National Cultural Institutions (National Concert Hall) Bill 2015: Committee Stage

Sections 1 to 7, inclusive, agreed to.
SECTION 8
Question proposed: "That section 8 stand part of the Bill."

I want to acknowledge and welcome the change to this section, as drafted, when presented to the committee for pre-legislative scrutiny. I welcome also that the Minister took on board the views of the committee during the pre-legislative phase around the independence of the National Concert Hall. It is clear she listened carefully to the views of the committee in regard to the independence of the National Concert Hall as an institution, which I welcome.

I commend the introduction of this section. The independence of the National Concert Hall is important. It would be much more independent if all the principal officers were not directly appointed by the Minister. That concerns me a little, as does the exclusion of Members of Seanad Éireann. In continuance of public policy-----

Sorry, Senator, that issue will be dealt with later by way of an amendment.

Yes, but I wish to speak about it now on the basis of the independence of the National Concert Hall.

Section 10 deals with the issue of appointments.

Yes, but I am making the point-----

Would the Senator not prefer to wait and make his points on section 10?

Not really. I would like to make a brief reference to the issue now, if I may.

Generally speaking, appointments are openly advertised and the people elected come from within that process. It is not clear to me that this system will be employed in this instance. However, I welcome the introduction of this section.

Question put and agreed to.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."

I welcome that section 9 acknowledges the increased role of the National Concert Hall, including from a commercial perspective. As I was unable to be here for the Second Stage debate I wish to put on record now that the reason I am not ultimately opposing the Bill is because much of the work done during the pre-legislative scrutiny stage has been taken on board.

Question put and agreed to.
SECTION 10

I move amendment No. 1:

In page 7, to delete line 35 and substitute the following:

"(3) The chairperson of the Board shall be democratically elected by the members of the Board.".

Sinn Féin indicated on Second Stage that it would be bringing forward an amendment to this section. This amendment stems from the fact, as alluded to earlier by Senator Norris, that while section 8 provides for the independence of the National Concert Hall, section 10 provides that the board and the chairperson of the NCH are to be appointed by the Minister. This amendment proposes the deletion of line 35, page 7, and the substitution of the following: "The chairperson of the Board shall be democratically elected by the members of the Board." We do not believe the Minister should have any major issue with this because, as provided for in the Bill, she will have appointed all of the members of the board.

Surely they would be people of high standing and great integrity who would be respected and who would have it within their ability to appoint somebody suitable from within their own ranks at the first board meeting, or whichever board meeting suits, to the position of chair. We all know the chair is the real driving force of any board and it is important to know who is that driving force. From having served on the boards of voluntary groups and organisations ourselves, we can see that some people have a flair for it and others do not. If there are a number of people on a board in that type of scenario, they are the ones best placed to pick the person they feel will drive this project forward.

We put forward the amendment in good faith. We think it is important in terms of ensuring that our key national cultural institutions maintain a degree of independence and that they are free from excessive political influence. At the least, the Minister or any subsequent Minister would not be accused of interfering or dictating who would be the chair. I believe it is a fair and straightforward amendment and I hope the Minister will accept it in good faith.

I strongly support Senator Ó Clochartaigh on this. It seems the members of the board will be people who are professionally qualified and who have a keen practical and immediate working knowledge of the arts, so they are eminently qualified to make the decision. There is always the possibility that a Minister, although not this Minister in particular, may make a political decision. There was a lot of rubbish talked when I objected to the fact that Members of Seanad Éireann are excluded from membership as a result of a possible conflict of interests. There could just as easily be a conflict of interests in the Minister making an appointment because he or she might appoint a political hack. Ernest Blythe was famous for doing that with the Abbey Theatre, so much so that he practically destroyed it. I do not agree with this.

It also means the board will start off from a weak position. The first thing that happens is the power of appointment of the chairman is removed from the board. I have served on a number of boards and it was always the responsibility of the board to elect the chairman. To have the chairman appointed by the Minister is a negation of this fundamental democratic principle. Unless there is some unsuspected and serious reason the Minister feels she needs to nominate the chairman, I think she would do well to take Senator Ó Clochartaigh's amendment on board.

I bprionsabal aontaím leis an méid a bhí le rá ag an Seanadóir ó thaobh neamhspléachas an bhoird. It is a tricky one. One of the concerns I would like to impart with Senators Norris and Ó Clochartaigh is the perceived independence of the appointment process. Does the Bill, as currently drafted, offer a guarantee that the transparency, clarity and independence of the appointment mechanism to boards is as clean as a whistle? I would like to hear the Minister's view and believe she might need to examine this before Report Stage in terms of bringing forward an amendment to satisfy the need for independence. While I want to hear what the Minister has to say on that, let us assume there is a process that can guarantee transparency, the right expertise for the board and equality in terms of gender but also in terms of the listed experience and expertise. From having served on boards and as a CEO to boards, I know the balance of expertise is very important. My position differs slightly from that of Senators Norris and Ó Clochartaigh in that I believe there needs to be somebody who can assess the needs of a board. At present, that is a chairperson. However, as each four or five-year term evolves, boards of arts organisations and national organisations will have different and varying strategic interests, and these will change over time. For example, the National Concert Hall might make a board appointment of someone with experience in philanthropy or, indeed, someone who will give money. Who mediates this and who will decide on that expertise?

In the Bill, there is a sense that the chairperson is the one who is most suitably qualified, subject to the fact he or she has been appointed properly, with full transparency and a sense of fair play. My concern in teasing this out is that I think the chairperson is the most appropriate person to assess the necessary skills and to work with the Department, the Minister or the Public Appointments Service. Section 10(2)(b) states, "When making an appointment under paragraph (a) the Minister shall consult the chairperson of the Board in relation to the expertise that is required on the Board." That is the issue. If a board is appointed, somebody who might not have the same experience could win the election for chair because he or she is a better politician or better at attracting votes. However, he or she might not be the best person in terms of assessing the overall skills requirements and expertise that is required on a board.

The person appointed by the Minister might not be the right person either.

I accept that and it is why I am asking the Minister whether there is a process of appointment that can be seen as transparent and clean. I am not disagreeing with Senator Norris, in principle, but I ask how we can come up with a practical answer that allays our fears. On Report Stage, we might need to insert wording on the policy of the Public Appointments Service in this regard.

I welcome the Minister, Deputy Heather Humphreys, and apologise on behalf of my colleague, Senator Ó Murchú, who cannot be here to take Committee Stage.

I fully agree with the amendment that Senator Ó Clochartaigh and his colleagues have put forward in regard to the appointment of the chairperson. I am not insinuating for one moment that the Minister would interfere politically in any of the matters of the board in question. However, she is merely the Minister of the day and, as Senator Norris has pointed out, there could very well be a different Minister in her position in a couple of months.

It could be a Fianna Fáil Minister or a Sinn Féin Minister.

I have no doubt she will be moving on to a more senior position in any further Cabinet, so it could be a different person in whom we may not have the same type of confidence not to interfere.

The fact that individuals are on this board suggests to me they have the expertise to be members of the board. Therefore, I think it would be a vote of confidence in those people if they were to elect their own chairperson. I accept what Senator Mac Conghail has said in regard to expertise and liaison with the Minister and outlining the needs of the board. However, if the members of the board other than the person appointed by the Minister have not the expertise to be there, then they should not be there in the first instance. I think that answers the question. It is a very rational suggestion that the board members would select or elect their own chairperson. I do not think it should happen that the wrong person gets the position because the wrong person should not be on the board in the first place, so I believe Senator Mac Conghail's argument falls. I will be interested in hearing the Minister's response.

An issue has struck me and I do not mean this to be personal to the Minister. In terms of appointments to boards, we have the case of the appointment of the Fine Gael councillor in Donegal to a board for election purposes. That was under this Minister. It was a very blatant political stroke and everybody, including the Taoiseach, has now admitted that. I think we ought to be protected against that kind of thing happening. Even decent Ministers can stumble somewhat.

This recollection makes me much stronger in support of the amendment. Of course, it should be independent and not political. A Fine Gael candidate in a Seanad by-election was turfed in as chairman of the National Concert Hall because they had no experience except of changing tyres in a petrol station in Ramelton or somewhere.

While listening to Mozart.

Yes, and painting the Sistine Chapel. I do not approve of that happening at all. It is a very corrupt practice which should be done away with. I have referred to just one example from the recent past where the Department was cynically used by the Taoiseach to nominate a totally unsuitable person to a board of a national cultural institution in order to get them elected in a by-election to the Seanad. It stank and there is no guarantee that this will not happen in the case of the National Concert Hall. It is an absolute argument in favour of accepting the amendment.

I thank Senator Diarmuid Wilson for his wisdom as he has alerted me to a few thoughts I had not had. It is about transparency and rigour. I have no issue with a board electing a chairperson if every single one of the nine members is suitable and sufficiently qualified. Who, on behalf of the State and the taxpayer, assesses the necessary skills and expertise of the board? Who satisfies the National Concert Hall that they are doing the job they are meant to do?

Section 10(2)(c) states: "The Minister shall have regard to any guidelines prepared by the Minister for Public Expenditure and Reform in relation to appointments to boards of State bodies." Perhaps this is where an amendment might be brought forward to satisfy Senators' anxiety about the independence of the board. I think the Government has learned from recent appointments-----

It was caught red-handed.

I agree. I am not a mouthpiece for the Government, but a public appointments process has since been put in place. There is transparency, on which I would like to hear the Minister's views. There is the potential for some of the expertise required by the National Concert Hall to fall between stools if we do not have a satisfactory process of appointment.

Senators will be aware that section 10(3) provides that the Minister shall designate one member of the board to be chairperson. The effect of Sinn Féin's amendment would be to provide that the chairperson would be elected by the board members. The chairperson of any State board holds an important position of trust and competence as head of the board which has responsibility for managing the institution and directing operations. He or she forms a very important link between the board and the Minister. The chairperson is chosen by the Minister from the members of the board. The members of the board have been appointed and each of them will have gone through the PAS system which is now applied to all boards within my remit.

Senators can rest assured that the chairperson will have all of the necessary skills which will have been agreed with the previous chairperson and that he or she will have acquired all of the skills to come through the system in the first place. Part 3 of the legislation states: "The chairperson and ordinary members of the Board shall be appointed by the Minister, from among persons who, in the Minister’s opinion, have experience of, and expertise in matters connected to music, dance, the arts, finance, business, administration, marketing, fundraising, philanthropy, corporate governance, human resources or venue management." The PAS system requires a certain skill set for each national cultural institution and a lot of expertise in many areas before admission to the boards. The Minister will appoint the chairperson of the majority of State boards and the Public Appointments Service plays an important role in all board appointments. Under the new arrangements, all appointments to fill vacancies on State boards must be advertised on the State boards' websites. An independent panel assesses the applications received. We have recently received up to 90 applications from fantastic people. We have made two sets of appointments in the past while, the most recent being yesterday when two chairpersons appeared before the joint committee. The independent panel assesses all applications received and presents a shortlist to the Minister who makes the final decision.

The new transparent assessment process operated by the Public Appointments Service allows for applicants to indicate their interest in being appointed as chairperson and highlight the skills and experience they would bring to the position. They can tick a box to say they wish to be considered for the position of chairperson. This increases the information available to the Minister in making the decision. It is appropriate that the Minister of the day continue to appoint the chairperson of a public body such as the National Concert Hall because it is very important that the chairperson and the Minister have a good relationship. The chairperson is the key link with the Minister of the day. I, therefore, cannot accept the amendment.

The Minister may have noticed that, tempted as I may have been to do so, I did not get into the question of political appointments to boards and I will not do so at this stage because what she has said actually strengthens our argument. It is welcome that people will be appointed through the PAS system as it will depoliticise the process. However, the Minister of the day might not personally know the people appointed and might have never worked with them. Board members will appoint the chairperson, but most of the time they will spend together will be at board meetings where they will make decisions. The best way to decide who the best person is to run meetings effectively is to sit in at meetings with the candidates. We probably have all had experience of being on boards where we did not have a good chairperson and things did not move as quickly or efficiently as they should have, just as we will have had experience of boards with a very good chairperson who allowed everybody the space to make his or her points. The board members would be in a much better position to make this decision than the Minister. The Minister has appointed people who technically have the competence to be chairperson and have passed through the PAS system; therefore, they should all have reached the necessary level of expertise, not in every respect but enough to be on the board. This strengthens the argument in favour of accepting the amendment.

It is tricky to resolve this issue in any reasonable way. Senator Trevor Ó Clochartaigh has inadvertently put his finger on it. A group of people are drawn together through a process that is now public, which we all agree is an improvement on the way the system used to operate. The people concerned do not necessarily know each other and cannot decide to have six meetings before they decide who the chairperson is to be. As they do not know each other, they do not know who the best person is. If there is a vote by board members to select the chairperson, a person who puts himself or herself forward but does not get to fill the post might struggle to serve.

If the Minister, who is outside the group, talks to people and chooses carefully to make the appointment - hopefully, having assessed all those concerned - then everybody will be able to live with the decision.

As these are State boards their purpose is to serve the State. The Minister has a responsibility to ensure that the chair of the board is the person with whom he or she can have a relationship and with whom the work can be done. While it is less than perfect, and no system is ever perfect, allowing people to come through the Public Appointments System to be on the board and by the Minister choosing the chair it facilitates both the public process and the ministerial appointment aspect. This ensures the cohesion of the board and ensures that the collaborative process is not in any way undermined as the board proceeds with its work.

The Minister made reference to the fact that potential candidates for the board passed through an independent panel. Will she provide details on the members of that panel? She said that the chairperson must have the trust and confidence of the Minister. Does this mean the Minister does not have trust and confidence in the other members that have not been appointed chairman?

As Senator Trevor Ó Clochartaigh has said, the Minister's reply strengthens our argument that the chairperson should be elected by the entire membership of the board. If a Minister has a difficulty in working with the elected person after a period of time and if it affects the smooth operation of the board, then the Minister should outline his or her concerns about the chairperson and make those concerns known to the board.

Senator O'Keefe has made reference to people on a new board not knowing one another. I cannot remember how many members are on the board but while every single person might not know each other, it would be highly unusual in a restricted small circle such as the arts community that distinguished practitioners might not know of one another. It is a fantasy to suggest otherwise.

My meaning was to know of a person's capability to be a chairperson.

One could form a good judgment from a general knowledge of somebody, which is my own experience on a number of boards, and I have rarely been wrong.

I return to this without any kind of personal axe to grind but we could not have a clearer example of an inappropriate appointment made by this ministry. It is glaring. Other people may be a little timid and nervous about mentioning these things but I am not. I do it with no malice whatever. I have great respect and affection for the Minister but this is a matter of historical record. It has been done by this Minister and by this Government and we should take that very clearly into account. There is no point in saying, "We know the Minister and she would never do a thing like that," as one of my colleagues has indicated. Perhaps she would not do it now but she did in the past and that is a very clear warning to us all.

To be fair to the Minister, she was hung out to dry by the Taoiseach on that concern. She was only in office for a very short time.

Absolutely, but I do not want to play party politics. I am merely pointing out it is the way it happened-----

The Minister cannot say it, but that is what happened. The Taoiseach hung her out to dry when she was only a day or two in the job.

That is why I have every sympathy for the Minister.

I wish to be very clear that the PAS system is now in place, it is working very well, it is very transparent and it is operated across every appointment within my Department.

Senator O'Keeffe is correct when she observes that the members of the new board which comes together, all of whom will have come through the PAS system and hold the right skill sets and qualifications, do not necessarily know each other. None of them may know each other but the Minister will have the benefit of the curricula vitae of those people who are to sit on the board. It could be a new board coming together. I believe it is the Minister who is best placed to make the informed decision about who should serve as chairman.

Senator Diarmuid Wilson asked about the independent panel. The PAS sets up the independent panel. The panel consists of public servants and an outside chairperson. I do not know who sits on the panel but it is an independent panel with many applications to go through. I have appointed members to the board of the National Library of Ireland, the panel for which was chaired by Ms Bride Rosney. I have also appointed members to the board of IMMA. The appointments to both of those boards have been very well received and I know those concerned are doing a good job.

I am not convinced. I believe the debate has raised more questions than it has answered. I propose that the amendment, by leave of the House, is withdrawn. It may be reintroduced on Report Stage when we could look at the wording again.

Section 10 agreed to.

Amendment, by leave, withdrawn.
Sections 11 to 17, inclusive, agreed to.
SECTION 18

I move amendment No. 2:

In page 12, to delete lines 28 to 31.

I appreciate that we raised this on Second Stage and the Minister responded but this covers a situation where, under subsection (8), a chief executive officer may appear before the Committee of Public Accounts or when he or she makes reports on finances and so forth. This is very much a gagging clause on the CEO of the National Concert Hall. Section 18(9) states:

In the performance of the duties of chief executive officer under subsection (8), the chief executive officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

It is unnecessary and totally out of order that we should gag the CEO. For example, the Minister could be a fan of a particular type of music, say country music. He or she could make it a policy that the National Concert Hall should play more country music gigs. After some time it is found that this is not what the audience is looking for, the concert hall loses income and is in a position where it is losing a lot of money. If the CEO is then brought before the Committee of Public Accounts and asked to answer for the financial problems, is he or she allowed to say that money was lost because of Government policy? It is outrageous that the CEO could not express that opinion. We do not suggest that every person must agree with the opinion expressed or that the Minister must agree with it but one would imagine that if an opinion is expressed then an opposing view would be asked for.

It also could call into question the integrity and autonomy of the members of a committee in making up their minds based on the evidence that is put before them.

It is a bad idea to even give the impression of gagging a CEO. This clause is unnecessary. It should be quashed and removed from the Bill.

When we had a debate and took evidence during the pre-legislative scrutiny of the Bill, this gagging order is what most concerned me. I am the director of the Abbey Theatre and I hold many opinions although I acknowledge that the Abbey Theatre does not come under this legislation. I am also a Senator.

If the director of the Abbey had to make a statement on direct provision policy for instance, or if I programmed work around direct provision and critiqued the Government's treatment of asylum seekers in whatever artistic form, then one could view it as being highly critical of Government policy and the Government. The legislation is ambiguous so I welcome Senator Ó Clochartaigh introducing his amendment.

The legislation contains a gagging clause or what I would call a creeping censorial view and warns against expressing an opinion on the merits of any policy. In my view, that provision would lead to anxiety about what the CEO might be prevented from doing. Let us say that the Arts Council published an important document. I know the Minister has given her blessing to the arts education charter and the policies for music provision in schools, the teaching of music and how music should play an increased role in school curricula. What if the CEO of the National Concert Hall was critical, which is easily conceivable, of the lack of provision to teach music or lack of music teachers in the secondary or primary education systems? I would perceive such criticism as questioning or expressing an opinion on the merits of policy. It would behove the CEO of the National Concert Hall, which is a national institution, to be critical but not partisan. I do not mean for such a person to be critical of party politics when it comes to music education which is an elemental part of the remit of the National Concert Hall. Such a legislative provision leads to a creeping self-censorial attitude.

If I were the director of the National Concert Hall such a provision would worry me. I would deem it a self-gagging clause and it would leave me unable to participate in a public debate on issues that pertain to the National Concert Hall but it might also cut across the official policy of the Government. I do not suggest that the Minister has attempted such action. My claim is not about her or her personal or political views. A future Government could find a way if the CEO at that time expressed his or her view of the merits behind a particular policy. Such a CEO could feel exposed and could possibly be fired due to being deemed to have contravened section 18(9).

The provision seems to place an unnecessary restriction on the chief executive. An inability to express an opinion seems a bit Stalinist, particularly about a policy that one is expected to administer and supervise. First, one feels that the Government is going wrong but then one is gagged. That is the kind of thing that went on in the Department of Finance immediately prior to the financial crash. In that situation people were not listened to, people were gagged and people were silenced and I think it is wrong.

What happened to the promise of open government? Let us have a bit of open government instead of stipulating civil servants and CEOs cannot do something. What about the ordinary members of the board? Can the Minister confirm whether the ordinary members of the board are allowed to express their opinions? Would such a situation undermine a chief executive? What happens if he or she knows the policy is wrong and does not express a view? He or she can be subsequently castigated for not expressing his or her view while junior members of the board express their views. There is nothing in the legislation that says that they cannot express their views. I would have thought that the primary consideration for a chief executive officer would be to tell the truth and to warn people if something is going wrong. It is for that reason that I strongly support the amendment.

This section should be removed from the Bill because it completely contradicts what the arts are about, namely, being subversive. The arts have to critique the established view of the world and, if necessary, undermine same.

Within the past ten days I attended the Wexford Festival Opera. This year's production of "Hansel and Gretel" featured the children sitting in cardboard boxes. The programme notes helpfully added that this was to reflect the neoliberal economics in Europe where Ministers practised austerity policies and, therefore, the festival could not afford sets as normal for the production. I must say that the music performed was sublime. Those are the kinds of details that one does not need to get involved in but it happens all of the time.

At present there is a play about the condom train to Belfast. The sale of contraceptives was against Government policy at the time but we are allowed to celebrate the genius behind the train. There is a play on the series of concerts that were scheduled to be performed by Garth Brooks that were cancelled by the chief executive of Dublin City Council, which is something that is subversive in terms of Government policy. What were Yeats, Lady Gregory, Seán O'Casey and J. M. Synge doing except precisely critiquing Government policy at the time? Now we cherish their legacy.

The play "Sive" was rejected on the first occasion it was submitted to the Abbey, which was wrong, and the people of Ireland have proved that to be the case. We have such a record of censoring books, films, and so forth that censorship should not be extended. Colin Murphy writes all of the time about the disastrous people, as Senator Norris has said, who caused the financial collapse of this country. Does this mean that the musical on catastrophic bankruptcy by Colin Murphy shall not be performed in the National Concert Hall because it will undoubtedly contain critiques of people who were out of their depth in financial matters? If people want to sing about such matters or set them to music then that is fine by me. The legislation seems to be in the old Lord Chamberlain territory of censoring the arts. I can assure the Minister that we do not need to go there and believe the section should be removed.

The Royal Irish Academy organised a seminar on these issues and on that occasion Mr. Pat Cooke of the UCD school of art history and cultural policy said in terms of pursuing cultural goals, "The history of national institutions in Ireland reveals a fundamental ambivalence about whether they should be treated as functional arms of government or arm’s length bodies with independent boards." In terms of pursing cultural goals, they are not arms of the State. Ministers and senior civil servants should grow up and allow a free theatre and free musicals to develop which would be beneficial for the rest of society and for all of us.

This section is completely out of touch with the way younger people feel in this country at the moment. The arts must be creative and if that annoys some old fogeys then tough. Let us develop a creative society, one which we are always talking about doing in this country. Let us stop this kind of silly censorship. The chief executive officer is entitled to have whatever musicals he or she thinks will stimulate the cultural development of this country and, therefore, section 9 should go.

I am not in favour of section 18(9). Let us compare section 18(8) with section 18(9). Section 18(8) states that the chief executive officer shall be the accountable person when it comes to "the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann". What would happen if the CEO had to face questioning by the Committee of Public Accounts or the Oireachtas Joint Committee on the Environment, Culture and the Gaeltacht? If the CEO was asked direct questions by a Senator or Deputy about Government policy, particularly about his or her duties as CEO of the National Concert Hall, would he or she be allowed to respond? I would like the Minister to clarity the matter.

I support the Minister on this sensitive issue. Precedence has been set in other statutory bodies and I shall give the Irish Sports Council, which is now Sport Ireland, as an example. Section 18(9) states, "The chief executive officer shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy." In my opinion, the chief executive has been employed to run the business and to make the National Concert Hall commercially viable. I also believe the chief executive should remain neutral.

We do not know what his or her political persuasion might be and, if it were different to that of the Government and he or she did not necessarily agree with the policies laid down by it, there could be a misuse of the powers the chief executive has. I would like to support the Minister on this.

What we are looking at here is the installation of just a yes-man----

It would be somebody who could not criticise or make his or her opinions known or express an opinion. I do not notice any sanctions here. What happens if the CEO actually criticises Government policy? There is nothing here about a sanction, that the executive could be removed, fined, jailed or sent down the Liffey in a barrel full of spikes. There is nothing like that.

Or he or she could play country and western music.

Oh, how lovely. I do like country and western music.

It is referred to as "country" music, there is no western dimension.

Well there is where I listen to it.

The Senator should not say that in front of Senator Mooney.

Unless he is from Leitrim.

What sanctions are there, if any? Is it possible for a chief executive to express a contrary opinion and stay in office untroubled and untouched? Otherwise it seems to be very much what they call "groupthink". He or she is not allowed to express an opinion. It is not clear whether that means a negative, neutral or positive opinion. Suppose the CEO wants to express a very positive opinion about Government policy or to say he or she believes in a policy and is committed to it, but that there are questions about it, the answers to which are such-and-such. Would that not be a proper use of his or her function? I think it would.

I cannot see any reason not to allow the executive to be independent in the exercise of his or her function and to express an opinion. After all, it is only an opinion. It might well be a negative opinion and I would think that if there was an honourable chief executive who did not agree with a major area of Government policy he or she was expected to administer, the thing to do would be to resign publicly and say that the policy was wrong and he or she could not implement it in conscience.

Subsections (8) and (9) are useful provisions as they underline the director's accountability to the Oireachtas in the particular forum of the Committee of Public Accounts. In tandem with this accountability, there is an obligation on the director not to question or express an opinion on the merits of any policy of the Government or a Minister of the Government, or on the merits of the objectives of such a policy. This provision is limited and relates only to the appearance of the CEO before the Committee of Public Accounts on the issues outlined in subsection (8). They mainly relate to financial issues. This relates only to subsection (8). This provision is not unusual and has appeared in a number of recent pieces of legislation, such as the Irish Human Rights and Equality Commission Act 2014, the Competition and Consumer Protection Act 2014 and the Education and Training Boards Act 2013.

This is not gagging the CEO. Nor indeed is it undermining the CEO. A director can say what he or she wants, where he or she wants and when he or she wants, except in one place - at the Committee of Public Accounts. That is the only place the director is asked not to comment on policy. Section 27 requires the CEO to appear before other Oireachtas committees, where this restriction does not apply. The CEO can say what he or she wants in front of any other Oireachtas committee and there is no intention to subject him or her to a different standard from that to which other CEOs of State organisations are held. There is always a full and frank exchange of views between CEOs and directors of institutions and the Department. Such ongoing dialogue is certainly of benefit to the Department in the exercise of its functions. On that basis, I will not be accepting the amendment.

I welcome the clarification from the Minister. I read correctly from the beginning that it was related to section 8 and took that point on board in framing the amendment. I still stand by what I am saying. If we have the argument that in section 27 he or she is allowed to say whatever he or she likes to all the other Oireachtas committees, I cannot understand why we would then gag him or her at the Committee of Public Accounts, where he or she might need to relate an issue that was financial in nature. For example, if there was a directive from a Minister that touring would not be allowed and money was not to be spent on touring by any member of the National Concert Hall and they were not to go outside of Dublin, that would be reflected in the accounts. Somebody at the Committee of Public Accounts could ask why no money was spent outside of Dublin or on touring. Surely the CEO should be allowed have an opinion on that. He or she is going to have an opinion at any other committee he or she appears before. I do not think the argument stands up and cannot see the logic of allowing the executive to speak freely at other committees but not at the Committee of Public Accounts, so I will be pressing the amendment.

The Minister says she is not gagging the CEO, but she obviously is if she is preventing him or her from speaking. That is a gag. The Minister is wrong; the CEO is being gagged. I also think, more importantly, that the Committee of Public Accounts is being gagged. The Minister says the CEO can say whatever he or she likes to any other committee or to the media. What is then so special about the Committee of Public Accounts? I know it deals with money but this is taxpayers' money and the taxpayers are surely entitled to an understanding of the manner in which their money is spent or misspent. Given that every other committee can hear the wisdom of the CEO, I do not see any reason at all why he or she should be gagged in financial matters.

I would like to ask the Minister what is so special about the Committee of Public Accounts that it alone of all committees should be thus gagged. The Minister and Senator Coghlan have recited various other committees and so on where something similar happens. The fact that a provision is bad in one, two or three Bills does not make an argument for it being introduced in every case. These clauses have been challenged over many years. I challenged them, as did the former Senator, Joe O'Toole, when they were first introduced and never received an appropriate answer. It was just the strength of Government numbers, not the strength of Government argument, that got it through the Houses of the Oireachtas. I hope I will get an answer to the questions I have asked.

Before I was a Senator, I was called in front of the Committee of Public Accounts in my role as director of the Abbey Theatre. Ostensibly, I was invited to speak on the audited accounts and there was an issue around procurement, so we had to speak about that although we did not fully have a procurement policy in place at the time. The members of the Committee of Public Accounts asked me questions which I felt were beyond the immediate interest of the committee's agenda. I was happy to answer them; they were about programming, artistic stuff, touring. At what point should I have not answered questions which were not directly related to what is perhaps the Committee of Public Account's narrower remit, as opposed to that of the culture committee? There is ambiguity here for the CEO appearing before the Committee of Public Accounts about what he or she can and should answer. At the same time, the Committee of Public Accounts is entitled to ask any question it wants of the CEO of any organisation that is in front of it. There is muddying and a lack of clarity here.

If the Minister argued well with us and we understood the narrow remit of the Committee of Public Accounts regarding the types of questions the CEO could answer, then perhaps subsection 9 should have the words "under subsection (8) only". That would provide further clarification in line 28.

I agree with Senators Ó Clochartaigh and Norris that there is ambiguity regarding the performance of the CEO before various different Oireachtas committees. Therefore, regarding the engagement with members of the Committee of Public Accounts, quite rightly Senator Norris has highlighted that it puts a gagging order on the members of the Committee of Public Accounts that they are not allowed to ask questions on music provision of representatives of the National Concert Hall if the questions should only be related to accounts or National Concert Hall governance issues. There is too much scope for ambiguity in that section.

There are very limited categories of items in subsection (8) on which the CEO cannot comment on Government policy. So it is limited there. The CEO appears before the Committee of Public Accounts in his capacity as Accounting Officer only. As we know, the Committee of Public Accounts relates to financial accountability mainly. We have tried to provide in the legislation for artistic freedom while at the same time I have been clear that we must have accountability for how taxpayers' money is spent. I wanted to find that balance and I think we have found that in this legislation. I again thank the Oireachtas committee for its pre-legislative scrutiny.

Section 8 provides that the National Concert Hall will be independent in the exercise of its functions and there is no capacity for the Minister to interfere in any programming the National Concert Hall wants to put on. It can include country music if it so wishes.

The CEO appears before the Committee of Public Accounts for a particular reason, as clearly outlined in subsection (8). There is similar provision in other legislation.

The Minister, coming from Monaghan, will know there are no cowboys in Monaghan.

It is Stetsons not stilettos so.

Is the amendment being pressed? I believe we have exhausted this particular debate.

I am not sure we have.

We are covering new areas all the time. I ought not to be repetitive. The Minister did not really give an answer as to what is so special about the Committee of Public Accounts.

Okay, the Minister says she did, so I will re-read the transcript. I was not satisfied that this was the case. Basically, it is increasingly emerging from this debate that what is at issue is making the Government uncomfortable and the expression of a contrary opinion on policy by the CEO might make the Government uncomfortable. I think that is a damn good thing. Governments should be made uncomfortable on a regular basis. It is part of the whole process of accountability.

The section refers to "the regularity and propriety of the transactions recorded or required to be recorded in any book". Do they just say, "Oh, yes, that's wonderful", and maintain themselves in what has been described as neutral mode even though they know there is something absolutely stinking there as a result of Government policy? Surely they should be allowed to warn.

The section also refers to "the economy and efficiency of the Board in the use of its resources". What would happen if, as a direct result of a Government policy, inefficiencies are created? The CEO is not permitted to answer on that. The section also refers to "the systems, procedures and practices employed by the NCH for the purposes of evaluating the effectiveness of its operations". If something in Government policy inhibits this, again they are not able to say.

So their testimony to the Committee of Public Accounts is thereby rendered virtually useless. It is of no help in teasing out issues. If something is wrong, instead of covering it up in order to render the Government more comfortable than it would be if the situation was open, they should actually expose the situation so it can be amended. I feel quite strongly that there is no reason the chief executive should not question or express an opinion on the merits of any policy of the Government or the merits of the objectives of such a policy. I think it is critical that they be given the freedom to do so.

I presume that if there is a fundamental disagreement on policy, CEOs, if they are an honourable people, would remove themselves because they are not in a position to continue to fulfil a policy with which they disagree. This happened to me as a member of a board. A policy I proposed was opposed by one other member who engaged in very devious stratagems in order to discomfort me and ensure the policy sank. She was successful and I immediately resigned because I said, "A fundamental policy of mine, as CEO, has been destroyed. Therefore I have lost the confidence. Therefore I go." That is how things operate, not by restricting freedom of speech through legislative means.

Amendment put and declared lost.

Question, "That section 18 stand part of the Bill", put and declared carried.
Sections 19 to 22, inclusive, agreed to.
SECTION 23
Question proposed: "That section 23 stand part of the Bill."

I recognise that this section is part of the statutory way in which these things are done. There is no point in reminding me that it is included in a number of Bills; I have opposed it in most of them. The former Senator, Mr. Joe O'Toole, and I opposed it very strongly.

It deals with removing any possibility of any Member of the Senate, the European Parliament or the Dáil being eligible for a position on the board of the National Concert Hall. On the previous day the question of conflict of interest was raised. What utter, complete and total rubbish. People are elected to this House to represent interests. If we had somebody from the board of the National Concert Hall who was involved here, would it not be wonderful to hear what he or she had to say on issues regarding the concert hall? I do not see a conflict of interest. I see an interest, yes, but I do not see a conflict.

We are public representatives, messengers from the public. Among the messages we carry are messages from our particular professional expertise. It may come as news to the Government, but this Senate was allegedly established originally to give voice to cultural institutions. So we are giving voice to cultural institutions and simultaneously they cannot be on the board. To me this is utter and complete nonsense. There is a very strong argument for saying that people from the Senate might make very good board members. The argument is even stronger for Members of the Senate than it is for Members of the Dáil because of the nature of how people are elected. It seems ridiculous to exclude somebody.

Senator Mac Conghail is a very valued Member of this House who speaks with authority on the theatre. Would the Minister ban him? Why is he allowed in here?

He should be put out with the cat. Senator Marie-Louise O'Donnell was twice a member of the board of the National Concert Hall. Is she now less qualified to be a member of the board simply because she is a Senator? One should bear in mind that the people concerned do not receive remuneration. Nobody can say it is jobs for the girls or the boys because they are piling up money, that it is a disgrace and that it is all an inside job. That is nonsense. It is important to have the voices of those who are at the coalface in the arts represented in Seanad Éireann and also on such boards because the provision operates in two ways; it means that if one is on the board, one cannot be a Member of Seanad Éireann. I wonder if that is constitutional; that simply because of one's position on the board one cannot be a Member of the Seanad. I do not think that is right. Section 23(1)(a) reads:

Where a member of the Board, or a committee, a member of a board of a subsidiary, a member of staff of the NCH (including the chief executive officer) or a subsidiary is—

(a) nominated as a member of Seanad Éireann...

What does that mean? Let me ask myself and inquire within. Does it mean that he or she is one of the Taoiseach's nominees? Senator Coghlan is nodding vigorously. Then it is grammatically incorrect because it should read "nominated to Seanad Éireann". I am nominated as a Member; I am nominated at every election. I have to find a nominator, a seconder and eight other Senators to be nominated. This means that from the very moment of my nomination, whether I am successful, and in the intervening period, between the nomination and the election, I am not available to the National Concert Hall, which is complete nonsense. Because of the way it is phrased the Minister is ruling out candidates. It is technically wrong, as well everything else. I maintain that the board of the National Concert Hall would be enriched by allowing Members of Seanad Éireann to be on it. It may well be that no Member of Seanad Éireann will take up such a responsibility, but it most definitely should be open to Members of the Seanad to do so.

Not for the first time, I find myself in almost total agreement with Senator David Norris. It seems ridiculous that if a Member of this or the Lower House is qualified to sit on the board, that he or she is prevented from doing so. The one stipulation I would make is that Members of the Oireachtas who are board members should not receive expenses because they are paid as Members of this or the Lower House. However, I compliment the Minister on not excluding members of local authorities from board membership. That was the practice in all legislation brought before this House for many years. I note that bankrupts are not exempt either, as is the case in some legislation brought before this House such as that relating to the Irish Sports Council.

Did the Senator mean to use the word "excluded"?

They are not excluded and should not be because it is unconstitutional to exclude them from board membership. I urge the Minister to reconsider her decision to exclude eminently qualified Members of this or the Lower House from board membership of the National Concert Hall.

The effect of Senator David Norris’s stance would be to delete the section in its entirety, although this is a standard provision used in many pieces of legislation. It is considered that being a Member of Dáil Éireann or Seanad Éireann and a member of a board of a State authority could give rise to potential conflicts of interest, for example, when it comes to funding and policy. It would be prudent and advisable, therefore, to retain the section. For example, someone could find himself or herself voting on the budget which would include the budget for the National Concert Hall. That in itself would be a direct conflict of interest. It is important that at national level politicians not be conflicted by serving at other levels of government or on State boards. I do not see any demand from the public to change this.

I wish to clarify the reference to “nominated as a member of Seanad Éireann”. What is meant is that one must be a Member of the Seanad, not nominated to be elected as a Member. One must be successful in being elected to Seanad Éireann before the measure will apply. I do not accept the proposal to delete the section.

First, let me correct the record of the House. In reference to section 11 my understanding is that somebody will cease to be a member of the board if he or she is adjudicated to be bankrupt. Although Senator Diarmuid Wilson said he was pleased to see that bankrupts could be on the board, he is completely incorrect. They cannot be members of the board. That is a grey area. I do not see why they should not, depending on the circumstances of the bankruptcy, but in my Second Stage speech I referred to the next sentence in subsection (3)(b), which reads that a person shall be excluded from membership of the board if he or she “makes a composition or arrangement with creditors”. Harry Crosbie is someone for whom I have the greatest of respect. He is responsible for the Grand Canal Theatre and has created something vital in the artistic life of this city. He has made a composition with his creditors. It is absolute lunacy that he would not be allowed to be a member of the board and I said so at the time. I do not see any reason to include such a provision. Unfortunately, my good friend Senator Diarmuid Wilson is wrong, bankrupts are not allowed to be members of the board. Those who make arrangements with creditors are not allowed to be on it. That is ridiculous, in particular in the case of members of the artistic community where people take a gamble on a production. A Broadway show could go down the drain just like that; everyone is expecting it to make millions, but it just bombs.

The Minister has parroted the phrase that the measure is included in other legislation. That does not make it good legislation and does not render it immune to examination or scrutiny in this House. She also instanced the issue of funding. Why should someone who is involved at the coalface in the theatre or the National Concert Hall not come into this House and express a clear, cogent and factual position? We are entitled to know. Again, that is gagging. Members of this House are entitled to receive full information. I simply do not understand this. It is not as if the individual Member was grubbing around in his or her wallet and going to put in a counter bid for something. That would be a conflict of interest, but this is not. This is a convergence of interests where the fact that a person is a Member of the Seanad and a board member puts them in a position where he or she can give a particularly illuminating answer to questions raised in this House. The Minister can push the Bill through and use the force of numbers to win the vote, but if she wins it, she will not win the argument because there is absolutely no reason to include this provision. That it is tradition is not an argument. It is not a good idea, regardless of the fact that it has been included so many times in legislation and the Ministers responsible have got away with it. It is not a good idea if it is bad legislation. I am convinced that this is bad legislation and it is also insulting to the House.

Senator Diarmuid Wilson referred to members of county councils. I remember when they were forbidden from holding such board memberships. Why are they allowed to do so now? Hello - may we have an answer to that question?

Because county councillors do not vote on budgets here.

Therefore, the Minister is afraid of one vote in Seanad Éireann with the Government's whipped majority.

The Senator misunderstands the provision.

Why should we not have access to the truth, to informed opinion? This is very, very backward. It is a calculated insult to this House that members of county councils can be members of the board but Members of the national Parliament, Members of the Upper House, cannot be on the board of a cultural institution that is basically a voluntary occupation. It is absolutely ridiculous.

I reiterate that I compliment the Minister for not preventing county councillors and members of local authorities from being members of the board.

I reiterate that eminently qualified Members of this House and the Lower House should be eligible to sit on the board.

Under section 10 of the Bill there is nothing to prevent someone who has been declared bankrupt from becoming a member of the board. However, section 11 states that if one is a member of the board and one becomes bankrupt then one must resign from the board. Could the Minister clarify that point? I beg to differ with Senator Norris. I was correct in my first comments on the membership of the board. Bankrupts are not prevented, nor should they be, from being considered for membership of the board. However, if someone is a member of the board and becomes bankrupt, he or she has to resign from the board.

That is nonsense.

We need some clarification.

Section 11(3) sets out a series of issues which disqualify board members, including bankruptcy and making an arrangement with creditors. This is a reasonable requirement for board members, particularly given that the NCH operates in a quasi-commercial arena. It would be prudent to continue with that provision. It only applies if someone is a member of the board and becomes bankrupt.

Going back to the issue regarding Members of the Dáil and Seanad, I have taken the view that national politicians operating on the national stage should not be linked to a board. The Senator mentioned local authority members. Local authority members are not in this Chamber or the Dáil voting on budgets that affect our national cultural institutions. For that reason, I am concerned that there may be a conflict of interest, regardless of whether one sits on the Opposition benches or the Government benches.

It is a convergence of interest which is very helpful.

It does not matter which bench one sits on, the point is there could be conflict of interest. For that reason it is prudent and advisable to retain this section.

Question put:
The Committee divided: Tá, 24; Níl, 14.

  • Bacik, Ivana.
  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Eamonn.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Kelly, John.
  • Landy, Denis.
  • Mac Conghail, Fiach.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Naughton, Hildegarde.
  • Noone, Catherine.
  • O'Neill, Pat.
  • Sheahan, Tom.
  • van Turnhout, Jillian.
  • Whelan, John.

Níl

  • Barrett, Sean D.
  • Crown, John.
  • Cullinane, David.
  • Daly, Mark.
  • Healy Eames, Fidelma.
  • Heffernan, James.
  • Leyden, Terry.
  • Mooney, Paschal.
  • Mullen, Rónán.
  • Norris, David.
  • O'Donovan, Denis.
  • Ó Domhnaill, Brian.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators David Norris and Diarmuid Wilson.
Question declared carried.
Progress reported; Committee to sit again.