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Seanad Éireann debate -
Wednesday, 4 May 2022

Vol. 284 No. 10

Online Safety and Media Regulation Bill 2022: Committee Stage (Resumed)

I welcome the Minister of State to the House. I am sure he was welcomed earlier, but not on my watch, as Ronald Reagan might have said.

SECTION 7

I move amendment No. 54:

In page 29, between lines 9 and 10, to insert the following:

“Youth Advisory Panel

19A. (1) The Commission shall, within one year of its establishment, establish a Youth Advisory Panel, in accordance with the provisions of this section.

(2) The Panel shall advise the Commission on issues of interest to children and young people, on online safety, and on any other matters as the Commission may determine.

(3) The Panel shall include representatives of organisations representing children and young people, and at least 40 per cent of the members of the Panel shall be under 30 years of age.”

Cuirim fáilte roimh an Aire Stáit freisin.

This section of the Bill addresses the establishment of committees and sub-committees by the planned media commission. Section 19 sets out the terms of the various committees it is intended to set up. It does not specifically name some of the committees. This amendment and the subsequent amendments seek to require two specific sub-committees or panels to be established. Amendment No. 54 deals with the establishment of a youth advisory panel. Senators Warfield, Carrigy, Cassells and I sat through the deliberations of the Oireachtas Joint Committee on Media, Tourism, Arts, Culture, Sport and the Gaeltacht. We found the engagement with young people, their representatives and the schools very useful. Many of the issues the new media commission will be engaging with will have an impact directly on young people and are of direct concern to young people. Indeed, young people would be to the fore in adapting to new technologies.

Therefore, it is important that a very clear mechanism is found within the legislation to allow the commission to consult with young people and for this to be recognised at a statutory level. We are proposing the establishment of a youth advisory panel with statutory recognition as part of the legislation. It would be one of the standing committees of the commission and would have guaranteed youth representation. Young people would attend to advise on the media codes that are being drawn up on the online safety practices and the programmes of digital media literacy that the media commission will roll out. It does not preclude other forms of consultation with young people by the commission. However, having this statutory committee would be a very useful way of interacting specifically with young people. We would like to see it included so that there is statutory recognition within the legislation for a process of consultation such as this.

I support the proposal. The proposed section 19A(2) states:

The Panel shall advise the Commission on issues of interest to children and young people, on online safety, and on any other matters as the Commission may determine.

That is the priority of this legislation. It is about safeguarding our youth. The best people to tell us where the problems lie are our young people. They are very forceful in doing that. Along with the Minister, Deputy McEntee, I recently met representatives of Comhairle na nÓg in my county and the issue of online safety came to the fore. We need to find a mechanism to engage with our youth and how better to do than to put it into the legislation?

I echo what has been said. The significance of this amendment goes back to engagement we had at the Joint Committee on Media, Tourism, Arts, Culture, Sport and the Gaeltacht during pre-legislative scrutiny.

One of the most impressive engagements we had was when representatives from schools in Dublin and Cork came before the joint committee to address their concerns to us. Their biggest concern was that we, as legislators, did not get what was required in a sphere that was predominantly dominated by their age groups and that we were dictating to them what was best for them to keep them safe. It was an education in itself to hear from them. They recognised the Government was trying to do something positive not only for them but for all people. One of their first points of contact when dealing with such an issue would be with the teachers in the school system and they were concerned teachers were not adept at dealing with the issues at play. That was highly informative. We nearly need to educate teachers about the pressures, dangers and aspects impacting on young people across a range of different areas.

That was replicated in a different discussion when we had a conversation about identity theft that resulted in sexually explicit material being used. When the person concerned went to the Garda as their first point of contact, the gardaí were not adept at dealing with the issues at play. There were a range of areas where those who were the first points of contacts for people were not au fait with what was being dealt with. We have gained insight through engaging with young people. This amendment seeks to ensure that by having representatives of young people on the panel, it would be kept apprised of those issues as they evolve.

I want to speak briefly in support of this amendment. It is not only good practice in this area in terms of the participation of youth in important decisions and decisions in areas that affect them, but it also has a strong practical purpose. Young people identify much earlier than others the new trends and what is happening in society. The Minister of State will be aware a number of our amendments, which we will deal with later, relate not only to harmful content online but harmful conduct online in terms of how vulnerable persons might be targeted by particular microtargeting. A large number of the concerns of civil society about this Bill relate to young people, how they are targeted online, engage online, how their data are used and what kind of messaging is sent to them. However, there is also an empowerment message. This audiovisual directive is also about positive empowerment. The general data protection regulation went some way towards this, the idea of people owning their own data, but similarly the spirit that people should feel empowered to help shape the online spaces, which we share and on which people spend so much of their time.

A practical reason this panel is useful is in addressing other aspects of harmful behaviour. Sadly, some of them only come to light through the courts system through which those with resources can vindicate, track down or pursue an issue to address a concern. Young people often will not be in a position to have the resources to navigate either legally or bureaucratically, or even through political contact or connections in the world, a way to address their concerns. There are not enough routes for young people to raise flags or raise their concerns to highlight issues. It should not fall to individuals or, sadly, as we have seen so often, to families of young people after the fact talking about harmful behaviour or harmful content and how it affected the young person in their lives, sometimes with tragic effect. Something like a youth advisory council is almost an early warning system whereby, separate from individual complaints, and we will discuss the individual complaint mechanism as the Bill evolves and it is crucial to its operation, there is a way for young people to talk, in practical effect, about what is happening, what are the trends and, if there are new regulations, what ways are being found around them.

It is an early warning system, as well as a space for positive ideas for inclusion and empowerment. To my mind, it is an extremely practical idea that would aid and support the work of a new commission.

I thank Senators Malcolm Byrne, Cassells, Carrigy and Higgins for speaking to this amendment. I want to relay the apologies of the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin, who has had a bereavement in her family and cannot be here this evening.

Section 19 of the Broadcasting Act 2009, as inserted by section 7 of the Bill, provides that an coimisiún may establish committees to assist and advise it on matters relating to its functions, or on such other matters as it may determine. The effect of the amendment would be to mandate an coimisiún to establish a committee to advise it on issues of interest to children and young people and online safety.

While the Minister, Deputy Catherine Martin, can see the merit of ensuring that the voice of children and young people is directly heard by an coimisiún in the setting up of a committee, there are some worries about the mandating of an establishment of multiple committees in legislation. This is because, notwithstanding the language used, this tends to fix the subject matter of the committee to a moment in time. What is being suggested now is that we take further reflection on this amendment. While it will not be supported today, we will return to the matter on Report Stage.

I welcome that and I appreciate the concern. However, that is precisely the intention behind the amendment. I worry that if time elapses there may be other reasons that committees are needed. There may be a need to set up a committee on, for instance, how one deals with broadcasting in the metaverse in the future. The core reasons that this commission is being set up are to address the issues of online safety and to ensure there is access to information on digital and media literacy for young people. These are among the core functions, if we return to some of the principles about why this commission is being set up.

We had a debate last week where we talked about specifically mentioning online safety and young people. That is precisely why we want to ensure a specific standing committee with young people’s representatives is set up and is required by statute. If there is a specific committee set up on this, for all the reasons we have outlined, attention will be paid to these issues.

I respect the Minister’s decision to go back and reflect on it. However, I anticipate that when these amendments are being addressed on Report Stage, this concern and many of the other concerns we have expressed previously will also be addressed in the amendments. I expect that there would be a requirement by statute that in some form, and ideally through a youth advisory panel, the commission will have regard to the views and interests of young people.

I will not go to war today with the Government Chief Whip. However, the response that the impact of our amendments would be to mandate the commission is 100% right. That is exactly what we are trying to do.

That is exactly what we are trying to do because that is exactly what is happening elsewhere in the Bill. The Minister is herself cherry-picking. She is picking oranges over there, and just because Senator Malcolm Byrne and I are in here picking apples, it does not seem to suit her.

We had a discussion here last week in which we pointed out that reference was made in the Bill that it should have regard to Government policy on environmental issues, and rightly so. Yet, we tabled an amendment to the Bill to have regard to Government policy on addiction issues, particularly with regard to gambling. This would dovetail with the gambling Bill, which we will table later this year. We asked for regard to be given to the establishment of the gambling commissioner’s office, but it did not seem to suit. Therefore, yes, we are trying to mandate it. I say this because the individualisation of other aspects of Government policy is being mentioned in this Bill.

Much like I said last week, the reflection process that keeps getting referenced in all of the answers during our debate had better be a very deep and meaningful one. I mean that. I was pretty peeved here last week about the response, in particular on the gambling issue. This is a very soft amendment. It is not a hardball amendment. It is a soft amendment. It has regard to the lengthy discussions that took place on Committee Stage. I would hope that the Minister and the Government would have respect for the work that was undertaken for over a year on Committee Stage. It engaged in particular with young people, who wanted to have their voices represented and reflected. I get annoyed when we are being told in the written response that we are trying to mandate something that is clearly happening in other aspects of the Bill. I will not go to war with the Government Chief Whip. I respect the answer that has been given. However, we will be returning to this very fulsomely.

I will be brief. It strikes me that the amendment is already quite reasonably worded. It does not say that there must be a youth advisory panel for all eternity. In the Minister of State’s reply, he mentioned a particular “moment in time”. We are at a particular moment in time when a wide range of new actors are going to be regulated for the first time. In that context, a youth advisory voice is important. The amendment, as I understand it, simply says that within one year of its establishment, the commission would establish the committee. It does not prescribe the issues that the committee would deal with. It talks simply about “issues of interest to children and young people, online safety, and on any other matters as the Commission may determine”. In fact, it is quite widely framed around the areas of examination. There is not an intent to tie down the agenda of the commission fully. It is left quite open. It also does not say that the youth advisory panel would have to continue forever. Rather, it says that it would be important to have a youth advisory panel, or a very close equivalent, in the first couple of years of this commission’s operation and that it should be set up within that first year.

I understand the Minister of State’s concern that sometimes a committee could be put in place and it would still be there in 20 years’ time. However, that is not what this amendment seeks to mandate. It simply says that it needs to happen early. With respect, we heard the lengthy debate. Even the online commissioner is only getting added in now. Unless issues are put in legislation, they can become an afterthought. We do not want in six years’ time for the commission to have to set up a youth advisory panel to let them know how they got it wrong. This is about making sure the commission hits the ground running and makes decisions, policies and regulations that work from the beginning. I think this is constructive. I do not think it overly binds the Government or the commission. We all expect that when we come back on Report Stage, we will be told it is the hope of the Minister that the commission might choose to establish a youth advisory panel. There will need to be something in the legislation that indicates that consultation will be happening, and will be happening early in the lifetime of the commission.

I want to briefly speak in support of my colleagues. I will also support them on Report Stage, if needs be. This is a soft amendment, as it has been said. It is there to enhance the legislation. We should not be in a situation whereby we hope that a commission that has not been appointed yet, and the members of which we do not know, might set up a committee that would take the views of young people on board. It needs to be put into the legislation now.

I thank all of the Senators for what they have said, as well as for their bona fides. I hear what they have said. There was significant pre-legislative scrutiny on the Bill. This particularly impacts on young people and children. The amendments that the Senators have sought to progress is to ensure the centrality of their voice in how policy is iterated and how it is implemented.

In the response I have given, we have referenced the merit of the proposal to set up a committee. As I said, there will be further reflection from the Minister on that on Report Stage. She will revert to the Senators when it reaches Report Stage.

That is the position. The Minister has been clear that she does see merit in this, and she will reflect on it. The Senator has made very fair points on the need to ensure that the voice of young people does dovetail with the work of the commission, which it should, because many young people are at the coalface of this whole area, and it is important that that is reflected in the working of the commission when it is established.

Is Senator Byrne pressing the amendment?

Am I allowed to ask a question of the Minister of State before I answer?

Yes, the Senator can.

I think this is important. We worked in a very collegial way, both in this House and in the committee, and we are being told on many amendments that the Minister will go away and reflect on them. The Minister of State will appreciate this as the Chief Whip. Could we say that if the Minister's reflections do not take on board a lot of the proposed amendments coming forward, it is fair to say that the Government should not necessarily count on the support of all Senators with regard to this?

Much work has gone into a lot of the amendments. This is not a controversial amendment. There are other elements that we can have a heavy debate about. We are now into the fifth hour or more of this debate and, so far, one minor amendment has been accepted. My question is why the Government would not accept this amendment and then on Report Stage if the Minister chooses she can tidy it up or change it and she can bring it back at that Stage. We are accepting the bona fides on Report Stage. I am probably a little calmer, but I understand my colleague's frustration on this. Everyone in this House is acting in a bona fide way. This is a very important issue and we do not think the Government is being fair. I am asking the Minister of State if the Government would accept this amendment and that in accepting it that there would be changes. I am very tempted to push the amendment.

The Minister of State has indicated the position. Is the Senator pressing the amendment? I gather that the Minister of State does not wish to comment further.

No, I have made my point.

I wish to speak in support of the amendment and perhaps give my colleagues some time to consider their approach. As other speakers have said, the section gives the commission power at any time to dissolve a committee. I assume that would apply to this committee as well. A report was launched by the Children's Rights Alliance recently which, among other things, called for a lowering of the voting age to 16. I will read a statement from Tanya Ward of the Children's Rights Alliance:

Ireland has made great strides to step out of the shadows of our past and create a society where children and young people have a voice. However, rights on paper are not enough and what is clear from this report, young people are ready to help shape the future they want to see for themselves and their peers. When they are given the right information and opportunities to do so, as this report demonstrates, they bring valuable insights to the table. Now is the time to give children and young people a true voice in our political system.

This is a very well-worded, sensible amendment. Senator Higgins and I spoke at an event organised by Young Voices some years ago. There are avenues where young people can express their views at local and national levels, but this is just one other option, and it is worthy of the Government's support.

How stands the amendment? Is the Senator pressing the amendment?

I will withdraw the amendment, but I will reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 55 is ruled out of order as a potential charge on the Exchequer.

On a point of order, I must challenge this interpretation. It comes back to the points on amendments being ruled out of order. This amendment is in many ways structurally no different to the previous amendments in that it proposes to specifically require the establishment of one of the sub-committees or committees to deal with broadcasting. In many ways, there is no difference to the proposal in the previous amendment and this one.

I note that Senator Byrne says "in many ways". Could I respond to him?

Yes, but I question why we are allowed to debate the establishment of a youth advisory panel as a sub-committee of the commission but not a specific committee to deal with broadcasting.

The position is that amendment No. 55 would require the commission to establish a broadcasting committee. Establishment of a committee would involve additional expenditure and remuneration for committee members. The amendment must be ruled out of order in accordance with Standing Order 41, as it has the potential to impose-----

The amount of committees I am on-----

Senator Ruane should please not interrupt me. It has the potential to impose a charge on the revenue. I might draw the attention of Senators to section 19(1), which states: "The Commission may establish committees to assist and advise the Commission on matters relating to its functions or on such other matters as the Commission may determine."

I also draw their attention to section 19(8), which states: "There may be paid by the Commission to members of a committee such allowances for expenses (if any) incurred by them as the Commission may, with the consent of the Minister and the Minister for Public Expenditure and Reform, determine." Therefore, it would involve a charge, while the other is a panel, so I am ruling it out of order.

On a point of clarification, a Leas-Chathaoirligh.

If Senators want further clarification, they must get it from the Cathaoirleach's office.

On a point of information and for clarification, a Leas-Chathaoirligh, in terms of consistency, you read that out in respect of amendment No. 55, yet in respect of amendment No. 54, I am sure the young people would have been provided with tea and sandwiches or a Coca-Cola and that would have been a charge on the State as well.

No, that is a panel not a committee. That is not a point of clarification.

It is ludicrous.

It is ludicrous. Last week, Senator Higgins called for a review on the determination, and I totally support her on this because there is no consistency whatsoever on the ruling on the last two amendments we have discussed.

We are only half an hour into the debate-----

In any case, I refer the Senators to the Cathaoirleach's office for further discussion.

We will move on. Amendment No. 56 is in the names of Senator Higgins-----

(Interruptions).

I will not be interrupted further.

All I will say on amendment No. 55 is that in the process of reflection that is going on, I urge that there would also be a requirement in terms of what is brought forward because we specifically want something to deal with broadcasting for fear that it will be lost in the overall area.

I thank Senator Byrne. He has made his point.

Amendment No. 55 not moved.

I move amendment No. 56:

In page 29, line 15, to delete “shall” and substitute “may”.

I will begin by saying-----

We are not going back, we are going forward.

It is relevant because it relates to this section and effectively as well to this amendment which also involves consultancy. You described, a Leas-Chathaoirligh, the intersection of amendment No. 55 with section 19. Again, this does not impose, it gives the power to the commission, with the consent of the Minister to determine costs.

We are discussing amendment No. 56.

The freedom to make that determination and whether there would be costs sits with the commission and with the Minister. This is an issue we need to examine at the Committee on Parliamentary Privileges and Oversight because of the recent inconsistent rulings.

This amendment is very important. It might be inadvertent in its wording because the way it is phrased at the moment is that the commission may hire a consultant or specialist to look at a particular area, but then it says, "The Commission shall have regard to the advice of any consultant or adviser engaged under this section". In fact, when we talk about unduly tying the hands of the commission, we are creating a situation whereby a consultant who might be hired could effectively be in a position where he or she is inappropriately determining or shaping the policy of the commission. My amendment simply says "may have regard to the advice of any consultant or adviser engaged under this section".

Since we are dealing with specialist areas, there will be situations involving the training of algorithms, the operation of particular online platforms, recommender systems for which videos get proposed next and those within the industry where the commission will seek to ask a number of consultants or advisers who are linked with, or have previously been linked with, the industry to make recommendations. It has to be at the discretion of the commission to determine the extent to which that advice is taken on board. Otherwise, consultants that have one contract with the commission and multiple more lucrative contracts with others are in a position where their advice or recommendations "shall" be strongly considered by the commission. The commission "shall" have regard to it. That is too onerous. "May" is contained in a number of places in the Bill where I believe "shall" should be inserted because the latter carries more weight. There is a reason that we have sought "shall" in respect of certain actions instead of "may". For that reason, it is appropriate in this case that, instead of a situation where the commission "shall have regard to the advice of any consultant or adviser engaged under this section", it "may" have regard to that advice. These are not members of the commission, but specific consultants who may be taken on and there will be instances - it will not always be the case - where they may produce advice that is inappropriate or seems to be overly determined by other contracts that they hold. I wish to ensure that, in such circumstances, the commission retains the discretion to disregard that advice, if it so wishes.

I understand the intention of the Senator's amendment. It rests on the question of whether the phrase "shall have regard to" should be interpreted as requiring the commission to follow whatever advice is given unless there is a compelling case not to. The legal advice that the Minister has received regarding this phraseology is that, where a public body shall have regard to a thing, it may depart from that focus and other such considerations where it has a bona fide reason to do so. As such, an coimisiún is not bound by advice given under this provision. Instead, it is obligated to give it due consideration.

The purpose of this provision is to ensure that an coimisiún does not engage consultants and advisers without the intention of paying heed to their advice. This is prudent, given that an coimisiún will be paying for such advice and commissioning it on the basis of the particular expertise required to inform its decision making. In this light, we are not accepting the amendment.

How stands the amendment?

I am going to reflect on the Minister of State's response. I am not fully convinced. I can see scenarios where I would be disappointed that advice was not properly considered, but I can also see scenarios where what we have sometimes seen-----

Are you withdrawing the amendment?

I am considering as I speak. Certain consultant bodies manage time and again to have disproportionate influence on the actions of public bodies. I am going to withdraw the amendment for now and reserve the right to reintroduce it. I may look for that explanation or opinion in writing from the Department. It would be useful.

The Senator has the right to reintroduce the amendment on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 57, 58 and 60 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 57:

In page 29, to delete lines 32 to 40, and in page 30, to delete lines 1 and 2.

These amendments relate to the power to impose levies. Within this legislation, two forms of levy are discussed but they are not given different titles, per se. They are both referred to as "the levy" or "levy order". A number of restrictions are placed in respect of the levies under this section, yet there are other levies relating to European works, for example, and I am not satisfied that there is enough clarity that the constraints on the commission's power to impose levies will not have a leakage effect as regards the European works levies. I am giving them different titles, which is not the case in the Bill. They are simply referred to as "the levy".

The proposed section 21 envisages the making of "an order imposing a levy" that is designed to meet the expenses of the commission's operation. The later levies under the proposed section 159E are in respect of European works, but section 21 contains a framework of subsections and language that essentially says that any levy in excess of the operations of the commission should be returned and should not represent more than a certain proportion of the commission's operational costs.

I will go through the amendments in order. Regarding amendments Nos. 57 and 58, the Bill reads:

In calculating the amount of a levy under any paragraph of subsection (1) in respect of a levy period, the Commission--

(a) shall consider the Commission’s expenses in that period in performing functions ...

(b) shall seek to ensure that the total amount imposed by way of levy under that paragraph in respect of that period, represents a corresponding proportion of the total amount imposed by way of levy under this section in respect of that period."

The commission calculates its expenses and then ensures that the total amount of the levy represents a proportion of those operational costs.

I have taken a few different approaches in the later amendments. Regarding amendment No. 60, the Bill reads:

(11) Any surplus of income, from levies imposed in respect of a levy period, over the expenses properly incurred by the Commission in that period and its working capital requirements in that period shall either--

(a) be retained by the Commission to be offset proportionately against subsequent levy obligations of the providers on whom the levy was imposed, or

(b) be refunded proportionately to those providers.

This subsection is of concern. There are some caveats to the earlier provisions, which refer to a levy's mandate under a particular subsection. However, this subsection just refers to levy orders and the surplus of income from levies. There is nothing wrong with any of that in itself, but I am concerned by its potential implications for section 159E. Importantly, there is the possibility that the commission may make a levy order on service providers that will be used to fund European works. In later amendments, we will deal with the kinds of work involved. The levy order sets out the methods of calculation, periods involved, records, exemptions and so forth, but I am concerned that the constraints on levies in section 21 could muddy some of the planning of a levy under section 159E.

I have suggested a few removals and insertions to address the issue. In one place, I propose: "For the avoidance of doubt, this section shall not apply to levies issued under section 159E of the Principal Act and nothing in this section shall be construed as limiting such powers."

I also have a corresponding equivalent amendment to insert into section 159E, but again, it is simply a clarification. There are a few of the paragraphs within that section on levies, however, where it is not clear they are only speaking to the levies on the operation of the commission. Perhaps the Minister of State could address that or some way could be found to clarify it. As I said, I will put forward one proposal in terms of clarifying it but I am very happy if the Government has its own proposals in that manner.

I thank Senator Higgins. I understand the purpose of amendment No. 60 is to ensure there is sufficient distinction between the levy under the new section 21 of the Broadcasting Act 2009, as inserted by section 7 of the Bill, which will be used to meet the expenses of the commission incurred in the course of discharging its regulatory functions set out in the Bill in the Broadcasting Act 2009, and the levy made under section 159E, as inserted by section 53 of the Bill, which will be used to fund any content production scheme established under section 159F.

On the basis of my Department's engagement with the Office of the Attorney General, I believe there is sufficient distinction already provided through the legislation between the two levies, which is achieved in particular through the wording of sections 21(12) and 159E(8), which, when read together, clearly delineate where the Bill is referring to the industry levy or content production levy.

The effect of amendments Nos. 57 and 58 would appear to be to remove the obligation on the commission to have regard to its expenses incurred in a given period when imposing the industry levy. This could lead to the commission being unable to levy a higher amount from the industry than is needed to meet its operating costs. This would be against the intention of the Bill to require regulated entities to fund the cost of their regulation. The purpose of regulation as a general principle is to mitigate the negative impacts caused by these businesses as a matter of supporting the public good. Providing an coimisiún with unlimited revenue raising powers would not encourage efficiency and effectiveness in pursuit of this principle. The new section 21(11) of the Broadcasting Act 2009, as inserted by section 7 of the Bill, would still provide that any surplus would in any case be rolled into subsequent years to be offset against future levies or refunded to any providers levied. This is in congress with the proposed amendment, which would lead to a lacuna in the legislation. Accordingly, we do not propose to accept any of these amendments.

I am a little concerned by that because I am looking to the language in subsections (1) and (2) referred to in section 21(12). All that subsection (1) says is that:

(1) The Commission may make an order (a ‘levy order’) imposing a levy on any of the following:

(a) providers of audiovisual media services;

(b) providers of sound broadcasting services;

(c) providers of designated online services.

All that subsection (2) says is that "A levy order shall specify the period in respect of which a levy is imposed". I do not see how that safeguards anything. That is, in fact, quite wide. It simply says a levy order relates to these kinds of actors, which are the actors covered by the Bill - that is nothing - and that a levy period is the period when the levy is imposed.

I do not, therefore, see how that is any insurance in terms of the concern I have about the levies in respect of European works. I am concerned because, in fact, it is not the goal that the commission should only be making levies in respect of its operation. As I understand it, the audiovisual directive also empowers a proactive making of levies on audiovisual media services and similar bodies that can then be channelled towards the production of European works. Again, that is part of that obligation in terms of diversity of content and diversity of voice within our audiovisual landscape.

It certainly should not be the case that any scheme in relation to European works is simply a kind of small subfunction of the commission's operation. It is, in fact, a power that goes beyond operational costs. It is something that represents instead a proactive role. As the Minister of State described it, again, that is the part that is getting focused on. I have not heard something that addresses my concern in terms of really being assured this commission will be able, for example, to say it wishes to put a 2% or 5% levy or whatever it might be on audiovisual services which it wants to be channelled into all of those more diverse forms of cultural participation and product such as are set out in the scheme for European works under section 159F.

I would accept that subsection (5) has some caveats in terms of "calculating the amount of a levy under any paragraph of subsection (1)". Subsection (5) has some caveats but, say, something like subsection (11) around the surplus of income and subsections (1) and (2), which were referred to by the Attorney General, do not distinguish that the constraints in this section shall apply only in respect of the operational costs and levies in terms of operational costs. I have not heard, in fact, an argument as to how these will not constrain levies in respect of the European works. I listened, and apologies if there is something I missed in the answer, but the answer as I heard it, however, kind of looped around itself in that it referred right back to this section.

As I said, I see some language in subsection (5) that seems potentially useful in terms of constraint, but again, the provisions in terms of subsection (11) simply just say a "levy period". The levy period is simply the period in which a levy is imposed. It does not say a levy in respect of the workings of the commission or a levy in respect of operations. I am sorry to labour this but I am excited about the positive potential of this legislation as well as the protective and promotional role. I just do not see it. Again, perhaps I need to have it outlined clearly to me.

I thank Senator Higgins. I will say again that this has been reviewed by the Office of the Attorney General and our legal advice is there is sufficient distinction as currently drafted. The levy to fund the expenses of an coimisiún and a levy to fund the content are in two completely different sections of the Bill. The levy to fund the expenses is in section 21 and the levy to fund the content is in section 159E(8).

In that case, I ask if the Minister of State might consider the amendment I have tabled. If that is the intent, why not include the amendment that simply clarifies that nothing in section 21 should be seen to affect section 159E. If that is the intent, there is no harm in putting that in. It would certainly be clear to me.

That is a question for the Minister of State.

Again, I have amendments that are deletions. I also have this amendment, which is simply to add a clarification. Is there any argument not to include that clarification? Besides saying they are different, there is nothing in the Bill that says they are different.

As I said, they are in two completely different sections. It has been fully reviewed. The legal advice and legal interpretation of the sections as drafted is that there is sufficient distinction presently and there is not a requirement to insert the amendments the Senator has proposed.

I thank the Minister of State. We have reached decision time. Does Senator Higgins wish to press amendment No. 57?

Amendment, by leave, withdrawn.

I move amendment No. 58:

In page 29, to delete lines 39 and 40, and in page 30, to delete lines 1 and 2.

Amendment, by leave, withdrawn.
Amendment No. 59 not moved.

I move amendment No. 60:

In page 31, between lines 7 and 8, to insert the following:

“(12A) For the avoidance of doubt, this section shall not apply to levies issued under section 159E of the Principal Act and nothing in this section shall be construed as limiting such powers.”.

Amendment put:
The Committee divided: Tá, 10; Níl, 26.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Clonan, Tom.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Ruane, Lynn.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Davitt, Aidan.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Gallagher, Robbie.
  • Garvey, Róisín.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Keogan, Sharon.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • McGahon, John.
  • Murphy, Eugene.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
Tellers: Tá, Senators Alice-Mary Higgins and Lynn Ruane; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.

I welcome the Minister of State, Deputy Chambers, back to the House. Amendments Nos. 61 to 64, inclusive, are related and may be discussed together by agreement.

I move amendment No. 61:

In page 31, lines 28 and 29, to delete “(including money in a currency other than the currency of the State)”.

This amendment relates to the power to borrow and is a response to a concern about a provision on page 31 of the Bill that allows for the commission to borrow money, including money in a currency other than the currency of the State, for the purposes of performing its functions. It is an area of some concern. We believe that, where the commission borrows such moneys, it would be best practice for it to do so in the currency of the State. There is another specific concern here, to which our subsequent amendment No. 63 relates. That amendment proposes that "The Commission may only borrow money from a financial institution authorised by the Central Bank of Ireland to operate in the State."

The concerns here relate to specifying the currency. That is a particular concern because we have seen the creep of cryptocurrency and increasing attempts to give it a central role and to have it be used, crafted and shaped as a legitimate currency for operations. There are attempts to have crypto assets treated as assets and some want financial or investment portfolios that contain crypto assets or cryptocurrency to become part of our financial infrastructure. That is a really troubling trend. I was not only thinking of cryptocurrency in proposing this amendment but it was at the back of my mind given the areas it is planned to regulate through the operations of the commission.

Amendment No. 61 removes the capacity to borrow in a currency other than the currency of the State, which would be better practice. Amendment No. 63 requires that money be borrowed only from "a financial institution authorised by the Central Bank of Ireland to operate in the State." I recognise that amendment No. 63 may be seen as overly onerous and I would be happy not to press that amendment as it should probably refer to institutions within the European Union instead. Again, the core point of this amendment relates to the concern that we are seeing people seeking to use currencies not regulated by central banks in Ireland or elsewhere in respect of financial transactions.

I am afraid I have some problems with a number of these amendments. The Senator touched on some of these herself. I have no problem with the oversight aspect but I believe the Senator is being overly prescriptive. I can foresee circumstances in which it would be required to borrow in dollars or another currency, particularly given the nature of the business the media commission is to be in. I do not want to get into a debate on the Central Bank and its granting of licences and so on because that is entirely different debate. I have spoken here before about it being overly prescriptive. However, there may be circumstances in which it makes more sense to borrow from a financial institution regulated elsewhere within the European Union. I will not get into a debate on cryptocurrency, although we can have that discussion when we move into an era of digital currency.

The Senators are being overly prescriptive in terms of some of the requirements here. I would certainly expect an agency of State to follow best practice in the context of its borrowing practices. I do not have a problem with oversight provisions being written into the Bill but these amendments are overly prescriptive, as the Senators have acknowledged.

Amendment No. 64 is really about financial independence. The Bill provides that the Minister may advance moneys to the commission, provided by the Oireachtas, and with the consent of the Minister for Public Expenditure and Reform. The Bill does not specify whether any such advancements will be subject to the oversight or approval of both Houses of the Oireachtas, as we see in other legislation relating to State bodies like IHREC, for example. It is not appropriate that the commission would be funded at the discretion of the Government and this amendment seeks to provide an important check and balance in the legislation. The amendment provides that financial advancements to the commission from the Oireachtas would be subject to the independent oversight and approval of both Houses.

In terms of financial independence, it is significant to note that head 40 provides the media commission with the power to impose a levy on regulated entities and further, that head 26 provides that the commission chair would be the Accounting Officer. However, in order to strengthen financial independence, it is submitted that the media commission's grant for budgetary allocation should be subject to a separate vote in the Oireachtas, which is what this amendment seeks to do.

I thank the Senators for their amendments regarding the powers of an coimisiún. Amendment No. 61 would delete a reference specifying that an coimisiún can borrow in a currency other than the currency of the State but this is a standard provision for State bodies. Accordingly, I do not propose to change the drafting approach taken to avoid any unintended consequences.

Similarly, amendment No. 62 represents a departure from the standard provisions regarding the authorisation of borrowing by State bodies. It is right that bodies require not only the approval of the relevant Minister but also the consent of the Ministers for Public Expenditure and Reform, and Finance. The consent provisions are necessary because any borrowing by State bodies such as the commission will add to our general Government debt and affect our compliance with EU fiscal rules. While I am, as a principle, usually in favour of more Oireachtas oversight, I believe that public bodies should be accountable to the Oireachtas rather than being subject to prior authorisation by the Oireachtas for each decision they take. This amendment cannot be accepted because it would be a departure from the standard practice, with the Minister for Public Expenditure and Reform and the Minister for Finance being required to consult and seek the views of the relevant Oireachtas joint committee for a matter of this nature. There are sufficient safeguards in the Bill's provisions to mitigate the risk of any excessive borrowings by the commission. There are also practical considerations such as the fact that committees fall on the dissolution of the Dáil and might, therefore, not be available in the event of urgent matters needing to be resolved.

Amendment No. 63 requires that the commission may borrow only from institutions authorised by the Central Bank. This amendment would appear to be at variance with EU law. Under EU directive 2013/36/EU, financial institutions authorised in other member states of the EEA may carry on business in the State without receiving further authorisation from the Central Bank.

I also have concerns regarding both the practical implications and the EU law implications of amendment No. 64. The issuance of broadcasting contracts is a core part of the means by which the commission will regulate broadcasting services such as linear television services. In requiring the commission to seek the approval of the Oireachtas regarding matters pertaining to the awarding of broadcasting contracts, this amendment would appear to be contrary to the provisions of Article 30 of the audiovisual media services directive, which provides that member states shall ensure that regulatory bodies are functioning independently of their respective governments or of any other public or private body. In addition to this, requiring Oireachtas approval for every deposit made by an applicant for a broadcasting contract with an coimisiún would be both impractical and cumbersome. At present and in most instances, the Broadcasting Authority of Ireland requires deposits to be made when an applicant for a broadcasting contract submits a statement of intent to the authority in respect of an open licensing period being run by the authority. The sums of money involved are small and the process is designed to encourage quality in submissions to the authority and to avoid frivolous submissions. Accordingly, we do not propose to accept these amendments.

As I will not be able to speak on the other amendments in this group after I make my decision on No. 61, I would like to respond quickly to the Minister of State, if I may. I accept the point he makes in respect of amendment No. 63. His analysis is fair and I realised that as he spoke. The thrust of the other amendments was about trying not to erode the independence of the commission but to preserve it. Many of these amendments were taken from legislation in respect of IHREC, in terms of the idea of having a separate strand. The goal had been to ensure independence from the Government rather than the contrary but I accept that they may need revision.

I intend to return to amendment No. 61 because we are entering an era of digital currency. We may well be in a period of time where there is much more digital use of existing currencies and transfers. To be frank, coming from an environmental and energy perspective, we simply cannot ignore this. We have seen the impacts of cryptocurrency in places like Kazakhstan. Ireland is gearing up to have large-scale data centres. I know from sitting on the Joint Oireachtas Committees on Finance, and Environment and Climate Action that there are those who would like to see Ireland becoming a hub in respect of things like cryptocurrencies but that comes with extraordinary levels of risk. In that context, I reserve the right to submit amendments on Report Stage in respect of the engagement that the commission may have with cryptocurrencies because this is an area in which we need to be very vigilant and take our responsibilities as regulators and leaders very seriously. However, I will not press amendment No. 61 at this time.

Amendment, by leave, withdrawn.

I move amendment No. 62:

In page 31, between lines 32 and 33, to insert the following:

“(2) Before giving their consent, the Minister for Public Expenditure and Reform and the Minister for Finance shall consult with and seek the views of the Joint Oireachtas Committee on Finance, Public Expenditure and Reform and Taoiseach.”.

Amendment, by leave, withdrawn.
Amendment No. 63 not moved.

I move amendment No. 64:

In page 31, between lines 36 and 37, to insert the following:

“(1A) Any such financial advancements will be subject to the oversight and approval of both Houses of the Oireachtas, prior to their being advanced to the Commission.”.

I am struggling to understand the Minister of State's response in relation to broadcasting contracts. Would the commission not be given-----

The amendment has already been discussed so at this stage, the Senator can either-----

This is Committee Stage so I can come back in on the Minister of State's response.

You can speak to the section but you cannot speak to amendment No. 64 at this stage. You can decide what you want to do with it but you cannot discuss it because amendments Nos. 61 to 64, inclusive, were discussed as a block already.

Usually proposers can come back in on their amendments when the Minister or Minister of State has given a response on Committee Stage. This is not Report Stage. The first three amendments in the group are Senator Higgins's amendments. My name is first on amendment No. 64. We have dealt with Senator Higgins's three amendments and mine is next. I had to wait until we reached it-----

Are you responding to the Minister of State's response?

Perhaps there is a misunderstanding on my part here. I am not suggesting that the Oireachtas has to oversee every single decision that the commission makes about expenditure on broadcasting contracts and so on. The amendment relates to advancements and yearly budgets. Maybe there is a misunderstanding on my behalf but I am not really following the response from the Minister of State. He said the amendment sought to ensure that the Oireachtas would have oversight of every single budgetary decision that the commission would make but I am not suggesting that the Department of Public Expenditure and Reform would be making decisions on every single broadcasting contract, for example. I am confused as to the relationship there. At this point, I will withdraw the amendment but reserve the right to come back on Report Stage. I would like some further clarification of the Minister of State's explanation because I do not understand it.

I will let the Minister of State respond to that.

Amendment No. 64 seeks to amend section 25 which relates to deposits and charges for services which may be required by the commission.

In requiring the commission to seek the approval of the Oireachtas, this amendment would, first of all and as I said earlier, be contrary to Article 30, which provides that member states shall ensure regulatory bodies are functioning independently of their respective governments or of any other public or private body. That is the first issue. By amending section 25 and then requiring Oireachtas approval for every deposit by an applicant for a broadcasting contract would be both impractical and cumbersome. I have already outlined the position regarding the Broadcasting Authority of Ireland relating to contracts. That is the position.

I will look at the amendment in relation to its intention and perhaps its placement within the Bill. When you look at the Irish Human Rights and Equality Commission, IHREC, I am sure it has to seek contracts in other ways for other things, but yet it seems to have the complete opposite of what is being suggested.

Amendment, by leave, withdrawn.

Amendments Nos. 65 to 69, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 65:

In page 34, line 42, after “Minister” to insert “and the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media”.

Amendment No. 65 amends section 29(1). It provides that when preparing a strategy statement, as well as submitting it to the Minister, the commission would also share it with the Oireachtas Joint Committee on Tourism, Culture, Arts, Sport and Media.

Amendment No. 66 inserts a new subsection. Again, these are core things when setting out the strategy. These are not day-to-day but rather three-year strategy periods and broad strategy statements for three-year periods. This amendment provides that when preparing these strategy statements, the commission would consult the Irish Human Rights and Equality Commission, the Data Protection Commission, the Oireachtas Joint Committee on Tourism, Culture, Arts, Sport and Media, Screen Ireland, which is an important voice in this respect, and any other persons or bodies the commission considers appropriate. In setting out its strategy for each three-year period, each of these bodies has a very specific expertise that is of value and of use to the commission in its work.

Due to the fact there is a remit of equality and human rights and a specific remit in terms of inclusion and participation for the media commission, the Irish Human Rights and Equality Commission obviously offers a useful input in that regard. Due to the fact there are provisions in its operation that relate to areas of data protection, data management and privacy, the Data Protection Commission has an expertise. For example, we know that one of the areas that is being much discussed in terms of harmful conduct and content is how special categories of personal data are used to create microprofiles and enable microtargeting.

The Oireachtas Joint Committee on Tourism, Culture, Arts, Sport and Media also has a particular role. Regarding this amendment, I am open to having the committee mentioned separately because I am conscious the others in this list are public bodies. Therefore, if it is felt appropriate to accept those bodies but not the joint committee, I am happy to put forward a revised version of this amendment on Report Stage.

Screen Ireland is something that will represent the audiovisual sector in terms of that kind of positive content role, which is part of the role of the new media commission and part of the remit of the audiovisual directive. It would help to address the issue of Irish-related content and generate assurance that we have a plurality and diversity of content represented in our online media provider spaces. Each of those would add something very concrete to the development of strategy, and none of them is prescriptive or requires sign-off. It simply requires and suggests the commission would consult them.

Amendment No. 67 is an alternative to amendment No. 65. It just words it in a slightly separate way to say that when preparing the strategy statement, it should consult the Oireachtas Joint Committee on Tourism, Culture, Arts, Sport and Media. It may be that I may submit in future iterations a version of amendment No. 66 that does not include the committee and lists the committee in a separate amendment.

The Bill at the moment allows for the commission to consult persons under subsection (4). Amendment No. 68 simply states that where it consults such persons as it considers appropriate, a record of such consultation should be kept, deposited with the Minister and laid before both Houses of the Oireachtas. The key point here in terms is not so much where they should be deposited or laid but that the record should be kept. For example, if the commission is engaging in consultation with large online media service providers in the development of a strategy, it would be very important that there would be a record of that. If one of the major media companies that may be affected by the regulations in the strategy has a meeting with the commission around the development of the strategy, it would of course be very important that would be recorded. Again, this is addressing some of the concerns there have been. There is a perception of very big and wealthy media actors and online media actors being in a position where they have had quite a high level of access and meeting in terms of political decision-making. It would be very important it would be clear exactly what their engagement might be in relation to the commission’s strategy and actions.

I apologise for being quite lengthy. My last amendment in this grouping is amendment No. 69. I suggest a slightly different wording because, as it stands, the Bill reads, in relation to the commission's operations, that, “The Commission shall, in preparing each strategy statement and each work programme, have regard to the need to ensure the most economical and efficient use of its resources.” I am worried this directs the commission towards a minimalist approach. “The most economical and efficient use of its resources” could direct it towards a position whereby a light-touch regulation approach becomes the most economical and efficient way to approach an issue. What might be "economical" and might even be “efficient” in the classic sense of the word , that it is quicker and shorter, is not necessarily the most effective. They are different things. Efficiency and effectiveness are not the exact same thing. The absolute priority of the commission, surely, in its operation and strategies should be that it is effective. I am concerned that “efficiency”, in terms of minimising what it does, and “economy”, in terms of spending as little as possible, could lead to a commission that only does the absolute minimum rather than that ambitious role we hope it will play. We have seen that the under-resourcing of the Data Protection Commission had very negative impacts in terms of Ireland reputationally. Similarly, if we have a minimalist approach to the operation of a new media commission, where Ireland will be one of the major regulators, that will also reflect very poorly on us and will have consequences down the line.

I suggest the wording “sustainable and efficient use of its resources, while ensuring that such resources are directed towards maximum social and cultural benefit to the public”. However, I am happy to come back with another single-word amendment to add the word “effective”. Perhaps my version of amendment No. 69 might be a little bit too visionary around what we would hope for around this maximum cultural and social benefit to the public. I am conscious that is quite interpretable. Perhaps I will bring in an amendment on Report Stage that simply says “economic, efficient and effective”, or perhaps, the Government may bring such an amendment.

I note amendments Nos. 65 and 67 where they specifically reference reports and discussions with the Oireachtas joint committee. That is very important. Senators Malcolm Byrne and Warfield and I were on that committee. We spent a significant number of months discussing with all of these companies.

There is an expertise within the committee. There is merit in going back to the committee when these discussions are taking place rather than meetings taking place with any of these big companies at the commission. The Oireachtas joint committee is the place where these companies should be met so that it is on the public record.

I thank Senator Higgins for her amendments in regard to the application in the Bill for an coimisiún to produce a statement of strategy. I recognise the intention of amendment No. 65. Section 29(3) of the Broadcasting Act 2009 currently provides that the Broadcasting Authority of Ireland shall present a copy of the strategy statement to the Minister and to such committees of either or both Houses of the Oireachtas as the Minister may, from time to time, direct. I propose that the language could be introduced on Report Stage to achieve the intended affect of the Senator’s amendment. As the names of Oireachtas committees tend to change following general elections, it is not best practice to use the current names of committees in such references, but instead to refer to the committee whose functions relate to the functions of the Act in question. This is provided for in the Bill by way of an amendment to the definition of Oireachtas joint committee in the 2009 Act. I would be concerned that amendments Nos. 66 and 67 would unduly circumscribe the independence of the commission in determining whom it should consult when preparing the statement of strategy. I believe it is sufficient to allow an coimisiún to determine the effective mode of consultation and the number of consultees. For that reason, the Minister will not be accepting amendments Nos. 66 and 67.

I do not see the value of the proposed approach in amendment No. 68. We are not proposing to accept it. It is not usual practice to lay internal records of processes and activities of public bodies before the Oireachtas nor for the Oireachtas Library services to store such materials.

The Minister, Deputy Catherine Martin, will not be accepting amendment No. 69. The language used in the Bill, which requires the commission to have regard to the need to ensure the most economical and efficient use of its resources, is appropriate. The language reflects long-standing principles with regard to the importance of value for money in the use of resources and can be found for example in the Comptroller and Auditor General (Amendment) Act 1993. Further to this, an coimisiún is already obliged in section 7 of the 2009 Act, as inserted by section 3 of this Bill, to exercise its functions which exist for the purpose of the public good to further support, promote and safeguard the public good.

Senator Higgins moved amendment No. 65. This is the first amendment and I am dealing with that.

Yes, I have moved amendment No. 65. However, I am still speaking to it.

The Senator may continue to do so.

On amendment No. 65, I understand, accept and welcome that the intention is to ensure language in terms of relevant committees will be inserted by a Government amendment on Report Stage. I accept that the title of the relevant committee may change at a certain point. However, it is important that there would be that parliamentary oversight or engagement in terms of the strategy and not solely Executive or Government engagement. I welcome the fact that there would be engagement with the relevant committees.

In regard to the issue of IHREC, the Data Protection Commission and others, as this Bill moves towards Report Stage the human rights and equality duty will be really important. We had other amendments in regard to this earlier. We had some indication that the Minister was looking to them. The duty which all public bodies have in regard to human rights and equality is somewhat greater in the case of this body. It must not simply be a minimalist approach. I believe it should be very liberally interpreted. All public bodies have an obligation to promote human rights and equality actively, but this commission has more than that - coming from the audiovisual directive, it also has a specific charge in relation to inclusion, equality and participation. Those are core policy goals of the audiovisual directives which this legislation is supposed to be transposing and giving effect to in Irish law. It may not be in this section, but it is important that there is a really specific acknowledgement of that area of human rights and equality and the goals and obligations in that respect. We discussed that earlier in regard to certain other aspects of the operation of the commission. I may bring another amendment which simply reaffirms that those matters must be given due regard in the development of the strategy, separate from the question of with whom it consults in regard to those obligations. Thematically, those are core points.

In regard to amendment No. 68, the key issue is not simply the laying before both Houses of the Oireachtas. That can go by the wayside. The extremely important point is that a record would be kept. I note that we have had similar amendments put forward in regard to a number of areas of the Government’s operation, including in regard to planning, climate legislation and other areas where we have simply required that a record would be kept in regard to consultations. That is an absolute minimum in terms of transparency. We know that the decisions that the media commission in Ireland makes will have extremely significant ramifications for extraordinarily wealthy companies which have massive lobbying architecture. We need to be frank about that. There is no point in acting as though that is by the by. That is the reality. In that context for the public, not just in Ireland but also across the European Union, where in many cases regulatory decisions made in Ireland will have an impact, it is really important that there is clear transparency in regard to whom the commission meets with. That does not impact on its independence but it does mean it will be doing its job in a way that is properly accountable. The question of laying something before both Houses of the Oireachtas or depositing it with them can be left by the wayside, but the core point is that records must be kept in regard to with whom the commission meets when developing its strategy. I will be come back to this and press for it quite strongly on Report Stage. I hope that the Government may bring its own amendments.

I accept that the language in regard to the public good is there at the beginning, but the public good can be delivered in a minimalist or a maximalist way. It is not always sufficient to refer to “the most economical and efficient use of resources”. The question of the most economical, efficient and effective use of resources is a core one. If the commission wishes to explore a potential new area of regulation - for example, if a practice that is developing gets flagged by a youth panel as something to be followed up and investigated further - we do not want to indicate that it is effectively tied by telling it that it needs to be as economical as possible by doing the minimum and keeping its margins narrow. There is a danger in how it is framed at the moment. I accept that the Minister might not want to accept my wording in amendment No. 69. I am not going to press that. However I would ask that the phrasing in section 29(8) be re-examined, that the potential risks of the "economical and efficient" phrasing be looked at and that a phrase such as “economical, efficient and effective” be addressed. Similar changes have been made in other legislation.

Amendment, by leave, withdrawn.

I move amendment No. 66:

In page 35, to delete lines 15 and 16 and substitute the following:

"(3) When preparing a strategy statement, the Commission shall consult with—

(a) the Irish Human Rights and Equality Commission,

(b) the Data Protection Commission,

(c) the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media,

(d) Screen Ireland, and

(e) such other persons or bodies, the Commission considers appropriate.".

Amendment, by leave, withdrawn.

I move amendment No. 67:

In page 35, between lines 18 and 19, to insert the following:

"(4A) When preparing a strategy statement, the Commission shall consult with the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media.".

Amendment, by leave, withdrawn.

I move amendment No. 68:

In page 35, between lines 18 and 19, to insert the following:

"(4A) A record of such consultations described in subsection (4) shall be kept and deposited with the Minister and laid before both Houses the Oireachtas.".

Amendment, by leave, withdrawn.

I move amendment No. 69:

In page 35, to delete lines 38 and 39 and substitute the following:

"work programme, have regard to the need to ensure the most sustainable and efficient use of its resources, while ensuring that such resources are directed towards maximum social and cultural benefit to the public.".

Amendment, by leave, withdrawn.

Amendments Nos. 70 and 71 are related and may be discussed together.

I move amendment No. 70:

In page 36, line 16, after "any" to insert "appropriate".

I propose to withdraw this amendment, but I may return to the issue on Report Stage. May I speak to the other amendment in the group?

Amendments Nos. 70 and 71 are being taken together. The Senator has already indicated that she intends to withdraw amendment No. 70.

I indicated that that is my intention, but I want to speak to amendment No. 71.

The Senator has indicated that she proposes to speak to amendments Nos. 70 and 71, but that she proposes to withdraw amendment No. 70.

I have queried the procedure where I propose to withdraw amendment No. 70.

Amendment No. 71 provides that where there are consultations, a record would be kept and that such record would include the rationale by which the commission deemed the person to be appropriate to consult with. Here, again, I have used the language that such record should be deposited with the Minister and laid before both Houses of the Oireachtas. I would appreciate it if in his reply the Minister of State would focus not on the piece that the record be deposited with the Minister and laid before both Houses of the Oireachtas but on the core issue. The Minister of State did not respond in regard to the core issue in my previous set of amendments, the core issue being the principle that a record of consultation should be kept and that such a record would include the rationale whereby a commission decided that a person should be consulted with.

I welcome to the Visitors Gallery our colleague, Senator Crowe, who for the first time since he was elected is accompanied here by his mother, Breda, his uncle, Pat McMahon and Pat's daughter, Yvonne. You are all very welcome to Leinster House. I am sure but for Covid-19 they would have been here a long time ago, but better late than never. You are very welcome. I hope you enjoy your evening. I am sure all Members of the House share in that welcome to you all. Enjoy your day.

I echo the welcome to the visitors. I, too, was born in County Galway. The visitors are well represented by Senator Crowe. They are very welcome to Leinster House.

I thank Senator Higgins for the amendments. I will not be accepting amendment No. 71. The purpose of section 30 is to provide legislative underpinning for the Minister to direct an coimisiún to provide observations on legislative proposals, to undertake a review of the operation or intended operation of an enactment or to make a proposal of its own volition regarding a legislative measure. This will be a useful provision in light of the type of future legislation that may be required to take account of societal or technological changes as it would enable an coimisiún to be proactive and to make timely observations and proposals to Ministers. In this context, the Minister, Deputy Catherine Martin, does not believe there is a requirement to lay records of consultations undertaken with any person to comply with a ministerial direction to provide observations. It is not usual practice to lay internal records of the processes and activities of public bodies before the Oireachtas or for the Oireachtas Library to store such materials.

I would like clarification. A similar answer was given in terms of the earlier piece when the focus was laid on the phrase "laid before the Houses of the Oireachtas". I have made it clear that that is not the core point. Does the Minister agree that records in regard to with whom the commission consults should be kept? I am speaking about those with whom the commission consults in the general sense and also specifically with whom it is consulting in regard to the advice it may give in regard to legislation which will potentially have a significant impact. The question of whether those records are laid and who they might be laid before is only one part of it. The core issue here is the principle that records of consultations should be kept and that there should be a note in that regard.

I do not like to name companies and I do not want to do so in respect of the Chamber, but there are companies who we know may have a very strong interest in regard to legislation that may come through Ireland and on which a Minister may seek advice from the commission. If the commission is meeting with a company who may be affected by legislation, which company may be giving advice to the Minister in respect of that legislation, it is appropriate and important that a record would be kept of that and that the public would be able to be aware of it. That is core to public confidence in the commission. The public must be confident that the Minister in receiving the advice of the commission is not influenced in a way that it is not aware of. I do not want to impugn the intentions of the commission or how it operates but it is important that it be transparent and be seen to be transparent and that there be clear records of how it does its work. That is part of the public confidence piece.

Leaving aside the question of what may be laid in the Oireachtas Library, is the question of the keeping of records in regard to with whom the commission consults at least a point that the Government recognises as being appropriate?

I can only respond to the substance of the amendment and what the consequences of accepting it would be. As I said, it would not be usual for internal records to be placed before the Oireachtas or for the Oireachtas Library to store such records. An coimisiún will be independent and will have the right to consult with whom it wishes as an independent body. We have confidence in an coimisiún. As I said, it is not the norm that it would deposit a record of each activity with the Oireachtas for the Oireachtas Library to store.

The Minister of State can choose to not answer that question. This is the Committee Stage debate. When we come to the section I will speak to it and ask the Minister of State the same question and, perhaps, he might answer it. He is currently answering in respect of the records being laid before the Houses of the Oireachtas. He is not answering in terms of the other issue. In this Committee Stage debate we are trying to determine how we are able to move forward together on Report Stage. As we come to it, I will speak to the section, when I will again put the question to the Minister of State. I would urge that the Government would give a clear signal that it expects and plans to ensure that there would be transparency in regard to the consultations that take place.

The Senator has made her point. The Minister of State has responded to the amendments.

He has spoken to the amendments. We can come back to the issue when we come to the section.

To my mind, the Minister of State is dealing with all 228 amendments as tabled. He will deal with sections as we come to them.

We will come to the section presently.

We must first dispose of amendments Nos. 70 and 71.

Amendment, by leave, withdrawn.

I move amendment No. 71:

In page 36, between lines 18 and 19, to insert the following:

“(4A) A record of any consultations conducted under subsection (4) shall be kept and such a record will include the rationale by which the Commission deemed the person to be appropriate to consult with, and such records shall be deposited with the Minister and laid before both Houses of the Oireachtas.”.

I reserve the right to reintroduce this amendment or a similar amendment on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 72:

In page 37, line 14, after “rules” to insert the following:

“and shall identify specific barriers to accessing audiovisual media services for people with disabilities along with possible mitigation measures”.

This deals with the annual report which addresses the issue of the accessibility of audiovisual media services to persons with a disability. We had this discussion in our previous debate on the Bill. The question was not simply about accessibility but also identifying specific barriers. My amendment would elaborate on that report and look to the identification of specific barriers to the accessing of audiovisual services for persons with disabilities and mitigation measures.

I intend to introduce a further amendment on Report Stage which would ensure that the annual report would not simply look at the issue of access for persons with disability in terms of audiovisual media but would also look at the issue of participation by persons with a disability in respect of audiovisual media. That is a further amendment to section 31(4) that I intend to introduce on Report Stage. In the interim I have simply expanded on the language of the annual report outlined in section 31(4) to cover the identification of specific barriers and the suggestion of potential mitigation measures.

I thank the Senator for this amendment. Section 46O of the Broadcasting Act, as amended by section 9 of the Bill, provides that the commission may make media service rules to, among other things, ensure the broadcasters take steps to promote the understanding and enjoyment of, and access to programmes by persons with a disability. These will build on the access rules published by the Broadcasting Authority of Ireland in 2009, which will continue in force under this Bill.

In addition to this, section 46O also provides that an coimisiún shall give effect through media service rules to article 7 of the revised audiovisual and media services directive which requires that member states ensure that media service providers under their jurisdiction work continuously and progressively to make their services more accessible to persons with disabilities through proportionate measures. As such, in reporting annually to the Minister, an coimisiún will be required to report on progress in this obligation to continuously and progressively work towards making audiovisual media services more accessible. This requirement is set out in the subsection Senator proposes to amend as follows:

An annual report shall include a report to the Minister on progress made towards increasing the accessibility of audiovisual media services to people with disabilities, and in particular, on progress made to achieve the intended outcomes relating to such accessibility set out in any media service rules.

As the subject matter is already covered by the Bill, I do not intend to accept the amendment.

My amendment seeks to ensure that we did not end up having very general figures in terms of accessibility but that the report looks to address specific barriers and how they might be mitigated. Rather than having a very generic progress report, it should actually be a problem-solving report. I welcome the existence of the annual report within the legislation. I think it is a constructive and positive measure. My amendment was an attempt to strengthen it. I will not press my amendment further at this point but I ask that there be engagement according to the principle the Minister, Deputy Catherine Martin, previously-----

I must ask the Senator to report progress.

Progress reported; Committee to sit again.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.

Cuireadh an Seanad ar athló ar 6.45 p.m. go dtí 10.30 a.m., Déardaoin, an 5 Bealtaine 2022.
The Seanad adjourned at 6.45 p.m. until 10.30 a.m. on Thursday, 5 May 2022.
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