 108(3) provides that the compliance committee may, at the direction of the Minister, report on compliance by RTE or TG4, with the section's revenue maximisation and arms length provisions. In addition, the provisions of sections 109(9) to 109(13), inclusive provide the accounting information necessary to underpin any review under section 108(3).

Sections 123 and 124 provide both the Broadcasting Authority of Ireland and the Minister with sufficient discretion to consider the outcome of any review under section 108(3) in the context of setting the level of public funding for RTE and TG4. As such, I believe, the issues raised by Deputy McManus in amendments Nos. 104 and 106 are adequately addressed by the mechanisms outlined in sections 108, 109, 123 and 124.

I am in agreement with both Deputy Coveney and Deputy McManus on the issue of very high pay levels in RTE being a source of concern. That was particularly evident in the recent very difficult decisions union members had to take in RTE regarding pay cuts. It seemed that the very high level of pay to executive and certain performers formed a very large part of the debate in RTE at that time and that shows how this is an important issue.

I will give my view and the reason we do not get involved in pay. Deputy McManus said we might have a culture where high pay goes with high advertising ratings. If that develops as a culture in a public service broadcasting institution it is deeply damaging.

If it is, that is not right. The purpose of the public service licence fee payment system is to allow on a regular, systematic basis that prime time slots, which are important in terms of advertising revenues, be given over to programmes that might not necessarily get the high ratings. The reason the licence fee exists is to allow a public service broadcaster to provide a range of different programming which is not judged only on the basis of the ratings it achieves. If that culture develops it undermines the public service broadcasting system.

At the weekend I was fortunate to launch a documentary film festival in Donegal. There were very interesting films on Iranian politics, a couple or family trying to adapt to climate change and a whole range of subjects. It struck me that this type of documentary film that might not necessarily get huge ratings could be part of our schedule to a greater extent to fulfil the public service remit we have. I take the Deputy's point and share her concerns that if we allow a system to develop where ratings are the key measurement of success and where pay is determined by such ratings, it goes away from the spirit and nature of the public service obligation we on all sides of the House would like to see exist.

The Minister did not answer my question on the independent sector.

I do not have the details here but I will check with my officials and return to Deputy McManus. I have the annual report given to me here.

The Minister has the annual report?

The one from the previous year. If Deputy McManus gives me a minute with my officials I will return to her on that.

While I agree with what the Minister just said, it surprises me. RTE chases ratings the same as every other channel. It has a public service remit and on current affairs and sport it does a really good job. However, on most of the television outside current affairs it is all about ratings. RTE defends the salaries it pays to its top earners by saying these are the people who deliver the ratings and the advertising revenue based on that. Let us not be naive on this. RTE is talking about a reality celebrity boxing match, for God's sake. What is that about? Is that about public service broadcasting or ratings? It is about advertising and raising more revenue.

Let us have an honest debate on this. RTE is not a public service broadcaster in the same way the BBC is because it relies on advertising for half its revenue, so it is also a commercial station. We should not apply the same standards that apply to purist public service broadcasters in other countries which have no advertising revenue. People sometimes do that and it is unfair to RTE. The Minister says we should have no role in RTE salaries but I do not accept that. We should know what the top earners in RTE are earning. We only find out three years later. The most up-to-date figures are from 2006.

Some of this is public money and we are entitled to know how it is spent, who it is spend on, how much is spent and whether people justify that level of pay. Given how it is structured through media company structures whereby people are paid indirectly through contracts that are negotiated for two, three or four years, we do not have that information. The Minister needs to address that.

I will withdraw my amendment No. 80 because the proposal on setting the figure of €400,000 is a little clumsy, but I wanted to table the amendment to make the point. It is not political interference for the Minister to ensure the Oireachtas knows how much is being spent on salaries and on whom. We know how much the employees and the Director General are paid in RTE, and rightly so because he has to publish that every year. Yet we do not know how much the high earners are being paid.

We recognise that in international terms RTE is an unusual hybrid of commercial and television licence funding. There is constantly an issue of balancing between the two, and generally RTE does a very good job. However, the difficulties being experienced by RTE require us to be very rigorous in examining how things are done in our national broadcaster. There is a clear time lag between how contracts are written up for high earners and how advertising revenue can suddenly plummet in a matter of months. We do not have the report. We should have the report and it is the Minister's responsibility to get the report out. I ask again why we have not got it.

The information will not even be in it.

That is my second point. Even when it is published it will be two years out of date on this issue. I am not saying the star performers should be paid on the basis of how much advertising revenue they can bring in, because that would be the road to hell. However, because of how the advertising structure works, the programmes with the higher ratings can charge more for advertising, and the programmes with the high ratings tend to have the star performers. We know this because Mr. Cathal Goan has explained it to us. There is a correlation and we must recognise that.

Some of the big performers have recognised it in the sense that they have accepted a reduction in pay. That should be much more the way to go in terms of fairness within the structures of RTE. Other than that, people feel very alienated by what is going on. The Minister says he agrees with me on the culture; it is up to him to ensure we do something practical to get the right outcome.

We are doing practical things. A new provision is set out in section 116(9)(b) that there will be a requirement on the report that goes to the Minister from RTE that the name or corporate identity of persons commissioned to make independent television broadcasting programmes will be made available. That is a new provision, so that is change we are putting in place. The latest report is due to go to Government before the end of this month and then to be made more widely available.

While we have a hybrid model, we still have public service obligations and public service money going into RTE and that gives us the authority to say to any such station that it will not be a station with ratings as the measure of success and that it will have to give prime time slots that might otherwise be very lucrative——

We are not arguing that point; we are trying to ensure RTE can survive.

One must have a commercial, successful channel at the same time. That licence fee income gives the requirement to sometimes provide programming that would not necessarily get the highest rating but fulfils the public service remit. The second practical development to ensure that public service obligation is fulfilled is the introduction of a new single regulator which has an oversight role in RTE. Referring to our earlier discussion where we were asking if the board members of RTE should have that role to ensure that they recognise that this is a market for their other broadcasters, they may have that in mind but it is crucial that regardless of that there is an oversight regulator across all broadcasters here that recognises that there are certain standards and public service obligations which we require by dint of having a public service funding element. That is to fulfil our European obligations and we have had detailed discussions with the European Commission in that regard. It is also to fulfil the public service obligations that we as parliamentarians reflect and represent. That is the core purpose of establishing this new authority. The Members opposite will have the opportunity to appoint members of the authority who are mindful to ensure such public service obligations are met.

Deputy Coveney has the right of reply if he wishes.

May I reply on my amendment No. 89 as I will not have a chance to come back on that later?

I agree with the Deputy that amendment No. 89 does not seem to bear any great relationship with the others and when we reach amendment No. 89 the Deputy should be allowed to make a contribution, unless he wants to do it now.

I can do it now as it will not take much time. I suspect the Minister will not accept it. However, I want to make a point. Section 124, which the Minister claims caters for what I am trying to provide in amendment No. 89, does not really deal with it. There is more than a subtle difference between the two. Section 124(8) states: "The Authority shall within a period of not more than 3 years after the passing of this Act, and every 5 years thereafter, or as directed by the Minister, carry out a review of the adequacy or otherwise, of public funding to enable a corporation to meet its public service objects." That basically calls for a review of whether RTE is getting enough public money to ensure that public service broadcasting can continue. I am asking that on a three-yearly basis or whenever the Minister requests, we would get a report from the broadcasting authority — not RTE — outlining what funding arrangements are in place for public service broadcasting in other EU states. This would allow us to analyse the trends in public service broadcasting, how it is funded and how that funding is collected and channelled. We will come to that later when we deal with that section. Amendment No. 89 provides that the report will have particular reference to: the amount of subsidy; the percentages of total revenue made up by subsidy and commercial revenue; and the arrangements in place to ensure fair commercial activity in the market place, which is the kind of thing about which Deputy McManus spoke earlier. That is quite a different report from one analysing whether RTE and TG4 are getting adequate funding.

Section 124 does not deal with what I propose in amendment No. 89. It would be very useful for the Minister and his successors to review best practice elsewhere in Europe to ensure that our funding mechanisms are correct and that we have the right balance between commercial activity in the broadcasting sector and a very proactive policy in terms of public service broadcasting.

Section 124(9)(f), which provides that the authority shall take account of “developments in public service broadcasting internationally”, does exactly that. It gives it the opportunity to take cognisance of what is specified in amendment No. 89.

It is in the context of whether RTE is adequately funded and not in the broader context of the market.

Amendment, by leave, withdrawn.

I move amendment No. 81:

In page 95, to delete lines 29 to 35 and substitute the following:

"(6) The quorum for a meeting of the board of a corporation shall be 7.

(7) Subject to any rule made under subsection (5) meetings of the board of a corporation shall be capable of being held by telephone or other suitable electronic means whereby all the members of the board can hear and be heard.”.

Amendment agreed to.

I move amendment No. 82:

In page 101, to delete lines 22 and 23.

Section 96 places a statutory requirement on RTE and TG4 to establish audience councils to represent the views and interests of the general public to the boards of the two corporations. It proposes that RTE and TG4 should select the membership and chairpersons of their respective audience councils with a view to ensuring that such membership is representative of the viewing and listening public. The section also proposes that one member of the board should sit on the audience council to act as a conduit between the board and the audience council but precludes him or her from acting as chairperson. The rationale for such an approach was to ensure the audience council would not be perceived as a pure creature of the board of RTE or TG4. However, having listened to Deputy Coveney's arguments on Committee Stage, I propose to remove such preclusion.

Amendment agreed to.

Amendments Nos. 83 to 86, inclusive, are related and may be discussed together by agreement.

I move amendment No. 83:

In page 103, line 34, to delete "statement" and substitute "Charter".

We already had this discussion on Committee Stage. A charter is much stronger than a statement. A statement is a signal of intent. A charter is a set of rules with which a corporation must comply. A charter which is enforceable is the appropriate term in this section instead of "statement". From the Committee Stage discussion I know that Deputy McManus had a similar view.

I would like to primarily focus on amendment No. 85, which proposes:

In page 104, to delete lines 13 to 15 and substitute the following:

"(a) The nature and number of hours of children’s programming, including animation and children’s programming in the Irish language, to be broadcast by the corporation, that shall include a minimum of 30 per cent of programming originally produced by the organisation and/or independent Irish producers,”.

We had a very constructive discussion on Committee Stage on children's programming, about which I know the Minister cares as evidenced by his codes of conduct on advertising of junk food and so on. Amendment No. 85 proposes to try to ensure that programming targeted at children has an Irish flavour to it as opposed to allowing broadcasters take the soft option of simply importing programmes like "The Simpsons" from across the Atlantic to fill the children's programme slots.

To be fair, RTE in particular has made considerable efforts to promote home-grown children's programming, on which it should be commended. We should insert a signal in the legislation specifying that children's programming by Irish broadcasters should have at least 30% Irish content, whether that is home-grown within the corporation or through the independent production sector. There is a particular talent within the Irish independent production sector for animation, for example, that should be encouraged, supported and used by Irish broadcasters.

The Bill already mentions the need to take account of children's needs. However, there is no substitute for home-grown Irish-based and Irish-backed programming which is more in tune with young people in Ireland rather than simply buying in the cheapest or most populist option for children to watch. Thirty per cent is a reasonable request and, as it happens, is pretty close to the existing practice. It should ensure if times remain tough in terms of funding that children's programming will still have a 30% home-grown content rather than making cutbacks in that area and in doing so providing an increasing majority of children's programming from abroad. I hope the Minister will accept the amendment.

I ask the Minister to have a very open view on this amendment. We tend to think in terms of adults when we talk about public service programming, but the reality is that children spend more time watching television than adults do. They are highly influenced by what they watch and the vast bulk of what they watch is foreign. A unique contribution can be made by RTE, which provides children's programmes, to make the type of programmes that can inform children and ensure that they are not overwhelmed by a lack of some kind of identification with their own society. I know there are difficulties in setting rigid targets for RTE or for anyone else, but this amendment is framed simply to provide that the principle of public service broadcasting is included in that part of broadcasting directed towards children. Otherwise it is hard to see how it can be done. We could have lots of educational programmes that children watch, but which do not in any way relate to the Irish experience. I ask the Minister to take on board the points that have been made and the general viewpoint on indigenous programming for children. Quite apart from the jobs involved, which are self evident, there is also an issue of the child's identity and how messages are received by a child from television as to our place in the world and our own culture in a social context.

I propose to move amendments Nos. 84 and 86. Amendment No. 84 tries to address some of the concerns that were raised on Committee Stage by Deputies in respect of the broadcasting of original children's programming by RTE and TG4. I share the Deputies' views regarding the key role to be played by public service broadcasters in respect of children's programming and the need to oblige public service broadcasters to set out their proposals up-front in terms of their Irish stories for children living in Ireland. Amendment No. 84 strengthens the focus on new material relevant to children in Ireland, either created by the public service broadcaster itself or commissioned from an independent producer, as opposed to acquired programming.

As regards amendment No. 85 proposed by Deputy Coveney, I believe the imposition of a quota would be too blunt an instrument for what is a dynamic area. The process laid out in the Bill of requiring RTE to lay out its proposals for children's programming, and subjecting such proposals to review, is a better way forward. I would also have serious concerns as to whether the specific reference to independent Irish producers, proposed in the amendment, would comply with our obligations under EU treaties and, as such, I do not propose to accept amendment No. 85.

In respect of amendment No. 86, Deputies will recall that the purpose of section 102 was to introduce a more robust and sophisticated performance measurement framework for public service broadcasters. Amendment No. 86 is intended to strengthen this framework further by ensuring clarity around the expected timelines for the delivery of the annual statement of performance commitments and the associated report on whether such performance commitments have been met.

As regards amendment No. 83 proposed by Deputy Coveney, a charter is in essence a written document that sets out the rights, powers or privileges granted to an organisation or person. For example, the various powers of the BBC are established by means of royal charter, whereas in Ireland the various powers of RTE and TG4 are established through statute, i.e. sections 114 and 118 of this Bill. Section 101 does not involve the granting of powers, rights or privileges to RTE, TG4 or third parties. In essence, the section obligates RTE and TG4 to set out their stalls as to how they will deliver on their public service mandates in the coming five-year period. Section 101(1) states: "The principle to be observed, the activities to be undertaken by the corporation in order to fulfil its public service objectives." In that regard, the phrase "public service statement" is more apt to describe the intended output under section 101, rather than "public service charter". As a consequence, I do not propose to accept amendment No. 83.

Amendment, by leave, withdrawn.

Amendment No. 84 has already been discussed with amendmentNo. 83.

I move amendment No. 84:

In page 104, to delete lines 13 to 15 and substitute the following:

"(a) original children’s programming, commissioned or produced by the corporation, relevant to the social and cultural needs and interests of children in Ireland and including animation and children’s programming in the Irish language, to be broadcast by the corporation,”.

Will I have the opportunity to come back one more time quickly on that because if amendment No. 84 is passed then amendment No. 85 falls?

As they were being discussed together, I would have to go back to amendment No. 83 again.

It is okay then.

Amendment agreed to.
Amendment No. 85 not moved.

Amendment No. 86 has already been discussed with amendmentNo. 83.

I move amendment No. 86:

In page 104, to delete lines 26 to 33 and substitute the following:

"(3) As soon as may be after 31 January in each year a corporation shall submit to the Minister and the Authority an annual statement of performance commitments prepared under subsection (1) and, having consulted with the Minister and the Authority, shall publish the statement, or a summary of it, as soon as practicable, thereafter.

(4) A corporation shall by 31 March in each year submit to the Minister and the Authority a report on the fulfilment or otherwise of any commitments made in a statement prepared under subsection (1) for the previous financial year and an explanation of any difference arising.

(5) A corporation shall include within a report required under section 110 a report on the fulfilment or otherwise of any commitments published under subsection (3) for the period concerned and an explanation of any difference arising.”.

Amendment agreed to.
Amendment No. 87 not moved.

Amendment No. 88 has already been discussed with amendmentNo. 64.

I move amendment No. 88:

In page 110, line 38, to delete "its" and substitute "the corporation's".

Amendment agreed to.

Amendment No. 89 has already been discussed with amendmentNo. 80.

I move amendment No. 89:

In page 111, between lines 5 and 6, to insert the following:

"(7) At the direction of the Minister, or at intervals of no greater than three years, the Authority shall prepare a report analysing the funding arrangements for public service broadcasting in other EU states with particular reference to:

(a) the amount of subsidy,

(b) the percentages of total revenue made up by subsidy and commercial revenue,

(c) the arrangements in place to ensure fair commercial activity in the market place,

(d) the percentage spend on independent production companies of public service broadcasters.”.

Amendment put and declared lost.

Amendment No. 90 arises from committee proceedings. Amendments Nos. 91 to 101, inclusive, are related. Amendments Nos. 91 and 92 are technical alternatives to amendment No. 90, so amendments Nos. 90 to 101, inclusive, may be discussed together.

I move amendment No. 90:

In page 112, to delete lines 13 to 47 and in page 113, to delete lines 1 to 6 and substitute the following:

"112.—(1) It is the duty of a corporation to prepare and publish, within 12 months of the passing of this Act, and every fourth year thereafter, a code of fair trading practice (in this section referred to as a "code") setting out the principles that it shall apply when agreeing terms for the commissioning of programming material from independent producers.

(2) The Authority, having consulted with the Minister, a corporation, and independent producers (or such persons appearing to the Authority to represent them), shall within 6 months of the passing of this Act and every fourth year thereafter, prepare and issue guidance to the corporation on the format of a code required under subsection (1).

(3) The guidance issued by the Authority under subsection (2) shall be general in nature and shall not specify the particular items to be included in a code to which the guidance relates.

(4) A corporation, having considered the guidance received under subsection (2), shall prepare and submit for approval to the Minister a code.

(5) A code shall include reference to a corporation's approach to—

(a) multi-annual commissioning;

(b) that there is what appears to the Authority and the Minister to be sufficient transparency about the amounts to be paid in respect of each category of rights;

(c) timetable for contractual negotiations;

(d) that what appears to the Authority and the Minister to be satisfactory arrangements are made about the duration and exclusivity of those rights;

(e) that procedures exist for reviewing the arrangements adopted in accordance with the code for demonstrating compliance with it.

(6) The Minister shall, in considering a code, consult with the Authority.

(7) On approval by the Minister a code shall be deemed to have come into force and a corporation shall comply with such a code.

(8) A corporation shall ensure that provision is made for resolving disputes arising in respect of the provisions of a code (by independent arbitration or otherwise) in a manner that appears to the Minister and the parties involved to be appropriate.

(9) The Compliance Committee, at the direction of the Minister report to the Minister on compliance by a corporation with a code prepared under this section.

(10) A corporation may with the approval of the Minister, the Minister having consulted with the Authority, revise and publish amendments to a code.".

This amendment concerns the relationship between the corporation and the independent sector. There are issues that need to be addressed, which have been raised with us by independent producers with regard to the commissioning of work and the rights that flow from such work. I imagine it would be a matter for the authority to take an active role in determining fair practice in this regard. I think the Minister is aware of the concerns about the independent sector. When one looks at the changed landscape, given the amount of work that is out there, it certainly is important to have a good and robust approach to how the independent sector itself operates in addition to how commissioning and processing of work is carried out. One issue that was raised on a number of occasions, and which seems to me to be pretty reasonable, was that of rights flowing from a piece of work. Where an independent producer makes a programme, he or she may not have the rights flowing from that programme because they are maintained by RTE, for example. There is no reason RTE would necessarily exploit those rights, but it could be of value to an independent producer to be able to do so subsequently. RTE would argue that it commissions the work so it is entitled to have any rights flowing from it. To an extent, this issue has been addressed in the Bill but the Minister might refresh my memory as to how he approaches that specific issue, which has been raised on a quite a number of occasions by the independent sector.

I support Deputy McManus's amendment. As regards the issue of secondary rights for an independent production company that, for example, has made a programme which has been broadcast on RTE and on which it has done a deal, there was a concern that all the cards are in the hands of the broadcaster, not the production company. In reality, many of these productions will not fly unless there is an agreement with the broadcaster which in most instances, but not always, is RTE. Sometimes it is TG4 or TV3. Those production companies want to have more of a say on secondary rights. In other words, in a year or two, after a series they have produced is finished on RTE, they want the opportunity to sell those productions outside Ireland or, potentially, to another broadcaster in Ireland. As things stand, RTE keeps those rights. The case is made that an artist is more likely to sell his or her work enthusiastically after its initial showing than the corporation or broadcaster that has shown it already and no longer has a use for it, apart from trying to raise some revenue by selling those rights to another broadcaster abroad. For example, if RTE decides to market a programme to the Irish community in the US, who is better placed to do that? Is it a broadcaster or the production company? The Minister did say he would examine the issues raised in Deputy McManus's amendment regarding disputes in the area of secondary rights.

I have difficulty in responding to the large grouping of amendments, so I will come to that issue in more detail——

The amendments are quite different, yet they have all been lumped together.

They have, but I want to address each of them, including my own amendments Nos. 93, 95, 96 and 99. I will then come back to the specific issue of secondary rights.

Amendment No. 93 places a requirement on RTE to work with independent producers in exploring the possibilities to export programming commissioned by RTE from independent producers. Amendments Nos. 95, 96 and 98 address the issue raised by Deputy Coveney on Committee Stage in respect of RTE's ability to take up and fund part completed programmes which it did not originally commission, within the context of the independent programme account in section 116. These amendments revive the original wording used in section 4 of the Broadcasting Authority (Amendment) Act 1993. Amendment No. 99 is a minor amendment to Part 1 of Table 1 of section 116, reflecting the changed timeline for likely enactment of the Bill.

Amendments Nos. 90, 91 and 92 submitted by Deputy McManus propose to amend certain aspects of section 112 of the Bill, which deals with the proposed code of fair trading practice. Amendment No. 90 addresses the following five issues: the initial timescale for preparation of a code of fair trading practice by RTE and TG4; the amounts to be paid in respect of different categories of rights purchased by RTE or TG4 from independent producers; the duration and exclusivity of rights purchased by RTE or TG4 from independent producers; review of RTE or TG4 compliance with a code; and the provisions for resolving disputes.

In respect of the first issue, I believe that the timeframes already contained in section 112 are appropriate to what is a complex issue, namely, that the BAI must produce guidelines within 12 months of establishment and that RTE and TG4 must produce a code within 15 months of the passing of this Act. A key consideration here is the initial workload on what will in effect be a new organisation within its first 12 months of operation. On the second issue, I do not agree that the codes should be specific on the amounts to be paid. Given the complexity of the product involved, I would argue that this is best left to market negotiations between the parties. In respect of the third issue, I believe that subsection (6) of the Bill as passed on Committee Stage addresses the issue raised by the Deputy. It requires RTE and TG4 to address in their codes issues of duration and exclusivity for the various categories of rights they intend to acquire.

There is common agreement across the House that we need to strengthen the hand of independent producers in any such code. We want to give them the ability to go out and market their produce, to have secondary rights that they can sell on, and recognise that rights accrue where artistic endeavour is involved. In the application of the code, we will be looking to strengthen the hand of independent producers and to give the BAI clear directions in that regard, which it now has the legislative means to effect. Adequate procedures for compliance review are already contained in the section, in particular in subsections (9) and (10).

Whether dispute resolution procedures provided for in a code are suitable and adequate is a matter for the Minister and the BAI, in consultation with interested parties. However, I would argue that this is not a matter that should be subject to the veto of interested parties, as is the case with the proposed wording in amendment No. 90.

Amendment No. 23 to section 25 places a requirement on the proposed BAI to "provide a regulatory environment that will sustain compliance with applicable employment law". This goes some way towards addressing the issues raised in amendment No. 91 and as such, I do not propose to accept the amendment. Section 112 requires the BAI to consult with independent producers and RTE or TG4, prior to the preparation of guidelines under subsection (2). This is the appropriate mechanism for formal consultation on this issue, and as such I do not propose to accept amendment No. 92.

Amendment No. 94 proposes that RTE should invest 1% of its television IBD revenues in film. RTE does invest in film, albeit on a limited basis, and section 114(4)(n) of the Bill gives it the explicit powers to do so. However, this is ancillary to the core function of RTE or TG4 to provide a national television service, and therefore should not be specified on a mandatory basis, even though I support the intention behind the amendment. It is similar to the codes on children’s programming. We must be careful not to apply blunt instruments when legislating. I agree with the Deputy’s intention, but I am reluctant to set a specific mandatory target.

Amendment Nos. 97 and 100 from Deputy Coveney address the amount that RTE is statutorily required to spend on independent production. I understand the Deputy's concerns that in the current economic climate, independent producers would suffer disproportionately in any necessary cutbacks. The corollary to this is the need to retain a strong in-house production capability. In essence, the Deputy proposes a percentage of commercial revenues and licence fee revenues attributed by RTE to its television cost centre, as opposed to an indexed fixed figure as is currently stated in section 116. This approach suffers from definitional issues, especially the legal definition of the "Television Integrated Business Division". Therefore, I do not propose to accept these amendments.

Amendment No. 101 proposed by Deputy McManus addresses the statutory requirements on RTE in respect of the commissioning of radio programming from independent producers. Section 116 of the Broadcasting Bill 2008, as passed by Seanad Éireann, proposes that RTE be required to expend a minimum of 3%, and may spend up to 5%, of the value of the independent production account over a period of five years beginning in 2009. While 3% is a significant figure, it is important that we do not lose sight of the primary objective of section 116 when focusing on the percentage levels. The objective is to ensure that RTE fully engages with the independent radio production sector to the benefit of all, including RTE, independent radio producers and, most important, the listening public. I have no doubt that such engagement will result in commissioning in excess of the statutory requirement over time, as has been the case with independent television production. The differential between the required 3% and the optional 5% allows RTE some flexibility to ensure this policy departure does not unnecessarily damage RTE's in-house production capacity. The current text of section 116 will serve to achieve such engagement. Therefore, I do not propose to accept amendment No. 101.

I do not blame anybody here, but it is very unsatisfactory that we have quite a disparate group of amendments clumped together. I do not know how the mindset works, but it does not make much sense to me. We are dealing with many different things all at once.

The concern expressed in amendment No. 92 is that the Bill provides for a code to be set out by the Minister and the corporation would have to comply with it, but there would be no ongoing relationship with the independent sector for any difficulties that would arise. That is why I put forward this amendment.

I accept that the Minister has made an effort to make RTE co-operate with independent producers in marketing programmes outside the State, in order to exploit the potential of programmes that have been made. It is not clear to me that the Bill deals with the fundamental concern. I would have thought that it was in RTE's interest to co-operate. It seems odd there is a question of having to put that in legislation. If we are talking about the issue of rights and secondary rights we must go further than what the Minister is doing. Very often, the difficulty is that RTE does not have a direct interest in promoting and exploiting, whereas the independent producer has a greater interest in doing so but may not have the resources to pursue it.

Regarding film, I know the argument about setting targets, which seem very modest. The Minister has no problem setting targets in other parts of this Bill. I thought this was a floor we would not fall below rather than being penal.

I thank the Minister for tabling amendments Nos. 95 and 98. These arise as a result of an issue raised with me, which I raised with him on Committee Stage and they concern assisting in the completion of independent television or sound broadcasting programmes. That is welcome and my concern has now been dealt with.

I will focus on amendment No. 97. There has been ongoing discussion through the consideration of this Bill on whether we should require RTE to provide a percentage of television revenue to independent production or stipulate a figure. The Minister has said he does not like setting figures because it is a blunt instrument yet in this case we are setting a figure of €40 million. A more subtle and appropriate way of doing this is to set a percentage figure because that takes account of RTE revenue, how much it can afford to spend and how much it spends on everything else. The major fear of independent production companies is that, in order to cut costs, they would be the ones first to be cut because they are easy pickings. That is not likely to happen in a significant way because RTE is very reliant on the skills base that exists in the independent sector. The percentage figure is the more appropriate way of dealing with this although I am told the Minister is not inclined to accept this. However, this is a mistake.

If I understand Deputy McManus correctly, she is concerned about the guarantees for the independent sector and what recourse it will have. One of the provisions is that the authority must return to the code on a four yearly basis and that provides a check on how it is working.

It does not have to consult with the sector.

The experience of authorities in similar codes is that they do. It is common practice and although it does not exist on a statutory basis the sector can make its views known through representations. The directions I would give any such authority is that we want to see the sector strengthened. Everything we are doing is to continue the successful development of independent production. This has benefit not only for broadcasters as a resource but as an economic opportunity in the State to create employment and to create an industry. This is happening in the film industry with tax breaks, some of which have been greatly beneficial in the past year. The digital media services area is merging with the broadcasting area. Everything we are doing is to further strengthen the independent production sector.

Deputy Coveney referred to setting a percentage or a figure. Neither should be seen as the limit of what should be produced. The figure for independent production last year last year was significantly above the baseline figure. This is a baseline figure and it is a back stop check. It would not be in the interests of RTE, in responding to a difficult economic situation, to change from a successful strategy in the use of independent production, and this is something we would keep an eye on.

Amendment, by leave, withdrawn.
Amendments Nos. 91 and 92 not moved.

I move amendment No. 93:

In page 113, between lines 6 and 7, to insert the following:

"(12) RTÉ shall co-operate with independent producers in the marketing outside the State of sound broadcasting and television programmes commissioned by RTÉ from independent producers.".

Amendment agreed to.

Amendments Nos. 93a, 101a, 148a, 148b and 149 are related and may be discussed together.

I move amendment No. 93a:

In page 113, line 13, after "continues" to insert "in being".

These amendments relate to the continuous provisions in sections 113(2), 117, 174(2) and 175(2). The Parliamentary Counsel has proposed that the phrase "continues" should be replaced with "continues in being". For example, in section 175(2) "the phrase BCC continues" will become "BCC continues in being". These changes are being proposed to ensure consistency with existing drafting precedents in other statutes such as the reference to the social insurance fund continuing in being in section 9 of the Social Welfare Consolidation Act 2005. I am amused by the language.

Is it possible to have non-continuous being?

We are allowed to laugh in here every now and again.

Perpetuities, a life or a life in being.

What is funny is all the numbers followed by the philosophical twist. In respect of amendment No. 149, section 179(3) of the Bill provides that the board members of RTE and TG4 are appointed by the Government under the Broadcasting Authority Act 1960, as amended, or under the Broadcasting Act 2001 may continue to serve as board members of RTE or TG4 for the unexpired period or for their terms of employment. Amendment No. 149 is a minor drafting amendment to ensure clarity in the text of section 179(3). I would love to hear the views of the Deputies opposite on "to be or not to be".

Will we get them, Deputy Coveney?

We will not get a chance to debate this properly. There is no issue with some of the drafting amendments. What is the procedure relating to the introduction of new amendments half way through Report Stage? I was not aware this was possible. Perhaps the Minister is entitled to do so but the Opposition spokespersons are not. Will the Ceann Comhairle advise us when the debate resumes later?

Is the Bill to be recommitted in respect of these amendments?

We are saved by the bell.

Debate adjourned.