Online Safety and Media Regulation Bill 2022: Committee Stage (Resumed)
SECTION 7
Debate resumed on amendment No. 29:
In page 20, after line 40, to insert the following:
"(iiia) the protection of workers’ rights;".
(Senator Niall Ó Donnghaile)
This amends section 7(5)(d) of the Broadcasting Act as amended by the Bill. It provides that the commission may undertake strategic reviews of the sectors regulated by the commission in respect of the protection of workers' rights. I cannot accept the amendment for the following reasons: in the first instance, policy regarding employment rights is primarily the responsibility of my colleague, the Tánaiste and Minister for Enterprise, Trade and Employment, and is more appropriately dealt with in employment legislation. The amendment is also straying into matters that may be more appropriate to the functions of the Workplace Relations Commission, WRC. In particular, section 11(1) of the Workplace Relations Act 2015 provides the WRC shall conduct reviews and monitor developments as respects workplace relations. I would be wary of any provision that might have the effect of duplicating the work of the commission. I understand the intention of the amendment. The protection of workers' rights is an important consideration in all sectors, including the sectors regulated by the Bill.
I acknowledge the concerns raised by the Senator regarding working conditions in the technology sector. Last May, the Oireachtas Joint Committee on Enterprise, Trade and Employment heard evidence from trade union experts and content moderators regarding their working conditions. The evidence pointed to issues regarding the pay and conditions of content moderators and some of the dangers inherent in the practice of hiring employees through outsourcing firms. In particular, one of the witnesses, a former content moderator, set out the very difficult nature of the work involved and the types of distressing content she was required to view as part of the role. The Tánaiste also addressed the committee and stressed the duty of care that employers have towards employees to create a safe working environment. The Tánaiste also indicated to the Chair of the committee that he had written to a particular technology company about the terms and conditions of content moderators and indicated it would be on the agenda when he spoke to the company again.
It is important to stress the protection of workers' rights is not a core function of the Department or its agencies. It is important that our employment rights framework, which is the responsibility of the Department of Enterprise, Trade and Employment, places consistent rules and obligations on employers in all sectors of the economy. Moving responsibility for workers' rights to sectoral regulators would dilute the enforcement of the overarching framework and potentially lead to an inconsistent approach between sectors. In this regard, the role of an coimisiún as an independent regulatory body is ultimately to enforce new and updated regulatory frameworks for content regulation across broadcasting, video on demand and designated online services. It is not intended to regulate employment relations or to assess working conditions. As a general principle in considering any amendment that might expand the functions of an coimisiún, I am conscious of not unduly expanding its scope to other areas of policy with the effect that its core functions might suffer or that it might duplicate the functions of other bodies in the State.
I apologise to the Minister for missing her contribution on this. The amendment is clear in what it is trying to do. It is accepted in the Bill that repeated viewing of harmful content carries a risk of harm or being desensitised and of normalising harmful content. This risk is particularly relevant when it concerns staff who service providers and big tech. They are relied on to review content to support moderation and adherence to online safety codes. Concern was expressed by witnesses during pre-legislative scrutiny for these staff and their ability to fulfil their duties. We have all seen the stories in the press of the working conditions faced by content moderators and the toll this work take on human beings. There are developed best practice guidelines for staff of online platforms based on supports required and good work practices that should be utilised. We want to see workers' rights included in the remit of coimisiún na meán and its work. We want to ensure social media companies play their role and, therefore, we want to include workers' protections and rights in all online safety code considerations. This is the rationale for the amendment as we see it.
I have addressed these issues. I have said I cannot accept the amendment because I believe the policy regarding employment rights is primarily the responsibility of my colleague, the Tánaiste and Minister for Enterprise, Trade and Employment. I also stated I believe the amendment is straying into matters that may be more appropriate to the functions of the WRC. I would be wary of any provision that might have the effect of duplicating its work. The idea of moving responsibility for workers' rights to sectoral regulators would dilute the enforcement of the overarching framework and lead to an inconsistent approach between sectors. I will not accept the amendment today.
I take on board what the Minister said. I hope that before we reach Report Stage we will be able to engage on this issue and see whether there is work we can do collaboratively to deal with some of the issues raised. I am conscious of what she has outlined with regard to the remit. Perhaps there is work we can do in advance of Report Stage. On this basis I will withdraw the amendment and reserve the right to resubmit it on Report Stage.
It is not my intention to come back to this on Report Stage because of the reasons I have outlined. Perhaps I said "today" but I will not be accepting the amendment.
Based on what the Minister has now said I will press the amendment.
Amendment put and declared lost.
I move amendment No. 30:
In page 20, after line 40, to insert the following:
"(iiia) broadcasting in the Irish language;".
Amendment put and declared lost.
Amendments Nos. 31, 96, 104, 105 and 107 are related. Amendment No. 105 is a physical alternative to amendment No. 104. Amendments Nos. 31, 96, 104, 105 and 107 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 31:
In page 21, between lines 2 and 3, to insert the following:
"(e) publish revised 'Rule 27' guidelines which confirm that a broadcaster should give due weight to past electoral performance, and other relevant matters, in determining election coverage including the offer of Party Political Broadcasts and that a broadcaster may review such criteria taking account of the prevailing political landscape within the context of their obligations under the Acts and Codes.".
What I want to say on the amendment is succinct. It is one of several amendments tabled on foot of concerns from RTÉ that the new wording could have unintended consequences in respect of key aspects of its coverage of Ard-Fheiseanna and party political broadcasts.
I will speak to amendment No. 96, which reflects some concerns. It is slightly different from the other amendments, which speak to a determination of time for party political broadcasts. This speaks to the allocation of time for political programmes by public sector broadcasters. Some programmes are particularly balanced and have a Government and an Opposition representative. As the Minister will be aware, on an increasing number of programmes on RTÉ a Government representative has to face up to three Opposition representatives. The amendment calls for greater regard to be had to the levels of political representation of the respective political parties. As an example, I will take the previous 12 broadcasts of "The Week in Politics" that have run since 5 December.
In those broadcasts, there have been 12 representatives from Sinn Féin, five from Fianna Fáil, five from Fine Gael, two from the Green Party, four from the Labour Party, four from the Social Democrats, two from Aontú, which has one representative in these Houses, and two from People Before Profit. Three Independents have all appeared twice, and there have been two other Independents. The proposal behind this amendment is that there is a requirement on the broadcaster to have regard to the size of political parties. There are, as we know, differences between the political parties in government on certain issues, and it is important that different political parties get the opportunity to express those differences. It is a matter of ensuring that in making decisions on the make-up of panels on programmes, there is an appropriate balance that has regard to the size of the political parties. There is a view among the Government parties that it is completely unfair if panels regularly comprise just one Government representative who must face up to three Opposition representatives. It is often the case that a Government representative is asked to account for differences between the political parties in government and to state whether it represents a crisis, yet differences between various Opposition parties are not pointed out. Amendment No. 96 simply requires that regard be had to the size of political parties or groupings within the Oireachtas, or to their performance in the previous election, when decisions are being made regarding the composition of panels.
It should be said that many programmes are very balanced, with one Government representative and one Opposition representative. However, it is often the case that more representation is given to people who deny climate change, for instance, than political parties who argue in favour of accepting there is climate change. It is important, therefore, that we get the balance right.
Although I sympathise with certain elements because I regret that we have such an adversarial frame in our debates, often with very strong privileging of heat over light in political programming, in respect of which balance is important, I am concerned about the amendment. I do not know whether the weighting of political parties will be the way we move towards more balanced and nuanced coverage of political issues. It seems that we could just move into a permanent election dynamic. We see this sometimes in the Dáil. Political programmes are not simply about seeking support but also about perspectives. Someone like me, who is almost never on the television, can bring something to a debate. I do not feature very much in the media but, along with my colleague, I have 150 amendments, which indicates a lot of thought and perspective on this Bill alone. If we go simply by weighting, we almost lose the voices of each person. I have great respect for every parliamentarian and recognise the individual perspectives and ideas people are bringing; however, if a contribution simply becomes a symbolic proxy piece, it is really worrying. I am really worried about that direction. One needs to look to situations and recognise the diversity within a Government, whether it has three partners or otherwise. There is thinking to be done in this regard but weighting by party could mean those with really important things to say on issues do not get heard. It may happen that there are two or three voices. Two members of the same party might be the key debaters who need to be heard on an issue. It would be a pity if that got lost. I would be concerned if it were a matter of holding the space.
My next comment is not directed at the proposer of the amendment or the Minister but I am aware of a party in government whose leader was specifically reported as having been given an edict to ensure not as much platform space would be given to Opposition voices and other perspectives. That is a concern. Sometimes I worry – again, this is not directed at those present – about some of the rulings of the Cathaoirleach on space given and time. That is to be debated. We fight for parliamentary space all the time because the Government can win every vote. It has a crushing majority, but it is really important that we can at least get our voices heard, air our ideas and try to persuade people. In that sense, I have a concern although I understand the frustration. I share it myself in many ways when I consider the way political programming is framed in Ireland. This week has been a sterling example of one that entails a not-very-constructive debate quite specifically focused on heat rather than light.
I thank the Senators for proposing these important amendments. The coverage by broadcasters of our democratic process, particularly during electoral periods, can have a profound impact on the outcome of the process. That is why broadcasting legislation has for many years sought to ensure fairness, objectivity and impartiality in both news coverage and the coverage of elections. This Bill will extend those provisions to the video-on-demand services, reflecting the changing way in which citizens access new media.
As regards amendment No. 104, the party-political broadcast has played an important role in the democratic process by allowing political parties uncontested airtime to carry their message to the public. For that reason, these broadcasts have been exempted from the general prohibition against the broadcasting or making available of advertisements directed towards a political end. It is the intention of the Bill to continue this exemption in respect of party-political broadcasts. However, I acknowledge that the use of the term “party political programmes” in section 9 of the Bill – inserting section 46M(4) into the Broadcasting Act 2009 – rather than “party political broadcasts” may give rise to some interpretive confusion if it is not clarified. The term “party political programmes” was used in lieu of “party political broadcasts” to ensure the section covered both broadcasting services and video-on-demand services that would not be considered to make broadcasts. I have asked my officials to examine this issue with a view to returning to this House on Report Stage. I cannot promise Senators that I will introduce an amendment on Report Stage but I will certainly seek to set out any plans I have to address this issue. Accordingly, I cannot accept amendment No. 104 at this time but acknowledge the matter needs to be scrutinised closely.
Amendments Nos. 31 and 96 also address an issue that goes to the heart of our democratic process, namely, the coverage by broadcasters of political parties and the methodology for determining the allocation of that coverage. Given that the allocation of coverage may play a role in determining the outcome of an election, I acknowledge that this is a contentious and controversial issue. As amendment No. 31 recognises, the BAI, under section 42 of the Broadcasting Act 2009, has issued a code of fairness, objectivity and impartiality in news and current affairs – rule 27 – which deals with the coverage of elections by broadcasters. Under the Bill, this code will continue in force upon the dissolution of the BAI and the establishment of the coimisiún until such time as it is replaced by a media service code, which will apply not only to broadcasters but also to certain video-on-demand services. At present, rule 27 places responsibility on broadcasters to develop mechanisms to fairly allocate coverage during elections rather than being prescriptive. This is in contrast with the current situation in Britain, where Ofcom, as the audiovisual service regulator, issues prescriptive rules to broadcasters.
We have seen a transformation in the political landscape in this country over the past 12 years. I recognise that this is posing a challenge for broadcasters, particularly RTÉ in its role as our largest public service broadcaster, especially regarding the allocation of coverage during elections. Given the complexity of this issue and the difficulty in arriving at a consensus, it is preferable that any common set of requirements for broadcasters in respect of party-political broadcasts or the editorial coverage of elections and referendums be made by the coimisiún through media-service codes rather than through prescription by legislation, as suggested in amendment No. 31, which covers the election period, and amendment No. 96, which focuses on coverage across the board. On that basis, I have asked my officials to further scrutinise the provisions of section 9 of the Bill, with which we insert subsections 46L(1) to (3) and the relevant measure in 46N into the Broadcasting Act to ensure that nothing in the text of the Bill would prevent the coimisiún from setting such a common set of requirements through the media service codes.
I intend to request that an coimisiún review the code of fairness, objectivity and impartiality governing news and current affairs with a view to addressing the issue of fairly allocating coverage of political parties in broadcasts and video-on-demand services, particularly during elections. In doing so, I emphasise that under this legislation an coimisiún will make any decisions concerning such codes independently of the Oireachtas and myself as Minister. Similar to the situation with amendment No. 31, although I cannot accept these amendments, I will return to the House on Report Stage to allow us to discuss this matter further.
I wish to speak amendment No. 107 in my name. I missed the fact that it is included in this grouping. I have some queries in this regard because the definition made it in without the other definitions that qualify it because they were seen as creating a cost to the State. Yet this amendment allows for the definition of "political purposes". I intend to withdraw this amendment because it does not make sense without changing political ends to political means. I will come back on Report Stage when I figure out how this amendment can work without the others. This amendment was concerned with the definition of "political purposes" in the context of the legislation referring to political ends. I mentioned this point earlier on Committee Stage in respect of discussing political purposes and I think that will suffice to allow me to resubmit an amendment later.
This group of amendments relates to the key endeavour we are undertaking. It is constructive and part of recognising that debates on issues extend beyond political and electoral debate. That was the context for and what we were trying to do with our amendment. We will move it and bring it back on Report Stage. The Minister said that she will engage with the Minister of State, Deputy Noonan, on this aspect and that we could examine the issue. To clarify, in my intervention I was speaking about concerns regarding amendment No. 96. I may also have some worries about the wording of amendment No. 31. On the core principle, however, I wish to be very clear. It is appropriate that there are clear rules for election periods. We can tease out and debate exactly what those should be, but it is important that there are proper rules, weightings and allocations of space in the context of elections and referendums. This is part of the democratic process.
That aspect, though, is different from the wider debate. This point has come up and it is one of the reasons our amendment is useful in both contexts. It is clear in specifying political purposes relating to electoral activities and particular outcomes in that part of politics, as opposed to the discussion of policy. Our amendment is important for that reason. We will be able to discuss the matter again, but I wish to indicate now that my primary concern in this regard relates to such a definition of "political purposes" leaking into the general policy discussion space and not applying to the strict regulation of election periods. We need that stricture, and something similar might be needed, regarding spending in online spaces during election periods.
I agree with many of the points made by Senator Higgins. Regarding the Minister’s response, this is at the heart of our democracy. I refer to ensuring that all sides of a political argument get aired. It is important that discussion is based on evidence. As the Minister rightly stated, however, the political landscape has changed enormously, and it is important that a broad range of views is well reflected. Senator Higgins should be on television and radio more often. She is well able to articulate her point of view. From the perspective of the Government parties, however, she will understand that it is often felt that the differences of opinions within Government parties are not always aired on substantive policy issues, barring the heat and light debate we had this week. It is usually presented in a sensationalist kind of way. Therefore, this is an important debate.
I appreciate the challenges broadcasters face, one of which relates to the McKenna judgment. This requires, particularly during referendum campaigns, that equal weight be given to the two sides of an argument. I have a bit of a problem with that. I have no difficulty with situations where equal weight is given to evidence-based arguments on two sides. If, however, we have a referendum in the future on tough measures to deal with climate change, for example, I do not believe it would be appropriate that our national broadcaster should be giving 50% of the space in such debates to climate sceptics, although it is appropriate that we would have a meaningful debate around our approach to addressing some of these issues. A similar situation pertains to issues such as the Good Friday Agreement, where there was overwhelming support among all the political parties. Yet, equal space had to be given to fringe dissident groups. In that light, we may need to revisit the McKenna judgment.
This is an extremely important debate and we must have it. I accept that it is much wider in nature and concerned with more than just the legislation before us. I agree with Senator Higgins regarding the importance of there being clear rules, especially during election periods. As we know, however, the political narrative can be very much shaped outside election periods as well. If voices are not being heard, that is a concern. Some of this endeavour relates to different voices being heard. Equally, there is also concern regarding situations where those who represent larger political parties often do not have the opportunity for their voices to be heard.
In light of this reflection, I will be happy to withdraw amendment No. 96 when we come to it. This is about more than the legislation. Part of the challenge we face, and this goes back to our earlier discussion about allowing political advertising on radio and television, is that while we can regulate what is going on within those controlled broadcasting spaces to a certain extent, our bigger challenge concerns what is happening in the online space. I refer to how we can ensure there is fair and balanced debate in that broader space. Certainly, some of what we will see emanating from the electoral commission legislation will be important. It will be key for this regulator to work closely with the electoral commission. I am deeply concerned, however, that if we do not manage to ensure we have evidence-based policy discussion, and ensure that there is fairness and balance in such debate and that reasonable voices are heard, our politics will descend into what is being driven by online polarisation and by some of what we have seen happen in the United States and other democracies. This is a broader debate than what we are discussing involving this legislation. I am, however, heartened by the Minister’s comments. In reflecting before Report Stage, it would be good if some of what was mentioned can be integrated into this legislation. I think the Minister understands the concerns being expressed here.
I apologise for being late. I will be brief. Amendment No. 105 is similar to amendment No. 104, but it contains additional definitions of what constitutes a party-political programme or broadcast. We understand that this is not currently provided for in the legislation and does not appear anywhere else. It is important that this definition be included and that it is defined as meaning “uncontested time [...] provided to a political party and the broadcaster (or relevant media service provider, as the case may be) does not exercise editorial control over the content". It is important as well that this would also apply to online broadcasting and traditional forms of broadcasting.
On those two amendments just mentioned, and starting with Senator Ruane's amendment No. 107, it is similar to amendment No. 2, so I am happy to come back to that on Report Stage. I reject it today, but I am happy to come back to it on Report Stage. Regarding Senator Sherlock’s amendment No. 105, it is similar to what amendment No. 104 is seeking to do in a slightly different approach. I reject the amendment today, but we will come back to it on Report Stage.
Is the Senator pressing the amendment?
Based on what the Minister said, I will withdraw and reserve the right to resubmit.
Amendment, by leave, withdrawn.
Amendments Nos. 32 and 33 are related and may be discussed together by agreement.
I move amendment No. 32:
In page 22, between lines 4 and 5, to insert the following:
“(1A) Not less than 3 members of the Commission shall be women.”.
Both amendments are pretty similar and seek to ensure gender parity among the membership of the commission. The Bill, as authored, makes few provisions relating to the membership of the proposed media commission. This amendment seeks to ensure greater gender equality on the commission. A precedent for an amendment of this nature exists in the legislation establishing the Irish Human Rights and Equality Commission, IHREC, and the amendment would ensure a minimum representation for both men and women. The amendments submitted by me and Senator Higgins are similar in their intent. Amendment No. 33 seeks to ensure that not less than two of the members shall be women, including the chairperson, but in the case where there are six whole-time members in addition to the chairperson not less than three of those members shall be women. It is pretty straightforward; I do not think I need to elaborate too much on it.
I recognise that amendments Nos. 32 and 33 aim to achieve gender equality within the commission and I thank the Senators for those amendments. One of my key goals since becoming a member of Government has been to further gender equality within every sector under my remit. I am absolutely committed to empowering women and using my position to help raise women's voices and drive greater gender equality. Of particular relevance to these benefits have been my actions to ensure gender equality in the appointment to the State boards of bodies under the aegis of my Department. Senators will appreciate that I understand the objectives that the amendments seek to achieve.
However, there is a difference between ensuring a gender balance in sports bodies where typically a number of board positions are filled at the same time as opposed to advertising individual commissioner posts for full-time employment where the provisions of employment law apply. There would be some risks there. Before considering the amendments further, I wish to seek legal advice as to the compatibility of the proposed amendments with the Employment Equality Acts, 1998 and 2015, particularly the provisions of the Acts that prohibit the treatment of people less favourably if one is a woman and one is a man. I do not want to insert anything in the Bill that would be contrary to employment law and, therefore, I would like to get legal advice. While I do not accept these amendments, I hope to return to this issue on Report Stage following that consultation.
Amendment, by leave, withdrawn.
I move amendment No. 33:
In page 22, between lines 6 and 7, to insert the following:
“(2A) Of the members of the Commission, including the chairperson, not less than 2 of them shall be women, and in a case where there are 6 whole-time members, in addition to the chairperson, not less than 3 of them shall be women.”.
Amendment, by leave, withdrawn.
Amendment No. 34 is out of order.
Amendment No. 34 not moved.
Amendments Nos. 35, 36 and 41 are related and may be discussed together by agreement.
I move amendment No. 35:
In page 22, between lines 6 and 7, to insert the following:
“(2A) One member of the Commission, who shall not be the chairperson, shall be known as an Online Safety Commissioner.”.
We discussed this earlier. This relates to the core premise, the online safety commissioner. When articles appear in newspapers, they only cover five sentences from this Bill. The only thing they refer to is an online safety commissioner. That is one of the key expectations, hopes and promises that has been made in respect of this legislation. As we discussed the last day, the concern is that there is no actual provision for an online safety commissioner. That role is central to this legislation and to the meaning of this legislation. For those of us unhappy with other aspects of the legislation in weighing up our support for it, it is really crucial that the online safety commissioner is contained in the Bill before it goes on to the Dáil because otherwise we would all be very aware that we were sending on a Bill with an acknowledged gap - something that needs to be there. The two aspects we highlighted previously were the individual complaints mechanism and the online safety commissioner in that regard.
Another amendment to this section was ruled out of order but it relates very closely to the idea of the online safety commissioner. In a constructive way, we tried to set out a little bit of what the role of an online safety commissioner might be. Senator Ruane might speak somewhat more to this because she took the lead on it. It sets out how an online safety commissioner could engage or play a role in the regulatory framework set out in the legislation.
My amendments are profoundly modest, possibly excessively so in that regard. I simply state that we should just at least name one. We are not empowered to insert in the Bill that there should be resources in this area but I think the Minister knows that there must be resources for online safety and an online safety commissioner. I hope she will introduce amendments to that effect. However, what we can do and what the Minister can do is to at least give the commitment that of these six commissioners, at least one will be an online safety commissioner. That seems to be a very clear first step.
The Bill provides for six members and for one to have a particular role as chair. It would be appropriate at that juncture to also indicate that another of these commissioners will play a particular role as being the online safety commissioner. Of course, arguments could be made to have more than one in that respect. Indeed, arguments can be made for having more than six people on the commission, but that may be a separate day's discussion. The public need to see that an online safety commissioner is part of the fundamental starting structure. I know the Minister is working on proposals on how that will work, including the resources and how the online safety commissioner will lead on various of the functions assigned.
I will shortly hand over to my colleague, Senator Ruane. She set out some of the thoughts we have for how an online safety commissioner might operate. The crucial point relating to amendments Nos. 35 and 36 is to give the guarantee that there will be an online safety commissioner.
I will speak to amendment No. 41, which is along similar lines to the other amendments.
Yes, profoundly modest as well. However, it goes a little further in providing that in naming an online safety commissioner, it will not prevent other commissioners from also having responsibility for online safety. The core point in all these amendments - we are coming at this from the same perspective - is that as part of the legislation one of the commissioners should have a very specific role and that he or she should be appointed as the online safety commissioner. When the Oireachtas Joint Committee on Media, Tourism, Arts, Culture, Sport and the Gaeltacht engaged with the Australian e-safety commissioner, one of the merits we saw of that office having that title was that there was an individual, a champion, czar or whatever phrase we want to use, who was able to drive this particular agenda.
The amendment that Senator Cassells and I proposed provides that while online safety is the responsibility of the entire commission, one individual is clearly named to lead on this. In the recruitment for the commission through the Public Appointments Service, one of the requirements should be to recruit somebody with expertise in the area of online safety, harm reduction, specifically looking at the safety of children online. When the seven members of the commission are appointed, the idea would be that they would come from different backgrounds with some of them having specific experience in broadcasting and one looking at regulatory law or whatever. In the composition of the commission, it is ideal to have people from different backgrounds. The legislation should specifically identify one of the commissioners as the online safety commissioner and for him or her to champion it.
I will await the Minister's response. It is core. Certainly, whether it is dealt with today or on Report Stage, I do not believe this legislation can progress unless an online safety commissioner is named very clearly within it.
As Senators, there are a number of areas that we cannot make proposals on regarding the online safety commissioner mainly relating to the resourcing of the commissioner itself, rather than just the resources for the commission in general. We see an online safety commissioner potentially overseeing a regulatory framework which would include but not be limited to the development of binding online safety codes that set out regulated online services or deal with harmful online content and conduct. My amendments in this area were deemed to create a cost on the State. Again, it is probably something that one could argue about because this is potentially already supposed to be part of the commission's job description anyway. It is really just about determining how that work is done and what the commission focuses on. Perhaps between now and Report Stage we could potentially see Government amendments on the online safety commissioner, its functions and also the potential staffing requirements of such a commissioner.
I support the comments of my colleagues. It is extremely important that we have an online safety commissioner. That was one of the main recommendations that came from the Oireachtas joint committee which looked at the Australian model which is very successful and working well. We need to follow best practice. I agree with the comment from Senator Higgins that we need people to buy into this legislation. If we proceed with this legislation and enact it but do not have a specific online safety commissioner, which is really core to what the Bill is about, it would be a wrong move. I fully support the amendments proposed in that regard.
It is also important to mention that the Irish Human Rights and Equality Commission and the Children's Rights Alliance and its many member organisations have been really clear on the importance of this.
Amendment No. 41 proposed by Senators Malcolm Byrne and Cassells and supported by Senator Carrigy is actually worded really well and is possibly better than our own amendment. If the Government was minded to accept that amendment, we would be happy to withdraw ours and lend our support to that amendment.
I modestly thank Senator Higgins for her praise.
That is profoundly modest.
I thank Senators. I am feeling the love in the Chamber today, among Senators themselves anyway.
Taken together, I can see that the proposed amendments seek to provide a legislative underpinning for the position of an online safety commissioner with responsibility for the functions of an comisiúin relating to online safety. That, as Senators have said today, is the core point being addressed in these amendments. Section 8 of the Broadcasting Act 2009, as amended by section 7 of the Bill, provides for the delegation of the performance of some of the functions of an coimisiún to an individual commissioner. As such, there is nothing in the Bill to preclude an coimisiún from delegating the functions relating to online safety set out in Part 8A of the Broadcasting Act, as amended by section 7 of the Bill, to a commissioner who shall be responsible for online safety. Indeed, the delegation of the online safety functions to a dedicated online safety commissioner has actually always been the intention.
As Senators have stated, it was one of the key recommendations of the pre-legislative scrutiny report of the Oireachtas Joint Committee on Tourism, Culture, Arts, Sport and Media. That report recommended an explicit legislative provision for an online safety commissioner within the Bill. This provision was not included in the Bill as initiated in this House but I do intend to provide for it by way of a Government amendment as the Bill passes through the Houses. I am pleased to advise this House that good progress has been made on the drafting of such an amendment in conjunction with the Office of the Attorney General. I am conscious of the feeling in the House that a Government amendment addressing this issue should, if time permits, be introduced in the Seanad. Therefore, I propose to introduce a Government amendment on Report Stage in this House explicitly providing for the position of online safety commissioner within the Bill. This would provide the Seanad with sufficient opportunity to debate and scrutinise said amendment.
I hope the Minister does feel our love because we do appreciate all of the work she is doing on this. Her assurance is very welcome. I agree with others that there will be issues with regard to the resourcing of the office and so on, but explicitly providing for that is very welcome.
I am happy to withdraw our amendments in that context. I thank the Minister for indicating her intentions. We can get into the detail later but it is so important that in this House a clear signal is sent that this is going to be a clear responsibility and function. A point that was very well made by Senator Malcolm Byrne, which I would urge the Minister to bear in mind when crafting her own amendment, is that while there should be a clearly designated role, that should not dilute the wider responsibility of the commission. It should mean that there is a leader with responsibility.
Amendment, by leave, withdrawn.
I move amendment No. 36:
In page 22, line 7, after “chairperson” to insert “, the Online Safety Commissioner”.
Amendment, by leave, withdrawn.
Amendments Nos. 37 to 40, inclusive, are related and may be discussed together, by agreement.
I move amendment No. 37:
In page 22, between lines 9 and 10, to insert the following:
“(3A) The Minister shall agree with the Public Appointments Service the selection criteria and process to be implemented in respect of the filling of any vacancy on the Commission.
These amendments are related. They relate to the make-up of the commission in terms of experience. Again, we lean very heavily on the Irish Human Rights and Equality Commission Act 2014 and earlier legislation relating to the make-up of that commission. The Bill, as authored, provides that members of the media commission shall be appointed by the Minister on the recommendation of the Public Appointments Service, PAS. However, the Bill does not explicitly state the selection criteria or the process by which members will be recommended to the Minister by the PAS. It is of great importance that there is oversight of and transparency in the selection criteria and appointment processes. The media commission stands to play a very important and influential role in Irish life and its impact will be felt throughout Irish society. Thus, it is imperative that the public has trust in the media commission and its membership. Amendment No. 37 will encourage such trust.
On amendment No. 38, because this goes back to 1998, the reference to membership of the Traveller community is separate to earlier definitions in terms of race, including colour, nationality, ethnic or national origin. There might be a more up-to-date version of how we have laid this out. In 1998 the Traveller community would not have been deemed or confirmed to be an ethnic minority. There is probably no need to separate them out. That may just be me being pedantic, but so be it. Currently the Bill does not make specific provisions for experience, both lived and learned, or the acumen required of prospective commissioners. This amendment seeks to ensure diversity in the make-up and perspectives of the media commission, in addition to an understanding of human rights and equality matters. Given the broad remit of the media commission and the impact it will have on a cross section of society, it is important that the commission is both reflective and understanding of the diversity of Irish life and society, and has a good grasp of the implications of the implementation of its regulatory powers on human rights, equality and civil liberties. A precedent for a legislative provision of this nature is contained in the Irish Human Rights and Equality Commission Act 2014. There is precedent for this amendment.
I am not going to add very much because my colleague has put the case very clearly. These amendments build on the core purpose of the audiovisual media services directive, which is the starting point for this legislation. As we discussed previously, that is not simply about protective, performative or managerial functions but also about a proactive role in the promotion of equality of inclusion, diversity, participation in the cultural space and so forth. There is a really positive role for the commission there and it is really important. Of course, there is also a public duty with regard to equality and human rights and one of the best ways to make sure that public duty is met is if it is reflected in the make-up of the commission, that is, those who are making the decisions. That is going to have an important impact.
In amendment No. 38 we set out a number of criteria, based on the IHREC legislation. There could, of course, be a very strong argument for at least giving the space for socioeconomic criteria to be included, which was discussed previously. We did not seek to prematurely anticipate that but it would be appropriate down the line.
Amendment No. 37, which I hope the Minister will consider if she cannot accept amendment No. 38, is not prescriptive in that sense. Perhaps we could table another version with which the Minister may agree. If she is concerned that this is too much for herself, or another Minister in the future, perhaps there are caveats and perhaps the Oireachtas could see what those criteria are. I wish to point out that these are not generic appointments and people would have a very particular function.
Amendment No. 37, which relates to amendment No. 39, seeks clear selection criteria because sometimes a Minister simply appoints people to boards who have experience of being a member of a board and are used to being on a board but, in fact, one might need people who do not have direct experience of a board because they have relevant experience of a personal diversity perspective that they bring or, as in amendment No. 39, their expertise is very pertinent. All of the amendments reflect the complexity of this area and, therefore, it is important that those appointed to this role are not simply briefed and follow through but that they actually bring expertise. It is currently unclear and - reserving the right in the future - amendment No. 38 is modelled on the Irish Human Rights and Equality Commission in terms of the diversity and make-up of a board. Perhaps I am pre-empting amendment No 39, but I would also look to the climate legislation.
Amendment No. 39 seeks to insert the line "an appropriate balance of knowledge of, and expertise in the following: (a) arts and culture; (b) data protection and digital empowerment; (c) online safety and digital regulation; and (d) human rights and public participation.”. Somebody can recommend systems and other things that we want to discuss but we really want to ensure that people have the core tools to understand that information. When we brought forward the climate legislation we brought forward a really clear list of the types of expertise that is needed and a requirement of balanced expertise on the board. Senator Ruane and I have set out what we think the board should look like in amendments Nos. 38 and 39. Our amendment No. 37 simply asks that the Minister is clear about what the board might look like. I think it is important that more thought is given to the make up of the board in that regard.
These are interesting amendments. It is my view that when the commission is appointed we should be really proud of them because they are going to be among the most powerful regulators in the State as they will oversee this work. The board should reflect diversity. I am always cautious about naming too many groups and trying to match them up. The board needs a wide variety of expertise, which relates to the earlier point on the online safety commissioner that there should be someone with specific expertise. On amendment No. 39 I would certainly support that at least one of the members should have an expertise in the area of online safety. I would add, because there is always a fear that it will get lost, that having experience in broadcasting as one of the specific areas would be particularly important. Yes, one of the areas should be digital empowerment but I am not sure about data protection. Perhaps data protection is more appropriate with the Data Protection Commission with regard to experience and responsibility but I think that can be teased out.
The Minister will be aware, as regards appointments to the boards of RTÉ and the Broadcasting Authority of Ireland, that it is more clearly specified as to the levels of experience and knowledge that those appointees are expected to have, and their backgrounds. The principle of this can be explored in more detail. We can look at how to ensure a very diverse commission yet at the same time get the seven best people who have a broad range of experience and knowledge so they can, as a collective body, contribute because we want a regulatory body that is effective.
There is a dispute about whether there should be seven commissioners. Having seven minds working around a table on these core issues is better than one. My comment speaks to the point made about the fact that there is only one Data Protection Commissioner as opposed to a series of them and I know that is a separate debate. We need to think about, when this commission is up and running and when the recruitment process is taking place, what the advertisement will say and identify as the core criteria. The RTÉ and BAI legislation could provide the basis for some of this discussion but my key concern is that whatever we do, we ensure that we get the best people on the board.
I thank Senators for their amendments. It is important to note that these are not board positions but full-time regulators who will go through a rigorous process to ensure their suitability similar to the Data Protection Commissioner or ComReg. Amendment No. 37 amends section 11 of the Broadcasting Act 2009, as amended by section 7 of the Bill, to provide that I, as Minister, would agree the selection criteria and process to be implemented in respect of the filling of any vacancy on the commission. I believe this amendment might duplicate provisions set out in the Public Service Management (Recruitment and Appointments) Act 2004, in particular section 34, which sets out the functions of the Public Appointments Service.
Section 11(3) of the Broadcasting Acting 2009, as amended by section 7 of the Bill, provides that the chairperson and commissioners shall be appointed by me, as Minister, on the recommendation of the Public Appointments Service. One of the reasons for specifying this in the Bill is to ensure that the codes and practices, set out under the Public Service Management (Recruitment and Appointments) Act 2004, applied to the recruitment process. The recruitment and selection processes will be closely guided by the code of practice on appointments to positions in the Civil and Public Service, which set out the application of the principles of probity, merit, best practice, fairness and transparency to the recruitment of public servants. This will ensure that the process is open, transparent and fair.
My officials are working with the Public Appointments Service to develop the selection criteria for the appointment of the commissioners. I anticipate that this will involve an executive search process given the specific skillset and expertise required, which Senators have mentioned, that commissioners and particularly the online safety commissioner may require. I, as Minister, will ultimately agree the selection criteria for the post as set out in the recruitment booklet that will contain the job description and selection criteria for the role of commissioner. Given that I believe the intention set out in the amendment is already provided for in legislation, and in practice, I do not propose to accept it.
Amendments Nos. 38 and 39 describe some areas of knowledge, expertise and experience that both I, as Minister, and the Public Appointments Service shall seek to ensure that an coimisiún has. I agree that it would be desirable that commissioners would have collectively, or individually, some or all of the knowledge and expertise described in the amendments. However, while I recognise the intention of these amendments, I would be concerned that there is a danger in being overly prescriptive as to the knowledge and experience that members of the commission should have. So I am not persuaded of the merits of amendments Nos. 38 and 39 and, therefore, cannot accept them.
Amendment No. 40 would appear to duplicate provisions already in law. I understand that section 42 of the Irish Human Rights and Equality Commission Act 2014 provides that a public body shall have regard to the need to eliminate discrimination, promote equality of opportunity and protect human rights. As a public body, an coimisiún will already be subject to the provisions of that Act. I expect that an coimisiún would not only comply with section 42 of the Act but also, in accordance with the spirit of the Act, demonstrate a culture and practice of respect of human rights.
I understand that the UN Convention on the Rights of Persons with Disabilities was ratified by the State and entered into force in 2018. I will ask my officials to consult officials in the Department of Children, Equality, Disability, Integration and Youth about the status of the convention. So while I do not propose to accept amendment No. 40 today I propose to return to the matter on Report Stage.
On amendments Nos. 39 and 40, there is a Public Appointments Service but, as the Minister mentioned, it draws from the civil and public service code. The concern is that is often for generalists, it is focused on a high-calibre person, and a person who has probity, is trustworthy and moves between roles but what is needed here is expertise. There is quite a bit of precedent for setting out very clear requirements.
We were very clear in our amendment. We do not prescriptively say that any individual must meet these standards and seem to interfere in the process there. We are not interfering with any of the functions of the Public Appointments Service in recommending, or of the Minister in approving. We simply say that in performing their functions they should seek to ensure that there is an appropriate balance of knowledge. That is really important because it is not simply to do with the calibre of the individuals; that is not in question and the Public Appointments Service does that very well. It is about ensuring that the commission as a whole is equipped with core expertise and knowledge.
The Minister may like how we have framed it or she may prefer her own wording. However, we should have an examination of the functions and should give some thought to what some of the key skills are. The broadcasting legislation was mentioned and it would be interesting to examine that. I think that climate legislation is another important example. This is key because the commission will not simply be one of the most important regulators in the State but probably one of the most important regulators in Europe.
I had not realised that amendment No. 40 was in this grouping. I thank the Minister for responding to it. It relates to the public duty on equality and human rights. I reserve the right that we might come back. Every public body in the State has a positive duty to promote equality and human rights - not simply not to discriminate, but to actively promote. There is a very uneven understanding of that responsibility. In the reporting of the commission, obviously we are not creating new law here, but we are trying to almost remind and ensure that there is thought given and that it is reflected. We suggested including it here in the performance of functions. I may come back with an amendment to it in the reporting on the performance of functions. Perhaps that is a more appropriate way to approach it.
I do not want to anticipate what the Minister might have to say about the United Nations Convention on the Rights of Persons with Disabilities. However, I remind her that it has been ratified. It is law and it is an obligation on the State. The optional protocol allows for the individual complaints mechanism. That may be one of the reasons we want to get it into legislation early because if we wait a while, we can end up waiting a long time. The optional protocol to it is still to be brought through. The actual articles of the United Nations Convention on the Rights of Persons with Disabilities are there and have been ratified by Ireland. Its operation should be reflected in our legislation. Because it is a new commitment that the State has made, it would be really appropriate. The audiovisual directive contains very explicit language on disability and inclusion being one of the core purposes of that directive. It would be appropriate for that to be referred to in some way here.
I will return to amendment No. 40. As I stated in my contribution, I know that the convention has been ratified by the State. I do, however, want to have that engagement with the Minister, Deputy O'Gorman. I do not propose to accept amendments Nos. 37, 38 or 39.
Amendment, by leave, withdrawn.
I move amendment No. 38:
In page 22, between lines 9 and 10, to insert the following:
(3A) In making recommendations for appointment of persons to the Commission, the Public Appointments Service shall have regard to the need to ensure that the members of the Commission broadly reflect the nature of Irish society and that such persons possess knowledge of, or experience in—
(a) matters connected with human rights and equality, and
(b) without prejudice to the generality of paragraph (a), matters connected with persons or classes of persons who are disadvantaged by reference to the following factors:
(i) gender;
(ii) civil status;
(iii) family status;
(iv) sexual orientation;
(v) religious belief;
(vi) age;
(vii) disability;
(viii) race, including colour, nationality, ethnic or national origin;
(ix) membership of the Traveller community.
(3B) In this section, the factors specified in subparagraphs (ii), (iii), (iv), (v), (vii) and (ix) of subsection (3A) have the meanings ascribed to them in section 2 of the Employment Equality Act 1998.”
Amendment, by leave, withdrawn.
I move amendment No. 39:
In page 22, between lines 9 and 10, to insert the following:
“(3A) In performing their functions under subsection (3), the Public Appointments Service and the Minister shall seek to ensure that the Commission has an appropriate balance of knowledge of, and expertise in the following:
(a) arts and culture;
(b) data protection and digital empowerment;
(c) online safety and digital regulation; and
(d) human rights and public participation.”.
Amendment put and declared lost.
I move amendment No. 40:
In page 22, between lines 9 and 10, to insert the following:
“(3A) In performing their functions under subsection (3), the Public Appointments Service and the Minister shall have due regard to obligations under section 42 of the Irish Human Rights and Equality Commission Act 2014 and the United Nations Convention on the Rights of Persons with Disabilities.”.
Amendment, by leave, withdrawn.
I move amendment No. 41
In page 22, between lines 25 and 26, to insert the following:
“(10) (a) The Minister shall designate one member of the Commission as having primary responsibility for the exercise of the functions of the Commission specified in Part 8A.
(b) This member, having primary responsibility for the exercise of the functions of the Commission relating to online safety, shall also be known as the Online Safety Commissioner.
(c) Nothing in this subsection shall be interpreted to prevent other Commission members from taking an interest in or responsibility for the exercise of functions related to online safety.”.
On the basis of the commitments the Minister has given, we will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 42 and 45 are related and may be discussed together, by agreement.
I move amendment No. 42:
In page 23, between lines 3 and 4, to insert the following:
“(ba) the Commissioner has breached section 37 of this Act,”.
This relates to the declaration of interests. The amendment provides that one of the grounds on which a commissioner may be removed from office would be if he or she had breached section 37 of the Act. Section 37 relates to the disclosure of interests. We have had some very unfortunate examples, including quite recently, of board members who did not properly declare interests. While section 37 sets out the obligations regarding declaration of interests, we are simply suggesting that it should be clearly made one of the grounds on which a commissioner may be removed from office.
Amendment No. 45 refers to the same principle. Other Senators have spoken about the importance of trust in this commission. I believe Senator Malcolm Byrne spoke about the level of international scrutiny this commission will receive. Very large amounts of money are potentially at stake regarding the operation of this commission. Some of the wealthiest actors on the world stage may potentially be impacted by the decisions made by this commission. In that context, it is very important that declaration of interest is not just there as a standard, but that there is very strong follow-through. We should not have the situations we have sometimes seen where people did not realise, did not quite properly declare, went out of the room for a minute and then came back in, or simply forgot about it. This is just to copper-fasten that as a ground for removal. It empowers the Government of the day in that regard.
I believe the provisions in amendments Nos. 42 and 45 are largely addressed by the Bill as published. Section 37 of the Broadcasting Act 2009, as amended by section 7 of the Bill, requires that a commissioner or other relevant person should not be party to a consideration of matter by an coimisiún where they, or a connected person such as a family member, may derive a benefit from that consideration or where they have an interest in a business or organisation which might also derive a benefit from that consideration. Section 37 also requires them to disclose to the commission that they may benefit from the consideration. The provisions of section 37 are designed to prevent any conflicts of interest that may arise in the course of the work of an coimisiún and to ensure the independence of an coimisiún in its consideration of matters, particularly those pertaining to its regulatory functions.
Amendment No. 42 would provide that a commissioner may be removed from office by the Government if he or she failed to comply with the requirements of section 37. Amendment No. 45 would provide that a commissioner would cease to hold office, were he or she to breach section 37. As I said, I believe the Bill already addresses the intentions of the amendments. Section 12(5)(c) of the Broadcasting Act 2009, as inserted by section 7 of the Bill, provides that the Government may remove a commissioner where he or she has a conflict of interest of such significance that he or she should cease to hold that office. Such a conflict of interest might include, for example, failure to disclose a relevant interest, such as acquiring shares in a provider of communications media with a value greater than €5,000 under section 37. If the Government does not seek to remove a commissioner for a breach of section 37, there is also provision for ministerial measures to be taken.
Section 37(3) provides that where a commissioner fails to comply with section 37 by, for example, failing to disclose a relevant interest in an organisation that may benefit from a decision of an coimisiún in which the commissioner is involved, then I, as Minister, shall decide the appropriate action to take. I believe that the Bill as published addresses the issues raised by the amendments. Accordingly, I do not accept amendments Nos. 42 and 45.
It is clear that the basic architecture is there, and I accept that the declaration of interests indicates that action may be taken, but there is a very different level of seriousness in respect of these measures for removal. It is not enough to simply say there may be provision that appropriate action may be taken. Again, we must bear in mind that many of these actors will potentially be influential and could apply significant pressure. This is for every future Government down the line, so it is important that we do not have any ambiguity on the issue of a conflict of interest.
I accept there is a requirement to declare and a provision for the Minister to decide the action, as well as the commission itself being able to decide if it wants to terminate, but the Minister is only given the right to determine an action, whereas if that was named in section 12(5)(d) as a failure to properly and appropriately declare an interest, it would make it very clear that the Minister has that power.
At the moment, the power under section 12(5)(c) on the removal of a commissioner from office by the Government refers to "a conflict of interest of such significance". That is ambiguous and implies that there is a burden of proof whereby the Minister has to prove how significant it is and how it was a major breach, whereas that would not be the case if there was a reference to declaration of interests from the get-go. We should not wait for a situation to arise where it has become a huge conflict. It should not be the case that a person cannot declare his or her interests and then claim to have simply forgotten and for it then to be said that, luckily, no significant decision came about as a result of that. The very fact of the omission of a declaration of interest of itself should be a ground whereby the Government not "must" but "may" remove a commissioner rather than it having to be proven to have been of great significance that he or she did not do so.
As I have indicated already, I will not be accepting amendments Nos. 42 and 45 because I believe the Bill, as published, addresses the issues raised in the amendments.
Amendment put:
The Committee divided: Tá, 7; Níl, 14.
Tá
- Black, Frances.
- Clonan, Tom.
- Higgins, Alice-Mary.
- Ó Donnghaile, Niall.
- Ruane, Lynn.
- Sherlock, Marie.
- Wall, Mark.
Níl
- Blaney, Niall.
- Burke, Paddy.
- Buttimer, Jerry.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Fitzpatrick, Mary.
- Kyne, Seán.
- Lombard, Tim.
- Martin, Vincent P.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
- Ward, Barry.
Tellers: Tá, Senators Alice-Mary Higgins and Lynn Ruane; Níl, Senators Seán Kyne and Malcolm Byrne.
Amendment declared lost.
I move amendment No. 43:
In page 23, line 38, after “Oireachtas” to insert “and the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media”.
Where the Minister has decided to remove a commissioner from office, as well as laying before the Houses of the Oireachtas a statement on the decision and the reasons for it, and given that so many documents get laid before the Houses, we suggest it would also be laid before the Oireachtas Joint Committee on Tourism, Culture, Arts, Sport and Media. Again, that is to ensure that if there is an issue of significance or if there is a pattern that relates to other legislation or other concerns, that it would be appropriate that such a group within the Oireachtas would be aware of the Government's decision and the reasons for it. A document laid before a committee is more likely to reach the eyes of those who are relevant. We know there is great expertise within the committee, as we saw in the report it produced on this legislation. The purpose of the amendment is simply to suggest that the committee would also be notified, as well as the Oireachtas as a whole, where there has been a removal.
I support the amendment. It would be good housekeeping to inform the Chair of the Oireachtas joint committee that a letter would be forwarded to it.
I thank the Senator for her amendment. Section 12 of the Broadcasting Act 2009, as amended by section 7 of the Bill, sets out the conditions of office of a commissioner. The section also provides, as we discussed in the preceding amendments, that the Government may remove a commissioner in very specific circumstances. Given the gravity of such a decision and to meet the requirements of natural justice, this section sets out very clear steps for removing a commissioner.
The Government must give a notice in writing of a statement proposing to remove a commissioner to that commissioner, setting out very clearly the reasons for the proposed removal and providing an opportunity for the commissioner to make representations to the Government. Section 12(10) provides that should the Government decide to remove a commissioner following the issuance of a notice, the Government must lay before each House of the Oireachtas a statement in writing of the decision and the reasons for it. Amendment No. 43 would require the Government to also provide the relevant Oireachtas committee with a statement. Given section 12(10) already provides that a statement should be laid before the Oireachtas, I am advised that this would fundamentally be a duplicate provision and I do not propose to accept the amendment.
I appreciate that the statement may be laid before the Houses. Perhaps what Senator Carrigy said that rather than the laying of a statement in front of the committee, simply a notification to the Chair of the committee that such a statement has been laid, might suffice. I will not press the amendment at this point. However, as the Minister said, there is quite a seriousness and a gravity in this. For example, if some of the grounds were significant in matters the committee might be considering or if a pattern were to emerge, it would be appropriate that its attention would be directed to that. Again, I will withdraw the amendment for now. The more moderate proposal of just a notification of laying of the notice before the Houses to the Chair of the relevant committee might be something we could consider on Report Stage.
Amendment, by leave, withdrawn.
Amendments No. 44 and 52 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 44:
In page 24, to delete line 13.
This issue is not unique to this legislation, but it is something that is being applied to quite a number of State appointments. It is the exclusion of members of local authorities from effectively applying for these jobs. As the Minister is aware, this is not about a political appointment of a Minister appointing somebody to a role. This is somebody who may be a councillor and have a specific area of expertise. They apply for the job and come through an independent and fair process but because they are a member of a local authority, they are excluded. I totally understand why all of the other categories are excluded. There are valid reasons why Members of the Oireachtas are excluded. However, at a time when we are trying to encourage people to become local authority members, to continue to exclude them from State boards or holding other offices, such as a member of the media commission, is wrong. I do not see where there will be a conflict of interest between somebody being a local councillor and a member of the commission. Obviously, they will not be able to pronounce on matters related to the media as a local councillor. However, as a general rule, there is nothing in this legislation that devolves any authority to any local government. There is no bar in the exclusions from somebody, for example, being an adjunct professor of media at one of our universities. Yet, simply because someone is a member of a local authority, they are being excluded. A similar provision is being provided later on, which is what amendment No. 52 applies to with regard to staff within the commission.
The Minister knows how difficult it is to try to encourage good people to run for local election, and it is becoming tougher and tougher. To continue to close off career opportunities does not make sense. I want to know the justification as to why a member of a local authority cannot apply for a staff job working at the commission, or cannot apply to become a commissioner. There could be somebody who may be a regulatory lawyer with a specific expertise who happens to be a member of a local authority and who would make a very good commissioner. Somebody who has broadcast or film production experience would also make a very good commissioner. It is not about the Minister making a political appointment, as Minister; it is about people going through the application process and qualifying on the basis of their merits.
I raised this issue with the Minister of State, Deputy Peter Burke, as the Minister of State with responsibility for local government and planning, this morning because this is being applied to legislation across the board. I would totally get it if local authorities had some kind of function in this area but they do not and will not. I will look to push this unless the Minister can give me a valid reason a local authority member should be excluded from either applying for the job of commissioner or being a member of staff.
I want to agree with Senator Malcolm Byrne. This is a clause that has been entered pro forma into legislation across the board for probably more than 15 years. It fundamentally ignores the fact that within local government, the membership of local authorities, there are councillors with great expertise in a whole range of areas. The Minister and I served on the same local authority. She and I know councillors throughout the country who have particular expertise and who could be of use, not just to the commission in this Bill, but in a whole range of other areas. However, they are excluded because there is this drive within central Government to exclude them from the membership of certain boards, commissions, etc. It is myopic, to be perfectly honest. It ignores the breadth of experience and expertise that we have at local level.
As was said, we are trying to encourage more people to get involved in local politics and local government. It is hard enough. It is not particularly rewarded or respected. This is just another indication of the low esteem in which central Government holds local government. It is wrong in no uncertain terms. I would encourage the Minister to look seriously at this amendment because, as I said, for 15 years or more, it appears to have been inserted in legislation as a matter of course. It is a shame and it is myopic.
I support the comments of Senators Malcolm Byrne and Ward. As was said, we have a vast amount of experience within our local authorities. However, the legislation states that the person will cease to become a member if they are elected. They have the experience to be appointed a member of the commission, which is what we are looking for. If they are elected to public office, and, as was said, we are struggling to get people to put themselves forward for public life at that level, they would have to give up that job, despite the fact they have the experience to hold that position. It is wrong.
This provision comes through so much legislation and it probably merits a general examination because it has come through as a concern repeatedly. We know the phenomenon where many people are leaving their roles in local authorities. We also know the wages for those on local authorities are not enough that people can continue in their role. People have to choose between progression in their career in a small country where there may be only a few specific roles that use their skills or training to the proper level and serving with the local authorities.
There are caveats that might need to be addressed. The one area where there is potential overlap relates to things such as data centres, but that is something that can be dealt with. If there are interests there, they need to be dealt with. It can be thought through.
Section 17(5) states, “without prejudice to generality of subsection (4)” while section 17(4) states, “A member of the staff of the Commission shall, unless otherwise provided for under subsection (2)...”. Within section 17(2), is there capacity for the Minister to address that issue and those concerns about local authorities where the commission might set out terms and conditions of the service of a member of staff with the Minister's consent?
Another piece I am very concerned about, which relates to the public service and politics generally, is that we have this very hard signal that goes into much legislation that states that if a person is a local authority member, they cannot do this or that and will not be considered for this or that, and all of the rest. Beginning before somebody is a local authority member, if you were a staff member of an organisation and were considering putting yourself forward for public office, with the great likelihood of being unsuccessful, which the majority of candidates are, you are looking at very strong signals that if you are successful, you would be required to give up your role.
We do not see measures corresponding to those that are rightly available to members of the teaching profession. For example, there is an option for a teacher to take a period of leave simply to run for public office. There is, therefore, encouragement within the contracts for teachers to do this. Again, there is nothing that encourages people who are employees. There are many self-employed people and also many teachers in the Oireachtas. The reason for this is that while certain professions make it easier, other professions do not. It would be a real pity if good people did not run for office because it would mean taking a gamble. If they are getting an oblique signal that they will have to step down if they are successful, they may not even run. There is something there around the message that we send. There are two pieces here - those who are already members and those staff members who may have something really important to bring to politics.
I understand the intentions that underpin amendments Nos. 44 and 52, which would have the effect of allowing a commissioner or member of staff of an coimisiún to also hold office as a member of local authority.
As general principle, I do not wish to put any obstacles in the path of those who are seeking election to local authorities. As a former councillor - I served with Senator Ward, as he mentioned - I know the important work undertaken by local authorities and the vital role councillors play in holding local authority executives to account and in making and influencing policy, particularly planning policy. However, it is a long-standing principle that holders of positions in the civil and public service are prohibited from taking up political appointments. This is the consistent approach taken across legislation underpinning regulatory bodies, such as the Data Protection Commission, ComReg, and the Competition and Consumer Protection Commission.
The purpose of the prohibition on local authority membership is to ensure that a commissioner does not do anything that could give rise even to a perception that his or her official actions are in any way influenced, or are capable of being influenced, by political or party-political motives. This is particularly important in the context of the role of coimisiún na meán, as the independent regulator of the media.
I am conscious of the requirements of Article 30 of the audiovisual media service directive, which provides that member states shall ensure that national regulatory authorities are legally distinct from the government and are functionally independent of the respective government and any other public or private bodies. The European Commission will, therefore, closely observe the transposition of the directive. In any case, I would not wish to do anything that would not be in compliance with the directive. Accordingly, I do not propose to accept this amendment.
I appreciate the first part of the Minister’s answer to the effect that this has always been the practice and should, therefore, continue. That does not really answer the question around why we are trying to exclude members of local authorities. It certainly makes sense that where a conflict of interest arises, people should have to step outside the room. It also makes sense where there is a conflict with regard to any of the functions of the commission. However, where somebody has the necessary expertise qualifies, we should not exclude that person simply because he or she is a local authority member.
The Minister made reference to other member states. I have looked at this issue and in many member states, local authority members are not excluded. They can hold their local authority membership, while working for state agencies and boards.
To address my second amendment, whatever about the seven full-time commissioners, given the serious nature of the role of members of the commission, to exclude members of staff of the commission, which, from a reading of the Bill, may even include clerical and administrative staff, from running and getting involved in local government is a nonsense.
I ask the Minister to look at this again and come back on Report Stage. I appreciate, as colleagues have also said, that this a problem across all areas of government with regard to appointments. We are going to continue to exclude more and more categories of people from running as local authority members. I entirely take the Minister’s point that there cannot be any perception of damage being done to the commission. However, I made the point earlier that there is no bar, for instance, for somebody who may be an adjunct professor of media being appointed as a commissioner or becoming a senior member of staff within this organisation. He or she, during the course of lectures or public comments, may say something that would arguably bring the commission into disrepute. I do not accept the logic that the Minister is applying in this case. I ask her to engage before Report Stage with the Minister of State, Deputy Peter Burke, who responded to me this morning on a Commencement matter around this general principled issue. It is something we have brought up in this House a number of times. We will not get more good people involved in local government if we continue to narrow their career advancement opportunities. That is what this Bill is doing.
Again, I understand the intentions underpinning amendments Nos. 44 and 52 but, as I said, in light of the role of coimisiún na meán as the independent regulator of the media and in respect of the requirements of Article 30 of the audiovisual media service directive, I will not accept this amendment.
Holding political office is different from other political conflicts. It is not just a matter of stepping outside the room. It would be seen as party political. Staff will also play important roles in investigations. I will not be accepting the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 45:
In page 24, between lines 13 and 14, to insert the following:
“(ha) is found to have breached section 37 of this Act,”.
Amendment put and declared lost.
Amendments Nos. 46 to 50, inclusive, are related and may be discussed together.
I move amendment No. 46:
In page 24, lines 24 and 25, to delete “, where the value of the interest exceeds €5,000".
The Bill, as it stands, includes arbitrary thresholds with respect to the financial interests that a prospective commissioner may hold in a provider of communications media. To ensure absolute independence, it is preferable that no member of the commission would have a vested interest in the financial well-being of a provider of communications media. This amendment removes the arbitrary threshold of €5,000 as it relates to an individual’s held shares or any other proprietary interest in a particular provider.
Amendment No. 47 is in the same vein and relates to where the aggregate value exceeds €13,000. The Bill, as it stands, refers to financial interests that a prospective commissioner may hold in a provider of communications media to ensure absolute independence. In a similar vein to the previous amendment, this amendment proposes to remove this arbitrary threshold of €13,000 as it relates to an individual’s aggregate held bonds, debentures or other like investments in a particular provider.
Amendment No. 48 relates to where the aggregate value exceeds €650. The Bill, as it stands, includes another arbitrary threshold in relation to the terms of the financial interest that a prospective commissioner may hold in a provider of communications. This amendment seeks to remove that arbitrary threshold of €650 as it relates to gifts or other benefits that an individual may receive from a provider.
The amendment builds on the concern that this regulator will be under significant scrutiny. It will have an incredibly important role in the State, Europe and internationally. These provisions are borrowed from other areas. There is a concern here. I am struck by the figure of €13,000 because I think it has been regarded as a tiny figure. However, it is a significant figure for some people. It is a sign of who we often expect to be in roles that we consider that they would regard €13,000 as an insignificant figure in terms of the aggregate value of investments, bonds and debentures in a particular online service provider.
A sum of €13,000 is significant. What is also important is the fact that this is the provider. We may have a situation whereby we have some people who are ending up with smaller amounts of shares but in multiple online providers and perhaps linked companies that are online providers. There is a whole question there.
The very fact that one is a shareholder in a company or online provider that one is regulating is in itself really significant. It is already in itself potentially a concern because one has a relationship with that online service provider in that context. If one does inadvertently happen to have shares as part of a portfolio, they really should be divested before taking up the role as commissioner. The fact of having a share-holding relationship with a provider is already relevant and should be considered as a "relevant interest" in terms of a particular communications media piece. One may also be part of a community of shareholders whereby one has a small share but may be part of a community of shareholders. We know that it is the case for some of the online media providers that are likely to be regulated by this legislation.
I know that these are provisions taken from other legislation but they merit a real examination, particularly bearing in mind the very significant financial role of this commission. The Minister mentioned, in relation to the local authorities, the importance of not just the actuality but the perception of something that would be improper. To be a shareholder in a company that one is going to regulate and set the code for is in itself something that sets a very negative perception. In that regard, I hope the Minister will consider these amendments and take them on board and will also address situations where somebody may have a relevant interest in a sector or a set of companies, that is, he or she has stakes in multiple companies within a sector. One of the sectors which many people in this House hope will be very strongly clamped down on and regulated, for example, is the area of cryptocurrency. It would be worth considering those current provisions and whether they are fit for purpose for this particular body and its particular role.
I will be moving amendment No. 49 in due course, which is part of this group, but I wish to comment on the previous remarks. I agree in principle with some of the points that are being made. Senator Ruane said that the figures are a little arbitrary but what is important is that there are figures there. The effect of the amendments would be to remove any limits. On gifts, for example, if a provider offered one tea or coffee, bought one a drink or invited one to a particular event, that could be classified as a gift and that may cause a difficulty. There must be some kind of threshold unless we are moving to an Olympics-style situation whereby somebody cannot even accept a cup of tea. I do not think that the figures are unreasonable but I understand the point the Senators are making.
The amendment that Senator Cassells and I have tabled is more of a point for discussion really. The assumption is that having an interest in one of these providers is purely based around having a financial interest, whereas in terms of how media operate at the moment, somebody can be a media influencer but may not necessarily have shares in the platform. He or she would certainly have an interest in how that platform is regulated. If an individual has a significant number of followers on a social media platform, he or she is going to take an interest in the manner in which that platform is going to be regulated.
If, for instance, somebody is appointed as a commissioner and he or she is a significant social media influencer and has a range of experiences, decisions could be made by the commission that could impact on the expansion of that person's influence using his or her own social media channels. I accept that some of that may be around the development of codes of behaviour for commissioners by the new commission but we need to look at this in terms that are broader than just financial in the context of somebody's interest in particular platforms.
I appreciate the point that in this amendment the figure we include is arbitrary, that of 20,000 followers or subscribers, but if one is operating a YouTube channel with 20,000 subscribers and the commission is making decisions around the regulation of YouTube, one is going to have an interest in that, even though one may not have shares in YouTube. We have included this amendment primarily for debate purposes. When we look at media providers, we need to think about interests more broadly than simply having financial shares in a company. These are very different platforms. The media commission will look to regulate the metaverse in the future, for example. If people have interests in the sense that they have a number of very popular avatars that are operating within the metaverse and if a decision is going to be made that may have an impact, that is a cause for concern. We must think about how we can broaden the definition of interest beyond purely having a direct financial interest or share in a company.
Senator Byrne makes a fair point on the gifts. It is quite a low amount and it is often very hard to determine the value of something that one is given and it might create an unnecessary concern as to whether an ornamental paperclip is worth-----
If one got an elite drink, like a rare bottle of wine or something-----
Exactly, and I take that on board. It is a fair point. The issue on shares is important, though, especially in some of the more fast-moving providers. How many times have these companies split? How many times have the value of shares changed, with companies splitting four, five or six times? That question of what gets boosted in its potential, or the early actor, is a concern. We should not have a situation where people have shares in the companies that they are regulating but Senator Malcolm Byrne makes a good point on gifts.
I would add a point back for debate on the online accounts. It is a good point but it should be more specifically directed at those who have a monetised or commercial personal account. It is different when one has an account for which one is getting sponsorship, product placement, advertising and so on. While the provider may not be paying one, it is facilitating one's economic activity indirectly, even though the monetary input comes from others. Given that this is a section on financial interests, it would be better to identify that as a relevant issue but to ensure it is limited to the aforementioned individuals and not to someone who has, for example, put up lots of pictures of their adorable dog for no money at all, which lots of people liked. I am actually thinking of my friend, Claire Power, who has a very beautiful dog.
I appreciate that. I am thinking of my colleague, Senator Cassells, who spoke the other day about political advertising and said that Deputy Catherine Martin hates puppies, which for the record, is not true. She loves puppies. This is relevant even in the case of non-commercial accounts through which one is able to influence others. It is not just about being able to commercially influence. This may be about political influence or influence in other areas. One may not be monetising it. It is not just all about monetary gain. Part of this relates to potential conflicts of interest. If we appoint somebody as a commissioner who has 100,000 Twitter followers, he or she has significant influence on that platform, albeit it is not being used for monetary purposes. I am not going to push this but we need further debate on how we determine what having an interest in a particular platform means.
I thank Senators for their amendments but I do not propose to accept them.
As regards amendments Nos. 46, 47 and 48, section 12(13) of the Broadcasting Act 2009, as inserted by section 7 of the Bill, sets out what constitutes a relevant interest for the purpose of determining whether a commissioner should cease to hold office by virtue of him or her, or a connected person, which includes a family member, holding a relevant interest in a provider of communications media. Section 12(11)(i) provides that a person shall cease to hold office as commissioner if he or she acquires a relevant interest in a provider of communications media. The term "provider of communications media", as set out in section 3(2)(s) of the Bill, is a broad one. It includes not only those services that will be subject to regulation by the coimisiún but also newspapers or periodicals consisting substantially of news and comment on current affairs. A person is considered to have a relevant interest if he or she, or a connected person, holds equity with a value greater than €5,000 or debt with a value greater than €13,000 in a provider of communications media. The person may also hold a relevant interest if he or she receives gifts or benefits with a value greater than €650 from the provider or hold a directorship or shadow directorship in a provider.
A relevant interest may arise if a person or connected relative is party to an arrangement regarding land with the provider. The values for the maximum debt and equity that may be held and the benefit that may be received were arrived at in consultation with the Office of the Parliamentary Counsel. I believe the balance we have arrived at is correct. It fulfils the public policy purpose of ensuring a commissioner does not inadvertently cause a cessation of office by virtue of him or her, or a connected person, acquiring a small interest or deriving a small benefit, while also protecting against any conflict of interest that may arise.
I understand the intention of amendments Nos. 46, 47 and 48 in seeking to go even further than the Bill in addressing conflicts of interest. The thresholds also apply to connected persons, including family. However, the proposed amendments could have unintended effects. In particular, prohibiting the holding of debt or equity in providers of communications media by connected relatives could cause commissioners to cease office if a family member acquired any debt or equity whatsoever in a provider of communications media. In this regard, I am thinking of pension products that involve investments in passive or active pension funds, which may give rise to small debt or equity holdings in respect of providers of communications media. This may be wholly outside the control of the connected relative but would nonetheless require the commissioner to cease office if these amendments were accepted. As I have said, I believe we have the balance right in the Bill in tackling any conflict of interest that may arise, while also recognising that small interests in providers of communications media may be held.
I understand the intention behind amendment No. 49 in seeking to broaden the definition of "relevant interest" to encompass social media accounts. However, regarding the core principle of ensuring commissioners or connected persons do not derive benefits from the providers of communications media, I believe section 12(13)(d) of the Broadcasting Act 2009, as amended by section 7 of the Bill, achieves this by limiting the value of any benefits that may be received by a commissioner, connected person or staff member of the coimisiún from a provider of communications media to €650. This would also apply to income derived from the monetisation of a social media account, for example.
Although the Senator said amendment No. 49 was really raised for debate, I worry it could give rise to unintended consequences whereby a commissioner could be removed from office through no fault of his or her own as a result of this provision. For example, an ill-intentioned person or entity could purchase a large quantity of fake followers in respect of a commissioner or connected person with the intention of causing a commissioner to exceed the threshold of 20,000 followers. Regarding amendment No. 49, as we discussed regarding amendments Nos. 35, 36 and 41, the Bill will be amended to provide for an online safety commissioner who will be appointed to oversee the making of online safety codes and applying them to designated online services. I am conscious that this will be a demanding role and one that is likely to be controversial. I am worried that the amendment would pose a particular risk for the online safety commissioner, given the role at the forefront of regulating designated online services.
Amendment No. 50, which I will not be accepting, has the same effect as amendments Nos. 44 and 52, which we have discussed.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 24, lines 26 and 27, to delete ", where their aggregate value exceeds €13,000".
Amendment, by leave, withdrawn.
I move amendment No. 48:
In page 24, lines 30 and 31, to delete ", where their aggregate value exceeds €650".
Amendment, by leave, withdrawn.
I move amendment No. 49:
In page 24, between lines 31 and 32, to insert the following:
"(e) has an active personal account on a designated online service with in excess of 20,000 followers or subscribers.".
Amendment, by leave, withdrawn.
I move amendment No. 50:
In page 26, to delete line 6.
I am not sure why this amendment was grouped with the others, because it relates to the local authority issue.
Amendment, by leave, withdrawn.
Amendment No. 51 not moved.
I move amendment No. 52:
In page 27, to delete line 18.
Amendment, by leave, withdrawn.
I move amendment No. 53:
In page 29, between lines 3 and 4, to insert the following:
"(6A) All members of a committee established by the Commission shall, for the avoidance of doubt, be subject to the same requirements to disclose interests under section 37.".
Amendment No. 53 inserts a subsection providing that, for the avoidance of doubt, members of a committee established by the commission shall be subject to the same obligations to declare interests and recuse themselves from certain deliberations under section 37.
This came up in the climate Bill and the change was made in respect of that Bill. There is capacity to take on board persons who are not part of the commission for consultation. It is important that those persons on a sub-committee who may not go through the rigorous process commissioners go through also make a declaration of interest. This is so someone with strong interests in a particular online provider and who may have useful expertise will not find himself or herself part of a sub-committee or delegated function, or linked to the discussion of a delegated function, without declaring an interest. It is a matter of transparency. Amendments quite similar to this were taken on board in the climate Bill.
Under section 19 of the Broadcasting Act 2009, as amended by the Bill, the coimisiún may establish advisory committees to assist and advise it in matters relating to its functions. Amendment No. 53 would have the effect of requiring that members of any advisory committee of the coimisiún be subject to the same requirements to disclose interests under section 37 of the Broadcasting Act, as amended by the Bill, as a commissioner, member of staff at the commission, consultant or adviser. This is a broad obligation that requires the person in question to disclose interests relating to any organisation that may derive a benefit from any matter being considered by the coimisiún and to recuse himself or herself from any discussions or decisions regarding the matter in question. This is a proportionate obligation for a commissioner, member of staff of the commission or consultant or adviser, but it may not be so for members of advisory committees.
Advisory committees may be established by the coimisiún for many purposes, and the membership of such committees may comprise experts, industry representatives or representatives of particular groups, such as children, persons with disabilities and racialised communities. One of the purposes for which a committee may be established would be to provide advice to the coimisiún on its regulatory functions, though I would not wish to prejudge how many or what types of committees may be established. An example could be a committee set up to advise the coimisiún on regulatory matters relating to sound broadcasting services. In that case, it would be appropriate to include representatives of the regulated entities, such as the public service broadcasters and independent radio sector. Similarly, the coimisiún could set up a committee comprising representatives of organisations promoting the rights of persons with disabilities.
Amendment No. 53 would have the effect of precluding these representatives from effectively participating in such advisory committees that the coimisiún may establish as those representatives would have an interest within the meaning of section 37 in the outcome of any discussions at the meetings of those committees and any advice they may provide to the coimisiún. Given the above, I propose to reject the amendment.
Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.
When is it proposed to sit again?
Cuireadh an Seanad ar athló ar 3.30 p.m. go dtí 2 p.m., Dé Céadaoin, an 4 Bealtaine 2022.
The Seanad adjourned at 3.30 p.m. until 2 p.m. on Wednesday, 4 May 2022.
