I welcome the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan, and his officials. The meeting has been convened for the purpose of consideration by the select committee of the Broadcasting Bill 2008 which was referred to the committee by order of the Dáil on 6 November. I suggest we consider the Bill until 4.15 p.m., when we will break for the Order of Business and reconvene at 5 p.m. approximately at which stage we can agree a time at which to conclude. Is that agreed? Agreed.
Broadcasting Bill 2008 [Seanad]: Committee Stage.
I will not be moving amendment No. 228 when we reach the appropriate section.
Amendments Nos. 1, 3 to 6, inclusive, 116, 117, 130, 210 and 211 are related and will be discussed together.
I move amendment No. 1:
In page 12, to delete lines 17 to 22 and substitute the following:
" "broadcasting service" means a service which comprises a compilation of programme material of any description and which is transmitted, relayed or distributed by means of an electronic communications network, directly or indirectly for simultaneous or near-simultaneous reception by the general public, whether that material is actually received or not, and where the programmes are provided in a pre-scheduled and linear order, but does not include:
(a) a service provided for viewing in a non-linear manner where each viewer chooses a programme from a catalogue of programmes, or
(b) other audio and audiovisual services provided by way of the Internet;”.
I thank the Chairman and look forward to the debate we will have on the Bill.
Amendments Nos. 1, 3 to 6, inclusive, 116, 117, 130, 210 and 211 primarily deal with definition issues. Amendment No. 1 deals with the definition of "broadcasting service", a core definition. The amendment brings it into line with the concept as set out in the new audiovisual media services directive which must be transposed to law by December next year. It draws a distinction between what might be called traditional linear broadcasting services and newer video on demand or non-linear services. It makes it clear that broadcasting services, as well as having many other characteristics, are only those of a linear nature, with a regime for non-linear services set out in the directive to be transposed by regulations next year. It also makes it clear that any audiovisual services on the Internet are outside the scope of broadcasting law as set out. The intent is to maintain a certain freedom for the development of new Internet services, as we do not want to be too prescriptive and tight in the regulation of new and non-linear use of the Internet. At the same time there are services such as IPTV which in a sense are linear and genuinely are broadcasting services. We want to seek to capture this in the definition.
Amendment No. 3 is an associated amendment which seeks to clarify that IPTV is a type of network that can carry broadcasting services when other conditions are met. Amendments Nos. 116, 117 and 130 are associated amendments which clarify that IPTV can be a network on which a service is carried or is deemed to be a broadcasting service and remove the general exclusion relating to the Internet. A revised definition of "broadcasting service" will ensure Internet services which are not broadcast services will not be included unintentionally.
Amendment No. 4 broadens the definition of media literacy to reflect the fact that media can include that created by an individual or community, as well as the more traditional creators. Amendments Nos. 5, 6, 210 and 211 bring the spelling of "radio" into its Irish format for the purposes of identifying Raidió Teilifís Éireann.
I have no objection to what the Minister is trying to do but will he explain what is meant by "linear order"? I did not grasp it. My interest relates to broadcasting on the Internet and people watching television services on their computer screens an hour after a live broadcast, for example. The Minister must take account of this but I would like a more basic understanding of what a pre-scheduled and linear order actually means in how programmes will be broadcast.
It is a good question as we are considering definitions. As regards what linear order means, it means something that works in a line but my understanding is that traditional broadcasting services operate on a concept of "one to many"; a single broadcaster broadcasts to a large audience in a continuous flow. It is not recorded to be sent on an on-demand basis. Non-linear broadcasting services can be sent on-demand and are not broadcast live. They have the characteristic of "many to many" which can be seen in Internet technologies such as YouTube or similar media.
That kind of stuff.
They can allow one-to-one communication but not one to many. That is how I see the definition between linear and non-linear. We do not want to restrict use of the Internet and innovative media technologies via the Internet. It includes the IPTV format which is linear and has the characteristics of a common broadcasting service — it is live and can potentially be streamed continuously to many viewers. Non-linear services are not necessarily broadcast live or picked up by a large audience from a single broadcast.
The Minister's approach is reasonable and understandable when dealing with technology that is advancing rapidly. It raises an issue in terms of payment for services as they expand and become more diverse. The old idea of a television licence seems more archaic.
In regard to how the amendments are grouped — particularly the next grouping — it is not a good idea to have such a range taken together in this way. The Minister has gone through the amendments in this grouping, but there is an enormous number in the next grouping, with a large number tabled by the Minister. The Bill was published some time ago after a long process of scrutiny so why does there now need to be such a remarkable number of amendments? Most seem to be technical amendments which can be passed but it raises a question about the standards of parliamentary draftsmanship.
Later in the Bill an issue emerges which has been raised at the eleventh hour and which we will discuss later, but this is not a good way to deal with a Bill. An enormous number of amendments have been grouped and the Minister is tabling a great many which could have been foreseen. I accept that technology changes and we must adapt but I am concerned that we have not had enough time to look at the impact of these amendments.
I take Deputy McManus's point but the Bills Office advised us as to the grouping. The vast majority of the amendments are technical in nature but the legislative process allows for improvements in each drafting of the Bill. Even if it is cumbersome to manage so many amendments, technical and substantive, it is right to make the changes needed. The next group is a particularly large and cumbersome block but I hope we can deal with the majority quickly on account of their being technical in nature.
The Deputy asked about the implications of the linear and non-linear broadcasting environment for the traditional method of funding. A recent international report, put together by PricewaterhouseCoopers, on the development of electronic media advised against over regulating digital technology and suggested it would develop better where there was freedom, owing to uncertainty as to how the market will evolve. For a country with a growing digital media services network it is very important for us to become a centre for the provision of digital media content as there are opportunities to create employment in the sector. One of the intentions of these amendments is to avoid over regulation of services which are pulled down from the Internet rather than pushed put by broadcasters.
It is becoming increasingly apparent that consumers are using services that are free but paid for by advertising content on the Internet. Despite this, broadcasting will remain with the large, traditional broadcasting sector, delivering on a one-to-many basis and that will still need to be funded in a traditional manner. New Internet advertising revenue will not take over, at least in the next five years, to completely undermine traditional funding mechanisms.
I was not thinking of it taking over. I do not disagree with anything the Minister said but he did not mention the quality of content. There has clearly been a dramatic fall in advertising revenue and that has a knock-on impact. The television licence is paid for regardless of how well or badly the economy is doing and I understand Germany has a tax system for this kind of service. We could end up with the quality of content being directly impacted by a reduction in revenue and that would be of concern to all of us.
I agree — content is everything in this new world. Those who are skilled and produce high-quality content will have what consumers are looking for, regardless of the mechanisms whereby it is achieved. The plurality of platforms will increase the importance of content because people will want reliability and those who produce high-quality content will attract the viewer.
The more we discuss amendment No. 1 the more I have concerns about it. I do not propose an alternative but I am not sure how this amendment deals with a person who relays broadcast material from a television service via the Internet an hour or two later. The amendment mentions "simultaneous or near-simultaneous reception" but what does that mean? Does it mean something which happens at the same time, or within one or two hours? If one wants to watch the BBC on the Internet one can do so one hour after it has been broadcast live and I presume such issues are covered by the amendment. I am concerned at the direction in which Internet television is going. It is a very exciting medium and is an industry of great potential but it will impact on existing broadcasters, advertising revenue and the way people watch television. I will not oppose the amendment but I ask the Minister to look at the issue again between Committee Stage and Report Stage to make sure all the eventualities are covered. It is a very difficult area on which to be definitive.
The wording of amendment No. 1 is chosen carefully. The definition applies to broadcasting services but does not include a service provided for viewing in a non-linear manner where each viewer chooses a programme from a catalogue of programmes. Another distinction of linear programming is that a customer decides to pull a programme down from the Internet and is in charge of timing and other factors.
Is that not the case with every Internet application?
The majority of Internet services in this regard are outside the definition, hence the wording of the amendment. It will maintain the freedom to develop Internet technologies.
Deputy McManus cited the German example and it is true that Germany applies a licence system for mobiles and laptops but I would be concerned that the immediate regulation of a growing industry might restrict it. There is a strategic opportunity for our country to develop an industry in digital media services via the Internet so some of the specific broadcasting legislation we are applying in this Bill should cater for that as it does for traditional broadcasting services.
Amendments Nos. 2, 19, 21 to 23, inclusive, 25, 26, 36, 43, 47, 57, 59, 60, 64 to 67, inclusive, 75, 76, 78 to 82, inclusive, 94 to 102, inclusive, 104, 106, 112 to 114, inclusive, 118, 121, 123, 124, 126, 127, 129, 132, 136, 137, 141, 143, 145 to 163, inclusive, 165 to 167, inclusive, 169, 170, 172, 173, 193 to 196, inclusive, 200, 203, 212 to 216, inclusive, 218 to 221, inclusive, 224 to 226, inclusive, 232 to 234, inclusive, 236, 244, 247 to 249, inclusive, 251 to 254, inclusive, 256, 258 and 259 are related and may be discussed together.
I move amendment No. 2:
In page 13, line 3, to delete "18 December" and substitute "11 December".
In moving amendments, must I read out the number of each amendment, or can I rely on the Chairman's presentation? These are minor drafting amendments necessary to excise errors and improve the clarity and consistency of the text of the Bill which, I hope, can be agreed.
I have never seen such a bunch of technical amendments being discussed together. I appreciate that this is a long and complex Bill but this grouping raises questions. I understand the Attorney General's office prepared this Bill but some Departments have their own parliamentary draftsmen. While this is not a particularly big office, Departments and offices which have parliamentary draftsmen seem to produce better quality legislation. The Department of the Environment, Heritage and Local Government has, or used to have, such a facility.
I take Deputy McManus's point. However, I would prefer the legislation to be changed here than have to go to court.
If they are that serious we had better——
I do not think they are. In general, it is better to use Committee Stage as an opportunity to continue to refine and improve a Bill where improvements are possible.
There is no point in commenting except to note that we will looking at 67 amendments. This needs a leap of faith. If they are necessary and minor enough to be clubbed together I will support them.
I move amendment No. 3:
In page 13, line 20, after "television" to insert "and internet protocol television".
I move amendment No. 4:
In page 15, line 9, to delete "or" and substitute the following:
"(c) the processes by which individuals and communities can create and publish audio or audio-visual material by means of broadcast and related electronic media, and”.
I move amendment No. 5:
In page 16, line 1, to delete "Radio" and substitute "Raidió".
I move amendment No. 6:
In page 16, line 3, to delete "Radio" and substitute "Raidió".
Amendments Nos. 7 and 8 are related and may be discussed together.
I move amendment No. 7:
In page 16, line 43, after "Act" to insert the following:
"shall be estimated and planned by the Minister on a multi-annual basis and".
This amendment is self-explanatory. It is generally understood that multiannual planning and funding makes sense in that it ensures consistency and prevents people from having to wait from year to year to learn where they stand. Considerable problems arise when the tap is turned on and off, particularly when it happens before and after an election. We have an opportunity to think in a multiannual way and present planning proposals in a highly suitable way.
Amendment No. 8 ensures there is input from the Oireachtas into orders or regulations. I commend the Minister for the approach he has taken in promoting the participation of this committee in appointments. It is to his credit and these amendments are in the same vein. Secondary legislation is often seen as the preserve of the Minister and not robust enough to undergo scrutiny and face the possibility of being annulled, if necessary.
With regard to amendment No. 7, I am informed that section 4 is a standard provision that appears in most Acts so I cannot accept it as proposed. In the context of amendment No. 8, I appreciate the Deputy's comments on the role we are giving the Oireachtas committee in recommending nominations to boards. That is an important development and a responsibility I look forward to the committee taking on. We will be under certain time constraints and it may pose a difficulty for the committee in terms of time and resources. We are breaking new ground and a detailed consideration of the structure of the process and its mechanisms will be necessary but I look forward to its recommendations for nominations to the three boards.
The Deputy suggests putting a positive resolution before the House for every aspect of the orders to be made. There is provision for the Houses of the Oireachtas to be notified of certain orders, such as the removal of a member of the broadcasting authority of Ireland. I am reluctant to include a generic provision because there are many different orders and their scale would diminish the strength of a specific order. Later amendments, to which Deputy McManus referred, propose such provisions, such as a requirement for a three-year levy to come before the committee. I would prefer to make specific provisions such as that than a generic provision.
I cannot let the Minister get away with one thing he said. He said that, on the one hand, he would do something radical by giving this committee a role in appointments to boards but, on the other, he dismisses amendment No. 7 by saying things are done in a different way and that will continue to be the case.
I move amendment No. 8:
In page 16, before section 5, but in Part 1, to insert the following new section:
5.—Any order, scheme, rule or regulation made pursuant to this Act shall be laid before both Houses of the Oireachtas as soon as may be after it is made, and, if a resolution annulling the order or regulation is passed by either such House within the next twenty-one days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.".
I will withdraw amendment No. 8 and resubmit it on Report Stage.
Amendments Nos. 9 to 17, inclusive, 142 and 144 are related and may be discussed together.
I move amendment No. 9:
In page 17, subsection (1), lines 39 and 40 and in page 18, lines 1 to 3, to delete paragraphs (a) and (b) and substitute the following:
"(a) members shall be proposed for appointment by the Government on the nomination of the Minister,
(b) approval of members appointments shall be given to the Joint Oireachtas Committee following an approval hearing by the Joint Oireachtas Committee with the nominees present, and
(c) the final approval decision for the members of the board shall be taken by a single vote on the make up of the entire board.”.
The Minister's response to the previous amendments is probably an indication that he will not accept what I am now to propose. That is disappointing because his willingness to change the way we appoint a board as important as that of the new broadcasting authority is welcome and brave because it sets a precedent. It is a genuine effort to ensure appointments to State boards are slightly less political than the system whereby the Minister found certain people to serve. Certainly, the experience has been that the political preferences of those people can be an advantage at times. I proposed an entirely different way of doing this but I deliberately tried to draft this in a way I hoped the Minister could accept. For example, in terms of the composition and appointment of the contracting awards committee and the compliance committee, I was not asking that such people come before an Oireachtas committee. I was suggesting that the Minister should come before an Oireachtas committee to give us the names.
I will outline my rationale on this amendment. It is the job of the Government to make decisions on who is nominated to State boards. The Government is elected to do this and it is the privilege of a Minister and his or her colleagues in Cabinet. The role of an Oireachtas committee is to ensure the process is properly followed and that people nominated to important boards, like the main board in the new authority, are properly vetted to ensure the Minister's nominees are suitable. I do not see why we would be better equipped than the Minister and his Department to come up with the names and choose people. It may happen that individuals in this committee will be lobbied by people who would like to be on the board or else we will go out and find people we happen to know from our experience inside and outside politics. In this way we might approach a suitable person but I do not see how this would improve and depoliticise the situation.
Surely the role of the committee should be to question a group of nine people, a chairperson and eight others, sitting before us. We could discuss what motivates them, why they want to be part of the new authority and their interest in broadcasting. This would not be done in the manner of a witch hunt but in a positive way. I am trying to be politically realistic when I say we would not vote on the suitability of each member but on the overall board. We would not target individuals and this is modelled on how the European Parliament vets the European Commission. The Parliament does not choose the Commissioners. Governments do not ask the Parliament to give individual names; they make decisions which are vetted by the European Parliament. They go through a committee hearing and at the end of the process they vote on the overall Commission, not the suitability of individual Commissioners. They vote for the team. If the general consensus is that the Minister has the team right in terms of appointments to the board it will be voted through.
The reality here is that the Government will have a majority on committees anyway so it would take a pretty appalling performance by nominees of the Minister for even Opposition parties to vote against the proposed panel of nominees. I welcome the fact that the Minister has opened this issue for discussion but I do not think he has got the matter right. I do not see how asking an Oireachtas committee, the membership of which will change over time, to produce a panel of people from which the Minister would accept a minority of board members would significantly add to the process. It merely makes the statement that he will listen more seriously to what Opposition spokespeople say. It introduces a new layer of time-consuming work to finding suitable people. It is the Minister's job to make this decision and it is our job to test it. In the same way, it is the Minister's job to bring forward legislation and it is our job to test it, amend it and vote against it, if we do not agree with it.
This approach is wrong. I do not expect the Minister to accept everything I say but I expect him to acknowledge that what we have drafted here is a genuine effort, as opposed to it being a case of us playing politics with the situation. The Minister said some time ago that he intended to take seriously Opposition amendments to this legislation because it is a big Bill with much ambiguous thinking on the best ways to do a series of things. This is such a case. There is nothing in this for my party or the Opposition.
Amendment No. 9 is the most important of this group. It states:
(a) members shall be proposed for appointment by the Government on the nomination of the Minister,
(b) approval of members appointments shall be given to the Joint Oireachtas Committee following an approval hearing by the Joint Oireachtas Committee with the nominees present, and
(c) the final approval decision for the members of the board shall be taken by a single vote on the make up of the entire board.
We have tried to move away from the idea of a witch hunt with regard to a potentially vulnerable member who might be uncomfortable in front of an Oireachtas committee, by having a single vote on the entire board. We have not even asked for this process in terms of the contract committee and the compliance committee; instead, we simply ask for the names the Minister proposes to present to the committee. Certain conditions will apply to those committees: the nominating members would need to have technical, consumer affairs and industry experience and there would need to be gender balance, in addition to the other things the Minister rightly proposes.
I ask the Minister to consider this amendment, rather than dismiss it out of hand.
As a matter of interest for the Minister, the lobbying process has started already. Members of this committee have been contacted to become part of these processes. It would be a mistake to dismiss this amendment; it is more radical than what the Minister has included in the Bill. We should not just continue the way we have always gone because it has not been a wonderful way. We could all cite examples of bad appointments to State boards and the Minister should consider Deputy Coveney's suggestion.
In terms of amendment No. 13, the Minister has outlined in his current draft of the Bill that when there is a vacancy we will need to go through a process of the committee proposing a person to fill it and so on. This is too laborious and if there is a vacancy on the committee I see no reason the Minister should not inform the Oireachtas committee of the fact and make an appointment; this is his job. He would inform us of who the person is and he or she would not need to come before us for a detailed question session. Some may fear a so-called political witch hunt based on my proposal but I have tried to move away from such thinking towards a responsible system of hearings. This system could apply to other significant State board appointments but we are not suggesting that this should be a model for all appointments to State boards, as is made clear in amendments Nos. 11 and 12. Those amendments show how we propose to deal with the contract and compliance committees.
I take seriously what the members have said on their amendments but what I propose is far more empowering for the Oireachtas committee. It will widen the empowerment of the democratic process. Far greater power lies in the power to propose than the power to oppose. The position I propose is more constructive. Deputy Coveney suggests this may be too laborious, may create a new layer of work and that the committee may not have time to do it but there is a provision in the Bill——
I did not say we would not have time to do it.
The Deputy said he was concerned it might create a new layer of work and would be too laborious.
I also said there would not be an upside. I do not see why we are more qualified to choose people than the Minister.
The Deputy is a member of an Oireachtas committee which has an interest in this area. Having discussed the issues with all the witnesses who have appeared before the committee, he has knowledge of the subject and a view which is worth adding to the mix. The wisdom of the crowd is a concept which is evolving within Internet society because it opens up democracy by flattening and widening decision making, ensuring that better decisions are made. If the Deputy knows somebody who is suitable why would I insist I know better. I am happy to share the responsibility, which is an important one, with Oireachtas colleagues who have an interest in the area. I do not understand why the Deputy opposes that and proposes setting up a star chamber which would not have the power to appoint a member but could only block the entire process. Giving the power of appointment to the Oireachtas committee has the potential to lead to better boards by broadening the process of selection.
This is an important issue in a modern democracy. We need good people to engage in the act of public service by serving on boards. There are a large number of State boards under the aegis of my Ministry and one of the most important things I do is appoint people to them. They are representatives of the public interest in crucial commercial and non-commercial sectors of our economy. We can do the job better by giving more open and broader consideration to the question of who should be board members. The power to propose is, in that regard, far more interesting than the power to oppose.
It will be difficult to implement the mechanism at first because it has not been done before. It will require co-operation so that it does not become party political. We must ensure people are not recommended because of party affiliation but because of their ability to serve. It is difficult to get people to come forward because it is a major responsibility but persuading people to come forward and then subjecting them to a question and answer session will not help us recruit good people. It is better for the committee to do that work first by having its own discussions, either in public or private, and then coming up with a recommended list of names so that they can be considered. That is more radical than having the power of veto over a board which I, as Minister, appoint.
I agree with the Minister that his proposal is a more radical departure than ours but that does not mean it is the right one. We, as an Oireachtas committee, have no say and no way of either vetting or questioning the majority of the board. Five of the nine members are appointed by the Minister and we do not even see them unless they come before an Oireachtas committee for a hearing after they have been appointed. I accept that the Minister's proposal gives us a say for the first time ever, although it only allows us to put a panel of nominees to the Minister, whom he does not have to accept. It is no different from the committee writing to the Minister saying it thinks certain people are suitable. He decides whether to accept the recommendation and we never get to meet the full team.
I agree that appointments to State boards is one of the most important responsibilities of any Minister and we have seen the consequences of bad appointments. If the Minister is serious about not putting his friends on boards and about having transparent, accountable mechanisms for putting boards together let us meet the nominees, talk to them and vote on their appointment. If the Minister wants us to propose four names I will happily go through that process.
Is this a mechanism to prevent a Minister from abusing his or her position by putting former party members or pals on a State board as a reward? It is not such a mechanism because we have no way of testing the Minister's nominees, whether they be nine or five. I will accept that this committee should come up with a panel of names if that helps achieve a broader balance on a board but we have no way of testing the system because we can never question the motives of the people who take up these extremely powerful and influential positions.
The primary function of this committee is to ensure the Minister does his job properly and the State is served by the decisions he makes, whether in legislation or State appointments. This is an opportunity to put a good new system in place, led by a Minister who can be seen as bringing renewal to Government on issues such as this. This amendment will ensure that, before a final decision is made, we will have an opportunity to expose a blatant political appointment, though I do not think the Minister will make such appointments. Ministers who succeed the present Minister, however, may not take the same view on party allegiances and other factors which influence decisions on State appointments.
There is a general consensus in support of the principle, which is good and deserves to be developed. I ask the Minister to look at it again before Report Stage. The system will work as long as he is the Minister but how robust will the structure be in the hands of other Ministers who do not share his outlook? There is no point in legislating unless it applies in all cases. I support his work but there is a question mark over the outcome in the absence of goodwill from a Minister. We are creatures of habit and a Minister may be in place who will not pay attention to anything the Oireachtas committee says.
The power to propose is better than the power to oppose. A person one may think would be good on a board may have a political connection but should not be precluded from being appointed. That is a very qualitative and subjective thing to assess. It would be impossible for an Oireachtas committee to make any progress if it blocked an appointment because it felt one person was political.
The typical question begins: "Are you or have you ever been...?".
Exactly. It is impossible in this small country not to run into a person whom you have appointed to a board. In a board comprising ten people, it is unavoidable that at least one person will be political in one way or another. Stopping the process because someone was political would not work.
The process will not stop because the Government has a majority on the committee.
I have put a lot of thought into this provision. It is right and proper that a Minister who is responsible for policy has the ability to appoint the majority of members to a board. These members are carefully chosen. The board will take account of Government policy in its considerations. That will not require the Minister to appoint every member of the board. Broadcasting is a particularly complicated area in that the power of the media meets the power of politics. There is no more sensitive meeting place. It is appropriate, therefore, to provide for a wider board membership. Due to the very nature of members being selected by an Oireachtas committee as well as by the Minister, there is a smaller likelihood of the board representing only one political shade. Ministerial power is being yielded because we will develop a better board and, in the long run, better broadcasting services. We need strong boards comprising people of quality and substance who can hold management to account on sensitive subjects because broadcasting is a complex and subjective area. Members should have strong financial and legal backgrounds and be interested in a wide variety of issues.
We all agree.
We can better achieve that aim with the proposal I am setting out. I disagree with Deputy Coveney's claim that I am open to discussion. I am open to action. I intend to act in the next few months but, if we cannot manage the process, there is provision in the Bill under which the Minister may appoint all ten board members. It may be too complex and laborious but is worth trying.
There are only nine members, not ten.
One member of the board is appointed on the basis of his or her position.
I am not hung up on the idea of giving the committee a role in making recommendations. The committee will not make a decision on four of the board members. We will put a panel before the Minister which can then be rejected by the Cabinet. The Minister ultimately retains the power to make a decision on all nominations. The committee is not empowered to make a decision, rather it can recommend a panel that the Minister can assess according to whatever formula he wants to use. The Government retains the power to appoint and rightly so.
I am happy to go along with that logic and put the hours into finding a good panel from which the Minister can chose appointees but, in return, I would like him to consider putting the nominations to the committee before a final decision is taken in order that we would have an opportunity to assess the team. I only ask this in respect of the top jobs such as in the broadcasting authority because the other boards are the subject of an entirely different debate. If the Minister can accompany me some distance in that regard, I will be happy to work with him on the other proposal.
In recognising that we are setting a precedent, I would be happy to come before the committee, perhaps on a confidential basis, to outline the board members whom I intended to appoint. That would make the committee's job easier in considering an appropriate mix of board members.
That would be very helpful.
I will come to the committee with my proposals in respect of appointees to the board in order to give it a sense of the mix of skills needed. We can then discuss our common objective of ensuring there is an effective and strong board. However, our working arrangements will have to be flexible and innovative.
How stands the amendment?
The only way we can make an informed decision is if the Minister is willing to include an amendment on Report Stage that would require him to come before the committee to present his five nominees.
I do not know if it can be done on a statutory basis rather than as a working arrangement.
An election could be held in the morning that could result in the disappearance of the Green Party and Fianna Fáil getting an overall majority. I am tempted to start mentioning names. All bets are off. God knows, I have been in opposition for long enough and dealt with Ministers who did not even take amendments seriously, never mind proposals for appointments. If we are serious about trying to work together in appointing the right people, the legislation should provide that the Minister shall present his five nominees to the board before seeking recommendations on a further four members to complement the team. It would be helpful if the Minister agreed to proceed along these lines. If, for example, he chose a representative of the disability sector, we would realise we did not need to nominate somebody to push disability issues. However, if he searches for his five nominees at the same time as we are holding hearings, we may end up choosing persons with similar backgrounds. We need to tick all the boxes in terms of technical expertise, familiarity with the industry and understanding the rationale behind public service broadcasting, competition, disability and gender issues and the arts. Board members should have a broad appreciation of what they need to target in public service broadcasting. We will need to hold some hearing, unless the Chairman proposes that each of Fianna Fáil, Fine Gael, the Labour Party and the Green Party can nominate one member.
There is no such proposal.
The committee will have a very difficult job and the Chairman will face a significant workload in ensuring we can stand over nominees. We will be subjected to extensive lobbying. Before agreeing to take on that role, I want to know if it will be developed in a proper fashion rather than it being a case of committee members trying to appoint their pals.
I strongly support Deputy Coveney in placing this arrangement on a statutory footing. I do not take a Minister seriously when he or she says, "Trust me." Although I trust the current incumbent, I do not trust the Ministerper se because he or she is an unknown quantity. Depending on the people’s will, we could have all sorts of Ministers in the next five years; therefore, a nod and a wink will not suffice.
The Minister made a sensible and obvious point in regard to advising us on his nominations but this cannot be merely an add-on. It must be provided for in the Bill. This process requires information from the Minister in order that we can decide on a balanced and rounded panel of nominees. That is the purpose of legislation. The Minister would be advised to return to us on Report Stage with a simple amendment to address this issue. The recommendations made by Deputy Coveney are not onerous and, while they would not address all the issues he raised, they would improve the process. Is that not the reason we are here?
Section 10(4) states, "The Minister shall cause a statement in writing specifying the expertise or experience, terms of office and remuneration of the members of the Authority and a statutory committee to be laid before both Houses of the Oireachtas". We should see if we can tweak the timing on Report Stage to provide for such co-ordination in the way a board is appointed. This is being included in legislation, regardless of who is the Minister. This is the system we are putting in place.
That is the point I am making. We need a process.
The strength of what we are doing is that it will not be done at the whim of any one Minister at any one time. It will be provided for in law. I am happy to consider the discussion we have had, look at the existing provision and see if we can ensure it will allow us to do what we want to do, to allow for co-ordination.
On the point made by the Minister, section 8(4)(b) states: “4 shall be appointed by the Government on the nomination of the Minister”, with the Minister having regard to the advice of the Oireachtas joint committee. The Minister will change at some stage and if a highly political person holds the office of Minister, under this legislation, he or she will simply be able to ignore the Oireachtas committee and put in place his or her own appointees should he or she choose to do so. I am endeavouring to put a system in place that would introduce some level of accountability for the overall team. If the Minister gave an indication of five nominees to the Oireachtas committee and asked it to come back with four more names to complement the team, with a final decision to be made by the Minister, it would be an improvement on what has been proposed. That would still not give me what I would ultimately like to see happen — the Minister or the Minister’s team on the board coming before the committee to outline its experience, regardless of who the Minister or the committee members were. The Minister may not want the individuals in question to appear before a committee because they might be shy. If somebody is to be a member of a board such as the new broadcasting authority, he or she must be willing to at least have his or her experience, knowledge and motivation questioned if he or she is to be given such responsibility. It is by doing this we will know the person can do the job on behalf of the State.
I hope the Minister appreciates that I am trying to be constructive and that I am not trying to make a big political point before going down in flames. I am trying to strike a balance between what the Minister and I are proposing. I appeal to him to look at the issue and come back with a proposal with which I suspect he could live but perhaps some of his Cabinet colleagues might not. Perhaps that is the problem, as it would set a precedent. If the Minister is brave on this, I will take a responsible approach to supporting it from an Opposition perspective. I will withdraw the amendment and not move amendments Nos. 9 to 13, inclusive, as long as the Minister gives an assurance that he will consider the matter before Report Stage.
I am convinced the approach I am taking is the correct one. To repeat, I want to give the power to propose but not oppose. Setting this up as a star chamber in which to cross-examine people who are appointed will not necessarily lead to better board appointments. I am happy to work as part of a co-ordination process.
May the committee cross-examine the Minister on proposed appointments?
I have set out that the Minister will also lay before the Oireachtas a statement outlining the experience or expertise, terms of office and remuneration of members of the authority.
Is that after they have been appointed?
I am happy to put this to the Houses of the Oireachtas. I want to co-ordinate——
The Minister will only be stating what is being done after the decision is made. That does not provide for accountability.
I will not give the committee the power to change a Minister's decision. That would be inappropriate. I do not want to hand over to the committee the power to bring in people I appoint, quiz them and then indicate if the decision was appropriate.
The Minister will not even answer questions on behalf of potential board members. May this committee ask for a hearing system under which the Minister would lay his appointments before it and committee members would have an opportunity to ask questions on where the board members come from and about their motivation?
There is nothing to stop the committee doing that at any time. The Deputy could ask me at Question Time why a chairman of a certain body had been appointed, for example. There is nothing to preclude this.
Of course there is.
There is no process to require the Minister to come before a committee to do so. The Minister could indicate he or she did not have time to do it.
Board appointments are as public as any other appointments. There is nothing to stop the Deputy, either in committee——
They are public once made but not beforehand. We are talking about a process of putting a board in place and making it more accountable.
I am not——
Accountability is easy once the decision is made.
That is where we differ fundamentally. The power given to the Oireachtas committee is to propose people. That is more radical and significant than the power for the committee to cross-examine those appointed.
At a practical level and having regard to the advice of the Oireachtas joint committee, that is what we will get. The committee has a majority of Government members. We must work on that basis. The Minister will return with information when he or she is considering five appointees. Their expertise will be outlined and there will be comprehensive information given, rather than simply naming five people whom we can take or leave. There must be some justification for the proposed appointments.
I am uncomfortable with the idea of going too far down the road of having a star chamber, as people will not put their names forward if we do. It is a problem in public life that there are issues regarding how far we can scrutinise. I understand this as a factor in public life that was not evident preveiously. If the Minister can ensure he and his successors will be bound by legislation before we proceed with our work and that there will be justification of the five names, we can have a dialogue with him whenever we need to on an informal basis.
It must be enshrined in the legislation.
Otherwise it would not happen with any other Minister.
Absolutely. That is what I am asking for with the amendment the Minister is considering for Report Stage.
The Minister is not saying he will bring forward such an amendment but he will be willing to do so on a personal level to give an indication of the five names being proposed. We are looking to get the legislation right rather than test the Minister. I do not believe he will appoint political pals. I am not trying to blow sunshine in his direction to try to have my amendments accepted; it is my feeling about him. I am trying to have this included in legislation to ensure that in future, when a new board for the broadcasting authority is being put in place — it will not happen too often — there will be a process that will require the Minister to have some legal regard to this committee. What is in place allows a Minister who is political and does not take seriously what the Opposition or committees are saying to ignore us. The Minister only needs to "have regard" to the advice of the Oireachtas joint committee; he may ignore it if he or she does not agree with it.
In our working arrangements we can set a healthy precedent to mark the path. That is what I intend to do.
That does not matter a damn. People forget so quickly.
There are other examples, as in the Czech Republic where appointments are made by the Czech Government on the recommendation of a parliamentary committee. In Estonia, France, Hungary, Iceland, Lithuania and Poland appointments are made by parliament on the recommendation of a parliamentary committee. So there are examples of precedent that we can look to in this regard.
In those systems, however, there are parliamentary hearings concerning such appointments, which we do not have here.
The committee needs to get busy with exactly that — its process of coming forward with the recommended list of names.
I will certainly aid the committee in that task, to make that process work effectively and ensure that we get the best quality board. I will propose the board appointments I am considering to make it effective.
I will say why, but I am not turning that into a star chamber where either I or the board appointees must justify themselves to the committee. That is where we differ.
I know what the Minister is saying and I am willing to come away from the star chamber type of operation, even though I do not accept for one minute that the kind of people who will be on the board of the broadcasting authority of Ireland will not be able to show what they have to offer. If the Minister thinks that is an issue, fair enough, but we are not writing legislation for the Minister, Deputy Eamon Ryan. We are writing legislation that will probably be in place for the next 50 years concerning the process by which new boards will be nominated and confirmed. If the Minister is serious about laying before this committee five names he proposes so that we can have hearings to get an appropriate panel of six or seven people who may fill the final four positions, I will go with that, but it needs to be in the legislation. We cannot just do it because the Minister is willing to do it on this one-off occasion.
The more important precedent, which has nothing to do with me or my successors, is how the Oireachtas committee manages its work. The committee comprises members of all parties. We do not want to end up with a situation, as the Deputy said, where one has one Green, one Labour, one Fine Gael, and one or two Fianna Fáil members on a board. To my mind, that would not lead to an improvement in the quality of boards. It is a subjective area but that is not where we want to go. How the committee manages its process to come up with those four names is one of the most crucial elements. It involves all parties, including the Chair and other committee members to manage that process.
That is a different issue though. I am happy to discuss that with the Minister but that is not the purpose of the amendments we are discussing now. Their purpose is how we can hold the board to account.
It is the first, mostfundamental development that has to be worked on. I have set out the legislative structure which I believe is right. I am very happy to work with the committee to ensure that it works. As part of that process, I am happy to say which people I am thinking of appointing and to assist the committee in its work. However, the main work that has to be done is across all parties, Government and Opposition, on the committee to manage that process in a way that works. Whether that involves public hearings——
With all due respect, we must get the legislation right before we start talking about how it will be implemented and how this committee works to reflect that. I do not agree with the Minister on what is in the legislation, although he has the final call on it. I do not agree that we have enough cover to get more transparency into the appointment system for this board. I am not hung up about the other two boards. I must press my amendments if the Minister is unwilling to examine improving the system to require him to indicate whom he plans to appoint to the board before the committee begins its work on choosing nominees. Otherwise it will be for nothing; we will not know whom to talk to because we do not know whom the Minister will appoint.
There are two things. First, I am hung up on the other two boards, which are equally important. The future board of an RTE authority is crucial and likewise TG4, so I see all three board appointments as equally important. Second, I have said I will come back and examine whether we need to legislate to ensure such co-ordination. The Deputy should recognise that we must be flexible because the timing is difficult.
There is a great deal of flexibility but I am not getting anything back from the Minster.
No. I said I will take into account what has been said here today and will examine that specific provision. However, I am confident the broad structure I have set out in the legislation is the right way to go. We will have to agree to differ on whether there is a cross-examination or an ability to propose or oppose. I will certainly look at that one issue. I look forward to working with the committee Chairman and all the other members. It will not be an easy task. It will be difficult to get agreement on the selection of those people but it will be quite an interesting task.
I accept it will be an interesting task but it will not be made any easier unless we get the legislation we need. The Minister is flimflamming just a bit. We need to hear that he will table an amendment to deliver on what he says he will do, which is that he will come back and notify us. That is the kind of information we must have if we are to make an intelligent presentation to him concerning the remainder of the board. It should be in the form of an amendment to this Bill, whereby the Minister and his successors will revert to the committee regarding the people he wants to put on the board and the justification for that choice. That is all we are seeking and it is so simple.
I said I would do that.
No, he did not.
He did not say he would put it into legislation.
He said he would look at it. These are the little things that trip people up. I do not mean to bully the Minister but we require clarification, otherwise we might fall out over it. Will the Minister come back with an amendment to the Bill?
We are on Committee Stage now, but I will look at it again on Report Stage. I am only committing myself to look at it.
How stands the amendment?
So much for taking our amendments on board. In that case, I want to press my amendments, although I will not call a vote. On a point of clarification, if I press an amendment now but it falls, can I still resubmit it on Report Stage?
Amendment No. 10 has already been discussed with amendment No. 9.
I move amendment No. 10:
In page 18, lines 4 and 5, to delete subsection (2) and substitute the following:
"(2) the nomination and approval process shall have regard to the need for gender balance and representation from the disability sector.".
This amendment covers a different issue and seeks to include the disability sector as well as gender balance. I wish to press the amendment, which is self-explanatory.
Amendment No. 11 has already been discussed with amendment No. 9.
I move amendment No. 11:
In page 18, subsection (4), lines 13 to 15, to delete all words from and including "among" in line 13 down to and including "women." in line 15 and substitute the following:
"(a) among the members of the Contract Awards Committee there is an equal balance between men and women,
(b) when nominating members there is regard given for industry experience, technical experience and consumer affairs.”.
Amendment No. 12 has already been discussed with amendment No. 9.
I move amendment No. 12:
In page 18, subsection (6), lines 23 to 25, to delete all words from and including "among" in line 23 down to and including "women." in line 25 and substitute the following:
"(a) among the members of the Compliance Committee there is an equal balance between men and women,
(b) when nominating members there is regard given for industry experience, technical experience and consumer affairs.”.
Amendment No. 13 has already been discussed with amendment No. 9.
I move amendment No. 13:
In page 18, lines 26 to 48, to delete subsections (7) to (12) and substitute the following:
"(7) The Minster shall inform the Joint Oireachtas Committee if any vacancy in the membership of the authority and shall, within 90 days, inform the Joint Oireachtas Committee of the name of the new nominee to fill the vacant position.".
Amendment No. 14 has already been discussed with Amendment No 9.
I move amendment No. 14:
In page 19, between lines 19 and 20, to insert the following subsection:
"(2) The Authority or a statutory committee shall include at least one member who has had experience of or shown capacity in each of the following areas---
(a) matters pertaining to disability and ageing,
(c) digital media technologies.”.
I move amendment No. 15:
In page 19, lines 29 and 30, to delete subsection (5).
Amendment No. 16 has already been discussed with amendment No. 9.
I move amendment No. 16:
In page 20, subsection (4), line 18, after "Oireachtas" to insert and published inIris Oifigiúil”.
I hope the Minister will do the decent thing. I know we should not discuss this amendment but, with your permission, Chairman, I will comment on it. Half the time, people have no notion what goes on inside these Houses. This is a very simple piece of transparency that I hope the Minister will accept. The fact that it is proposed by the Opposition does not mean he must vote against it.
I am happy to accept the amendment.
Amendment No. 17 has already been discussed with amendment No. 9.
I move amendment No. 17:
In page 23, between lines 27 and 28, to insert the following subsection:
"(7) A person who holds an interest in an undertaking which publishes a newspaper in the State shall be disqualified from becoming or ceases to be a member of the Authority or a statutory committee.".
Has the Minister already spoken on this amendment? Is there a reason it is not being discussed?
The same thought occurred to myself. I believe, because the amendments were grouped, only one was discussed. However, I am happy to discuss this amendment.
Section 12 sets out a number of bases for exclusion from membership of the board of the broadcasting authority of Ireland. For instance, it excludes those with an interest in broadcasting from becoming members. The amendment proposed to extend the exclusion to cover those who have an interest in the publication of newspapers. It is felt this is appropriate, given the proposed role of the authority as an independent regulator of content which will, on occasion, have to consider whether, in the context of media concentration, it can approve or award the passing of broadcasting licences to entities that will have non-broadcast media interests.
I made a broad point earlier about content being important. In this converging world where electronic, broadcast and print media are often taking a web presence where they have common news content or news systems, it is important to insert such a provision and to make sure that any concentration of ownership in the media does not have an undue influence on our broadcasting authority.
Amendments Nos. 18, 20, 24, 27 and 168 are related and may be discussed together.
I move amendment No. 18:
In page 24, between lines 23 and 24, to insert the following subsection:
"(11) Subject to any rule made undersubsection (3), a member of the Authority or a statutory committee shall be regarded as present at a meeting of the Authority or statutory committee where he or she communicates by means of a telecommunications service with the other members present at the meeting.”.
This is a simple provision. Recognising developments in new technology, video conference and so on, it will allow for such a telecommunications attendance at a board meeting to count as attendance. This is appropriate in the modern day.
I understand this idea is all very progressive and up to date, but such a person is not present at the meeting. If the person, for example, telephones the chairman in the middle of a meeting and they have a private conversation, this amendment will allow that person to be considered present. Why does it need to be specified that a person is present because video conferencing, or whatever, is used? Does it mean the member gets expenses for being present? This is an affront to the English language. In these circumstances, a member is not present. Within the context of a discussion by the board, he or she is available, but there must be language to describe that situation. The person is not present. I am affronted by being asked to accept that a person is present when he or she is not. I am bemused by the idea.
I am not trying to create difficulties for the Minister. At a recent meeting of the previous board of the Cork Airport Authority there was a controversial vote following an aggressive and difficult debate on the Cork Airport debt issue. The vote was won by a very narrow margin. One of the votes was taken from someone who was at the end of a telephone line, who happened to be abroad at the time and who spoke only to the chairperson and not to the meeting. He was considered to be present and, therefore, entitled to vote. If his vote had not been recorded there may well have been a different result.
We need to be a little cautious in this regard. I understand the Minister's wish to ensure that if someone, for good reason, cannot attend a meeting of the board a video conferencing facility can allow that person to make a contribution. That should be facilitated. However, there should be a requirement that all members present at the meeting can hear or see each other. Those using a telecommunications service must actually participate in the meeting in order to be considered present. I ask the Minister to think about this.
We do not want to see a chairperson, who is trying to arrive at a decision under difficult circumstances, phoning someone and asking him or her for a vote while those present at the meeting cannot hear the response to the chairperson's question. There might not be anyone at all at the other end of the telephone. A chairperson should not have the power to do that.
I do not suggest that was the case in the Cork Airport vote; I believe a genuine vote was taken over the telephone. However, many members of the board were very unhappy about it. They were not given an opportunity to persuade the absent person by making their argument. The person was not actually present at the meeting but simply conveyed his vote to the meeting, through the chairperson. He, presumably, only heard the chairperson's side of the argument.
I see this as an unsatisfactory precedent. If a person cannot attend a meeting of the authority but wants to contribute to it, he or she must hear both sides of an argument in order to be validly present at the meeting.
Deputy McManus's issue is a valid one. I would not have considered it were it not for the recent difficult decision by a board with which I am familiar.
I will consider what the Deputies have said and will re-examine the wording of the amendment. I take it we are not opposed to the concept. This amendment is intended to enable rules to be set. The authority sets its rules for board attendance. The amendment is an enabling rather than a prescriptive measure. It is a sensitive issue and I will consider what the Deputies had to say.
The wording may need to be more detailed but attendance at a meeting by means of video conferencing facilities is something we should facilitate.
I do not, necessarily, accept the principle. It does not apply in any part of our lives. In the case of meetings of a local authority or the Dáil, if one is not there one is not there. People have been brought into the Dáil on stretchers to vote. Our electorate do not have a luxury in this regard. If they are away from the country they do not have a right to vote.
This seems a curious provision that will encourage people to think they need not go to all the meetings and hear all of the arguments — they will think they can get information from the chairman, who will tell them how to vote. People must either engage in the thoughtful and complicated discussions that take place as the area of broadcasting changes or else we will allow them this kind of facility, of which I do not approve. It is neither adequate nor appropriate to change the wording. I have no problem with video conferencing and discussions that can be carried out through that medium and can be recorded in a way that acknowledges participants. However, I have concerns about long-distance decision-making. It is not appropriate. It does not apply in other walks of life; perhaps it is used in the private sector but I am not comfortable with its use in the public sector. It would encourage alaissez faire attitude to attendance, which would not be desirable.
This is all subject to the rules that will be made; if there is a voting arrangement there will be more detail. There may be different rules around expenses, for example, which is a controversial issue at the moment. Particular rules would be set on the nature of attendance. We should encourage the development and use of video conferencing and such technologies. It is possible to do this in a way that maintains a responsible and proper position in the board; I would like to give the authorities the flexibility to see what rules they can set forth in that regard.
Is that amendment adequate?
I said I would consider the wording to take into account the Deputy's concerns and see if we can improve it.
With regard to my specific point, which I accept does not deal with the concerns of Deputy McManus, the Minister could put the word "all" before "other members of the meeting". If it read "he or she communicates by means of telecommunications service with all other members present at the meeting, for the duration of that meeting" I would not have a difficulty with it. My concern is that the Minister would allow a person, supposedly present at a meeting, to merely speak on the phone during a meeting to a minority of members or even just the chair, yet be considered present. We should encourage people to be physically present at meetings, though I accept that times are changing in terms of video conferencing. People may have constraints relating to time and places they must be. I warn the Minister to try to tighten up this area.
The Deputy's suggestion sounds sensible.
I move amendment No. 19:
In page 26, subsection (6), line 18, to delete "the provisions of this Act" and substitute "this section".
I move amendment No. 20:
In page 29, lines 7 to 10, to delete subsection (2).
Amendment No. 20 has already been discussed with amendment No. 18. Does the Minister accept that amendment?
No, I do not accept that amendment.
I did not expect the Minister to accept my amendment but it raises an issue about the judgment of the CEO; at some point we will have to trust them. I am not surprised and I will not press this amendment.
I move amendment No. 21:
In page 29, subsection (4), line 26, after "committee" to insert "to".
I move amendment No. 22:
In page 29, subsection (5), line 32, after "committee" to insert "to".
I move amendment No. 23:
In page 30, subsection (1)(a), line 15, to delete “concerns” and substitute “concern”.
I move amendment No. 24:
In page 31, between lines 15 and 16, to insert the following subsection:
"(6) A disclosure under this section orsection 22 shall be recorded in a register together with particulars of any interest of members of the Authority or persons to whom section 22 applies, and the register shall be available to public inspection during office hours.”.
I see where the Deputy is coming from but Ireland is a small country and it is difficult to appoint board members who do not have some related interests. This applies to the range of boards. We must trust in arrangements whereby board members who have a conflict of interests absent themselves from particular decisions. This occurs on a reasonably frequent basis due to the size of Ireland. To turn this into a legal disclosure mechanism would present certain difficulties and, while I see the intent behind this, I hope the Deputy understands we do not want to create a cumbersome system that would gridlock boards and require people to use legal channels. That would not be appropriate.
As I understand it, this would not be all that cumbersome. We are talking about a register that would record the interests of members of the authority and that would be available for public inspection during office hours. Is this not the amendment we are discussing?
There is not a legal structure involved in this; we are talking about a register, something we take as part and parcel of our work. I submit that this is the information provided by a backbench TD and it is part of the job description. The information is on a public register and people can see it. The media get excited from time to time but mostly they do not. The register relating to TDs is there if people wish to read it. This authority has an immense power, when one thinks of the importance of broadcasting nowadays. Broadcasting has an enormous influence on our lives and I suggest a member of an authority has more power than many backbench TDs.
With all due respect to him, it is extraordinary that the Minister, a member of the Green Party, has a difficulty with this. If he was on this side of the House he would fully support this measure and would not see a problem. Maybe that is a cheap shot because it is not always easy to comply when one is in the hot seat, but this is not a big deal with a big legal requirement. I do not know what the Minister is talking about. I am talking about a register that would record the interests of people in very powerful positions.
I will withdraw this amendment and reintroduce it on Report Stage if the Minister will not accept it now.
I will not accept it now but I will look at it. I earlier cited the section with a clause where I set out a statement specifying experience, expertise, terms of office and so on. To a certain extent that includes the interests of members. I want to use such a mechanism to set out where there is relevant information on a person's interests. My concern related to creating a balance because it could be cumbersome.
I will look at this matter and return to it on Report Stage.
I thank the Minister.
Is the amendment to be withdrawn?
Yes, but I may reintroduce it on Report Stage.
I move amendment No. 25:
In page 31, subsection (1), line 19, to delete "in any" and substitute ", in any contract".
I move amendment No. 26:
In page 31, subsection (1), line 20, to delete "or any proposed" and substitute "or in any agreement or arrangement or proposed".
I move amendment No. 27:
In page 31, between lines 35 and 36, to insert the following subsection:
"(3)Subsection (1) does not apply to a person as regards a contract or proposed contract for services in respect of that person.”.
We will suspend for Leaders' Questions and the Order of Business and resume at 5 p.m.
Amendments Nos. 28 to 30, inclusive, 32, 35 and 250 are related and may be discussed together.
I move amendment No. 28:
In page 32, subsection (2), between lines 25 and 26, to insert the following:
"(d) provide a regulatory environment that will sustain independent and impartial journalism,".
The wording, "sustain independent and impartial journalism", requires the authority to take account of a broad range of issues. The intent behind the provision is to ensure that the independent broadcasting sector produces sustainable, independent and impartial journalism. Concerns have been expressed regarding the resources available to independent broadcasters trying to meet their targets on news content. This is a difficult issue for which a balance must be struck. Independent broadcasters have fewer resources and a smaller market share and they operate within a difficult commercial environment. It is important, therefore, that the regulatory environment recognises the need for proper resources for journalism, including pay and other conditions. It should be sustainable in employment terms for all the workers in the industry, particularly in the news and current affairs area. We all know that this requires investment and people to have time working on issues so they can ask proper questions and present the news and impartial journalism. That requires resources and an environment which sustains it. Although it is a very general provision, it was considered with the intent of giving the signal to the regulator that such issues regarding the quality of conditions of employment for journalists and the sector in general must be maintained.
We are taking all the amendments together.
Amendment No. 29 is intended to fulfil a commitment given during the course of the Seanad debate on the Bill that the BAI would have a more proactive role in respect of the development of Irish language programming. It is an example of one of the amendments we have accepted.
Amendment No. 32 is intended to address the concerns of community radio broadcasters that their needs would be considered in the development of a digital radio strategy by the broadcasting authority of Ireland. I hope this amendment addresses the essence of amendment No. 250 submitted by Deputy McManus, and as a consequence at this point I do not propose to accept amendment No. 250.
In respect of amendment No. 30 put down by Deputy McManus, although I share her general concerns regarding the impact of broadcasting on children's development, specific provisions of Part 3, and in particular section 42, appropriately address this issue. As such I do not propose to accept this amendment.
I go back to my own days in opposition when I was able to present a Bill in private Members' time which set out provisions similar to this Bill. A range of different considerations had to be balanced but in my time in opposition I decided that was the best next step. I do not disagree with the sentiments outlined by Deputy McManus in her amendment but there is a consideration regarding the commercial development and support for children's programming. My intent, both in opposition and government, was to progress the restriction in advertising we are proceeding with in the Bill.
The Minister referred to another section of the Bill which he felt covered the point. What was it?
It was in Part 3 and section 42 in particular.
It is the codes section.
It is the advertising codes section.
I know Deputy McManus will speak to her own amendment but I would have thought this would complement the codes section. There are other areas with a potential to undermine the welfare of children, as it is put here, outside of advertising in terms of the type of programming, for example, when it is on, and getting the balance right between home-produced children's programming — on which we will have an amendment later — and being exposed to the commercial side of broadcasting. I am inclined to support Deputy McManus's amendment No. 30.
I only have one amendment for this section and I have no problem with the Minister's amendmentsper se. On amendment No. 32 in regard to community sound broadcasters, that is community radio, community television is not mentioned in regard to digital broadcasting, DTT for example. Is that intentional? Why did the Minister differentiate between community radio versus community television, which is a growing industry in Ireland? We have just had a regional television service launched in Cork recently and I know there is a strong community television station in Dublin. People working in that industry see opportunities that would need to be facilitated by the Minister in this legislation to benefit from digital television in terms of exposing local people to local television stations. The Minister might provide some clarity on that.
Amendment No. 35, which is grouped with these amendments, deals with section 28(6), which states, "The Compliance Committee shall each year make a report to the Minister in respect of the matters insubsection (5).” That section outlines how the compliance committee monitors the performance of broadcasters. I would like the report to be also made available to the Oireachtas committee, as we monitor the behaviour of broadcasters on what may be a more regular basis than the Minister.
I thank Deputy Coveney for putting forward my amendment; I thought it was to be the other way around and I was to do it. I am sure it was a mistake.
I am somewhat disappointed in the Minister's response to amendment No. 30. He knows as well as anybody that children are exposed to rampant commercialism. We do not really know the extent of the impact of what is happening to our children but we know it is happening. It seems that a code of practice is a kind of passive reference for bodies and organisations to work to. I propose something much more proactive in that is sets as an objective the protection of children from commercialisation and ensures children are not otherwise exposed to broadcasts which could undermine their welfare.
That is a very different approach. We should not under estimate the impact. We can all feel that the amount of advertising directed at children is far too much and I have further amendments I hope the Minister might consider, although they are quite radical in their intention to stop the focus on children by commercial interests. It is a feature of today's family life that we can ignore or begin dealing with. If we simply see children as another group of consumers we do them a disservice. When we look at what is happening to our children in terms of the early sexualisation of very young girls, the competitiveness that goes on in terms of how much one has, and whether one has the designer boots, we all know that there are all kinds of pressures on children and young people now that were not there in the past. I am not glorifying the past. However, this is a feature of modern life. How will we deal with it? In the 19th century it took a long time for people to realise that the exploitation of child labour should be unacceptable in a civilised society. It is not too extreme to say that I look forward to a day when we say the exploitation of children as consumers is unacceptable in a civilised society and that we have acted on the issue.
The Minister's heart would not be very far away from this, as evidenced by his attitude, and this is an opportunity to set an obligation on the authority which it cannot ignore or treat as something passive like a comfort zone. It should be an objective the board needs to meet. This may require changing the commercial nature of how advertising is structured within a broadcaster's budget. It is interesting to note that Deputy Coveney has an amendment that would bring us up to the norm across Europe in the amount of advertising time allowed in this respect. If that should happen, it would free up opportunities for us to protect children during the afternoon, when they are encouraged to watch programmes specifically designed for them. At the moment, they are also subjected to commercial interests specifically targeting them for commercial reasons. There are pressures and while I do not want to labour the point, if we do not deal with the issue, the problem will simply increase across the board. The IT explosion has happened rapidly and children are now using all kinds of technology, which is wonderful. However, we need to be aware of the social and cultural forces unleashed by it. I am disappointed by the Minister who does not seem to have thought this matter through sufficiently. As he is weak about it, I will be resubmitting the amendment on Report Stage. I ask him to take it seriously and listen more to the view of parents on what happens when they put their children in front of the television to take a breather.
Amendment No. 32 in the name of the Minister refers to community sound broadcasters, whereas my amendment refers to broadcasters across the range. Before we began to examine the Bill, I was not aware of the role of community television. While it is in its early days, it has great potential and should be encouraged in terms of being participative rather than passive. It involves people and engages with them. It talks to them and allows them to talk. It is a good development, albeit limited by its nature. I hope we can be more encouraging, although the Minister's amendment does not do this. I am surprised he says it does because it only refers to community sound broadcasters.
I will start with the Deputy's last point because there is a distinction, one of the reasons for which is that community radio is more feasible and economic than community television. One of the difficulties with DTT and applications for community television is that there is a cost in terms of a national transmission system. DTT has not yet evolved to reach community level. The cost of transmission is significant, ranging from €500,000 to €1 million, although I do not have the exact figure. The community service has been mandated with the must-carry cable provision, but the characteristics of the DTT platform are more difficult. It is easier for us to achieve it with community radio. There are technical reasons community broadcasting is, by definition, of more local interest. It is difficult for us to establish this in an initial DTT service, given that the public sector free-to-air platform that carries it is on a national distribution basis and there is a limited number of places available. These limits do not apply, however, on cable networks. Many of the provisions about which the Deputy is talking apply on a must-carry basis to cable networks. As regards community radio, it is easier for us to apply the provisions, which is what the amendment does in terms of digital broadcasting.
As regards the Deputy's point on advertising aimed at children, in the programme for Government we negotiated a provision to restrict the advertising of so-called junk food during children's programming. It mirrored the legislation I had introduced in Private Members' time. There is nothing to preclude the evolution of broadcasting rules concerning children. The code is reviewed every three years and is currently being reviewed. Therefore, there is a tightening of the rules. I would not rule out the preclusion of advertising directed at children based on age groups, transmission times or particular programming. I wanted, first and foremost, to deliver on the commitment given in the programme for Government. I recognise that while there is strong interest in restricting advertising targeted at children, as the Deputy said, it also helps to support children's programming, particularly by our public service broadcaster which tends to commission more such programming. As children's programming evolves, there is a balance to be sought between that support and the restrictions that apply. I place no limits on what it may evolve into, but my intent is to make the changes to which we are committed in the programme for Government.
There is merit in amendment No. 35 in the name of Deputy Coveney. While I do not accept the exact wording, I intend to table an amendment on Report Stage to require the Minister to lay any report received under section 28(6) before the Houses of the Oireachtas. I hope it will be acceptable in covering the intent of amendment No. 35.
I commend the Minister for dealing with junk food advertising, but the programme for Government is not restrictive. There is no reason he cannot do things that go beyond that to which he is committed. The amendment does not go beyond it. Essentially, it brings forward the terms of reference or list of functions to safeguard children from commercialisation, a hot issue in broadcasting and how it is funded. I am not saying children's programmes should be starved of funding, but it should be possible to restructure advertising to protect children and ensure children's programmes are made. If it is not included in the range of functions, the first thing an authority will state is that it is not part of its brief. That is what I am disappointed by. For example, why is "promoting diversity in control of the more influential commercial and community broadcasting services" more important than protecting children from commercialisation? I am citing this as an example because it is a good measure with which I am not arguing. However, on the balance of our priorities as a society, why is it so important? We cannot include a safeguard for our children which would place a certain duty of care on the authority. It is not an easy matter to deal with, but it is important that we do so. The legislation will operate for many years. I know advertising is hard to obtain, but the overall trend is to focus increasingly on children as consumers, rather than as human beings. We should be protecting their childhood which is getting shorter. In this regard, we can see what happens in other countries, particularly the United States. In other countries they have taken steps to ensure children are free from such pressures. I know the Minister agrees with the principle, but I am disappointed that he cannot include this measure in the Bill. I will give him time to reflect and hope he will revert to the matter on Report Stage.
Is it not odd that, when we talk about new technology and DTT which is supposed to open up opportunities, the Minister says community television is less able to provide such opportunities than cable services? That seems to be an anomaly.
On the last point, community television technology will evolve to allow local digital services. We hope to launch our DTT service next year. As I mentioned, the transmission technology is applied on a national basis. In the circumstances it is not yet ready for such an evolution, but I would not preclude this from happening down the line.
In terms of the amendments, I see commercialisation as advertising and we are looking at ending advertising around children's programmes. This is something I have considered and I believe Sweden is the only country that has taken this route. Extensive research has examined the effects of that. I sympathise with the Deputy in terms of the intent behind the amendment but one must take a variety of issues into account; I was aware of this balance when I was in opposition as well as in government. An amendment to have 35% independent production might be very attractive in terms of boosting the sector but one must take account of the financial position of RTE. Similarly, in this issue a balance must be struck between the attraction of not having advertising on television and the revenue that helps support children's programming. This matter is not fixed in time and a change has been made to a four-year review in this Bill, rather than the three-year review I cited. We are in the middle of that process and I welcome anyone who seeks to further restrict children's advertising to look to the code as a mechanism to do so.
On a point of information, it is not analogous. Restructuring of advertising arrangements can be done to protect children for a couple of hours per day if one allows for more advertising at other times of day. I agree with the Minister on the other issue and I have withdrawn that amendment. In terms of this issue, we are not talking about banning advertising; that is not referred to in the amendment. The Minister is jumping to conclusions. I am saying it should be part and parcel of the thinking of the authority that part of its duty of care is to safeguard children. That may mean banning advertising or it may mean paying particular attention to what is happening and reducing advertising. I know there is a code of practice but it may mean the authority has to be careful about what is advertised. At least this opens up possibilities and if it is not in the terms of reference and the list of functions it will not happen.
I take the Deputy's point. I read the word commercialisation to mean advertising but if the Deputy says that is not the intent I will examine the matter to see whether another wording can be written to meet her objective and guide the broadcasting authority to reduce undue commercialisation aimed at children. I do not disagree with that intent and must examine the wording to see that it has the effect the Deputy set out.
I move amendment No. 29:
In page 32, subsection (2)(e), line 30, to delete “facilitate” and substitute “promote and stimulate”.
I move amendment No. 30:
In page 32, subsection (2)(e), line 31, after “services” to insert the following:
(f) ensure the protection of children from commercialisation and ensure that children are not otherwise exposed to broadcasting that could undermine their welfare”.
I withdraw this amendment and will reintroduce it on Report Stage.
Amendments Nos. 31, 33, 34, 93, 164, 179, 191, 192, 197 to 199, inclusive, 201, 238 and 239 are related and will be discussed together.
I move amendment No. 31:
In page 33, subsection (1)(h), lines 23 to 25, to delete all words from and including “consult” in line 23 down to and including “116(5),” in line 25 and substitute the following:
"consult with the Minister under sections101(4), 102(2), 103(4), 104(1), (2) and (3), 106(3), 107(3), 111(3), 112(6) and (10) and 116(5),”.
I am introducing the requirement that the broadcasting authority of Ireland consult with the Minister regarding the public service broadcasting charter, a corporation's annual statement of commitment, new services and variations in channels, the establishment of subsidiaries and joint ventures by public service broadcasting corporations, advertising, borrowings, archiving, a code of fair trade and practice and the use of any moneys left over in the independent production account.
Amendments Nos. 33, 34, 93 and 192 are related. The principal amendment is amendment No. 192, whereby I propose that, following consultation with the broadcasting authority of Ireland, I will set the daily time for broadcasting advertisements and the maximum period given to advertisements in any one hour for public service corporations. Amendments Nos. 33, 34 and 93 are consequential textual amendments.
Regarding Deputy Coveney's amendment No. 164, I draw attention to the provisions relating to the codes of conduct and sectoral impact assessment. Section 95, which deals with the code of conduct, specifically section 95, subsection (2), requires that:
A corporation shall, as soon as may be, draw up a code of conduct in respect of controls on interests and ethical behaviour to apply to such categories of contractors for services as the corporation may specify before engagement.
Additionally, section 100, dealing with sectoral impact assessments, requires that:
(1) The authority shall, within 3 months of receiving a written request for advice from the Minister in respect of the sectoral impact of a proposal under this part, prepare and submit such advice to the Minister.
(2) The authority, in advising the Minister on the sectoral impact of a proposal under this part, shall consider the following matters —
(a) the extent to which the proposal impacts on —
(i) the availability, choice, quality and accessibility of services for audiences, and
(ii) existing sectoral services,
(b) the impact of the proposal on sectoral development, innovation and investment,
(c) the impact of the proposal on related markets, and
(d) such matters as the Authority may decide.
(3) In reviewing the sectoral impact of a proposal under this Part, the Authority shall consider such impacts as may arise within a 5 year period of the receipt of a written request for advice from the Minister under subsection (1).
These sections adequately address the Deputy's proposals and I therefore cannot accept the Deputy's amendment.
Regarding amendment No. 179, the requirement in section 100(2)(a)(ii), that a sectoral impact assessment should have cognisance of existing sectoral services, and the requirement in section 100(2)(c), that it should have cognisance of the impact on related markets, adequately cover the Deputy’s points. Accordingly I cannot accept the Deputy’s amendments.
In amendments Nos. 191 and 238 Deputy McManus seems to make compliance with section 108 mandatory for entering broadcasting advertising contracts and in the allocation of public funding. In section 28(2)(a) the compliance committee has the function to report, at the request of the Minister, on compliance by corporations with the requirements of section 108(3). This applies to all of a corporation’s activities, including those mentioned by the Deputy. This section already encompasses the amendments proposed and accordingly I cannot accept the Deputy’s amendments.
Regarding amendments Nos. 197 and 198, in page 106, subsection (2) line 30, after "length" I propose to insert "and on commercial terms". This covers the changes proposed by Deputy Coveney in amendment No. 198.
Regarding amendment No. 199, I propose to delete the requirement for the corporation to pay for any special examination by me under this section.
In amendment No. 201 Deputy Coveney seeks a legislative provision to be made for a comparative analysis of the public funding arrangements for public service broadcasters in EU member states every three years. The broadcasting authority of Ireland has adequate provision, under section 18, to engage such consultants and advisers as may be considered necessary for the performance of its functions. Specifically, I draw the Deputy's attention to section 124(9)(f) which requires the authority, inter alia, to take account of developments in public service broadcasting internationally in carrying out reviews of the adequacy, or otherwise, of public funding. What the Deputy suggests is already adequately addressed in the Bill and I cannot accept his amendment.
I am sorry about the length of my response but I have a final comment that relates to amendment No. 239, where Deputy Coveney recommends that the Minister take note of the importance of multi-annual funding to TG4 in broadcasting at a consistently high standard. Under section 99 I have provided that public service corporations must prepare strategic development plans every three years and must have regard to the resources available to them to achieve the objectives set out for corporations under this legislation. The level of funding is a matter that will be decided on an annual basis and will be informed by the recommendation of the broadcasting authority of Ireland, which will, no doubt, consider multi-annual projections and other relevant factors in making recommendations on future funding. The duties of the broadcasting authority of Ireland in this regard are set out in section 124 and the Deputy's proposal is already incorporated in that process. Accordingly, I cannot accept the Deputy's amendment.
I have a problem with the process. We are grouping amendments that have nothing to do with each other, though certain issues cross over one another. There is no relationship between the question of whether we should put in place a process for multi-annual funding to assist TG4 and the concerns that an organisation may have about anti-competitive behaviour in RTE. The Minister has given a comprehensive answer on why he does not accept the majority of these amendments but we are not giving them fair consideration. I did not have a problem with taking the previous group of amendments together because they were technical in nature but I disagree with the way we are dealing with the present group. I have tabled at least four of these amendments and while the first two of these deal with similar issues, the remainder are unrelated. If the Chair is amenable, I would prefer that we deal with the individual amendments when we reach them.
I have no difficulty with the Deputy's proposal but I remind him that the Bills office has proposed the grouping for the purpose of debate.
I am not interested in blaming somebody for this and do not want to slow the process but I do not feel we can consider the amendments properly while they are grouped.
I am happy to allow a debate on the amendments when we reach them.
I would be much happier with that arrangement, if the Minister is agreeable.
I am happy with that. The common theme of these amendments is the oversight and funding of the public service broadcaster but I take the Deputy's point, particularly given the cross-references to different sections.
On a point of information, we should lodge a complaint with the Bills office, or at least point out to it that the proposed arrangement is unworkable. Do consultations take place between the Bills office and the Department in regard to grouping of amendments? I presume a complex Bill such as this would require some sort of guidance.
The Department liaises with the Bills Office on the grouping of amendments in an effort to bring order to our deliberations. Grouping is intended to resolve the difficulties that arise in regard to the number of amendments which we have to discuss. The intent is not to confuse the committee or create awkwardness. I acknowledge these are complex matters, however. If we can make our working arrangements on a case-by-case basis, we may be able to surmount the challenge. Given the number and complexity of amendments, we will encounter certain difficulties.
The key would be for the Bills office to ensure there was a limit to the number of amendments that can be taken together. Even if they cover the same ground, they could be dealt with in manageable groups. We should suggest a maximum of between five and seven amendments because this system will not work otherwise
I will ensure the Deputys' comments are brought to the attention of the Bills office and I will grant them latitude when we reach their amendments.
If we are to do that, an exception should be made only where a drafting issue needs to be corrected throughout the Bill. When large groups of Opposition amendments are taken together, it is difficult to keep our train of thought when we flick back and forth.
I move amendment No. 32:
In page 34, between lines 10 and 11, to insert the following subsection:
"(3) In fulfilling its function undersubsection (1)(a) the Authority shall consider the needs of community sound broadcasters in respect of digital broadcasting.”.
I move amendment No. 33:
In page 34, subsection (1)(c)(ii), line 46, to delete “and (4)”.
I move amendment No. 34:
In page 35, subsection (1)(d)(ii), line 3, to delete “and (4)”.
I move amendment No. 36:
In page 36, subsection (3), line 18, to delete "a strategy" and substitute "the strategy".
Amendments Nos. 37 to 39, inclusive, are related and may be discussed together.
I move amendment No. 37:
In page 37, line 33, to delete line 33 and substitute the following:
"32. — (1) In this section "commercially sensitive information" means——
(a) financial, commercial, technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the party to which it relates, or could prejudice the competitive position of that party in the conduct of its business, or
(b) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the party to which it relates.
(2) It is the duty of the Authority to so conduct its affairs as".
Section 32 outlines several proposed duties for the broadcasting authority of Ireland and its statutory committees. One of these duties is a regular review of their operations to ensure they do not impose unnecessary administrative burdens on the broadcasting sector. Subsection (3) requires the broadcasting authority of Ireland and its statutory committees to publish a statement setting out how they propose, during the period for which the statement is made, to ensure they do not impose unnecessary administrative burdens. Amendment No. 38 is a minor amendment which for the purpose of clarity specifies a three year period for the first such statement.
Amendments Nos. 37 and 39 impose a general duty on the broadcasting authority of Ireland not to disclose commercially sensitive information received from public service, commercial or community broadcasters during the course of its regulatory functions unless the party concerned consents to it or the law requires the release of such information. This is intended to provide broadcasters with a reassurance that commercially sensitive information provided to the broadcasting authority of Ireland which could damage their commercial position if published would not be unnecessarily released. This would allow for a deeper engagement between the regulator and the broadcasters.
I do not have any problem with amendments Nos. 38 and 39 but, in regard to amendment No. 37, will the concept of protecting commercially sensitive information restrict the authority when it comes before this committee? I fear that it would become more difficult for us to question it on the activities of broadcasters because if the questions were difficult it might give the excuse that it cannot divulge commercially sensitive information. I accept, however, that we cannot have a scenario in which we force the disclosure of genuinely sensitive information that damages the competitiveness of a broadcaster. Does the Minister understand my concerns? I do not want the provision to be abused and used as a shield.
Amendment No. 37 defines "commercially sensitive information" as "financial, commercial, technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the party to which it relates, or could prejudice the competitive position of that party in the conduct of its business, or...information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the party to which it relates."
I will set out for the Minister an example which might illustrate my case. If we wanted to establish the amount by which RTE dropped its prices for television advertising to better understand the difficulties in the economy, would that be considered commercially sensitive information? We may be trying to assess the decrease in advertising revenue based on the prices charged by RTE compared to other players because the former is a price leader in that sector. If RTE was accused of abusing its position by undercharging for advertising to make life impossible for others, would we have to seek commercially sensitive information? That is a crude example
It is not a bad example. I understand that RTE's general advertising rates are public information but the specifics on day-to-day management are not. There are provisions if there are competitive or other concerns, as through competition law people will have a means to have any such complaints or difficulties assessed. It may be preferable to have these structures or processes applied than have the Oireachtas committee or anybody else go through what may be commercially sensitive information. However, that does not preclude people having the means to have such issues investigated if there are concerns. The example given is a good one. It would be up to the authority to make the call on what was commercially sensitive. It does not preclude an investigation in other ways or the relevant authorities having access to such information. For the authority to work effectively, it must have the confidence of the broadcasters it regulates and information must be sensitively handled. It is a difficult call and it is up to the authority to make it in each case.
The example is pertinent, as there are difficulties in seeking advertising, a matter about which there is concern. Is the Minister indicating there is absolutely no role for the broadcasting authority in the example cited by Deputy Coveney? That is surprising. Is the Minister suggesting that if a complaint is to be made, it should be made to the Competition Authority and that there is no role for the broadcasting authority?
What about the complaints committee?
With regard to Deputy Coveney's question on whether the matter will be dealt with by the Oireachtas committee or the Competition Authority, when it comes to commercially sensitive issues that are difficult to assess, the first port of call is the Competition Authority.
Instead of any structure within this legislation.
The first port of call is the Competition Authority.
Yes, in the specific example quoted.
I will explore that example. If a complaint is taken to the Competition Authority and upheld, will the broadcasting authority have the power to intervene once there is a ruling? The broadcasting authority will be a regulator; this legislation creates a difference, particularly for RTE. There may be an RTE board but there will also be an overarching regulator. I am trying to play out how that will work.
We are going into very specific details of an example and it is hard to legislate for them. In this example, as I understand it, the Competition Authority publishes findings and has a means of enforcement and mechanisms to act upon the decision made. However, this does not preclude the authority acting within its remit. On the specific issue raised by the Deputy, the authority is mandated to act.
One can see how the Competition Authority acts when dealing with companies or professions but is the Minister satisfied it has the same remit with regard to broadcasters and that it is fully covered in that respect?
Will the Deputy repeat the point?
There has not been any such action. Is the Minister satisfied the Competition Authority has a remit which covers broadcasting? Does it not tend to indicate something is a matter for the regulator?
I understand there have been——
One could consider ComReg which is involved on the issue of prices and charges.
I understand the Competition Authority has investigated whenever complaints have been raised. I am satisfied it has powers in that regard.
I move amendment No. 38:
In page 38, subsection (4), line 8, to delete "day" and substitute "day and shall be for a period of 3 years".
I move amendment No. 39:
In page 38, between lines 22 and 23, to insert the following subsections:
"(9) The Authority shall not disclose commercially sensitive information obtained from a corporation or the holder of a contract underPart 6 or 8 in pursuance of the Authority’s functions under this Act.
(10) The Authority is not contraveningsubsection (9) if the disclosure——
(a) is made with the consent of the corporation or the holder of a contract under Part 6 or 8 to which it relates, or
(b) is required by law.”.
Amendments Nos. 40 to 42, inclusive, and 44 to 46, inclusive, are related and will be discussed together.
I move amendment No. 40:
In page 38, between lines 27 and 28, to insert the following subsection:
"(2) Prior to making a levy order the Authority shall once every three years present to the relevant Joint Oireachtas Committee a three year budget including the levy intended to be imposed for the approval and consent of the Joint Committee prior to a levy order being made.".
I am grateful for the opportunity to speak to this amendment. The authority will make a levy order and it makes sense for the industry to be levied in this way. I hope the Minister shares the concern evident in the amendment, as we need to ensure a commitment is made that the levy will be transparent, agreed upon and supported democratically. One need only look at the unfortunate experience of FÁS to see how an organisation can lose its way very badly in serving the public interest while at the same time spending much money on items such as manicures. Given human nature, there is always a danger in any organisation and if income is to be raised by way of a levy set by the authority, there should be a requirement to indicate in written form what the money is for. There should be a rigorous approach, which as far as I can see is not provided for in the Bill but should be. If people can see where the money is going, it makes it much easier for them to take responsibility. Otherwise there will be a possible opportunity to take advantage.
I have said to the Deputy that I do not have any objection to information being provided for the relevant Oireachtas joint committee, as in the example of a three-year budget. However, I cannot agree to the committee giving its approval or consent, as that effectively would give it power over the regulator and not lead to effective independent regulation. I will consider the various provisions to see if it is possible to put mechanisms in place to ensure there will be a presentation of a three-year plan to the committee, but I will not extend them to give the committee power of approval.
I am happy with that approach, as long as it is not just about the development of a levy. Rather, it should be about how the money is spent and where the benefit lies.
That is a useful function that the committee can perform. In my experience, when regulators appear before the committee, it is absolutely appropriate for them to justify their——
That is not what I am talking about. I am not referring to the regulator appearing before the committee. There should be a clear and published budget structure, to ensure everybody knows how the levy raised is to be spent, how issues are developed and what are the benefits are. People can then buy into it. I am less concerned about the role of the Oireachtas committee than transparency and commitments in budgetary terms. That is my main concern.
I will check our provisions to ensure they provide for such an audit, a forecasting of needs and the setting out of such issues.
Is the Minister saying he has amendments?
Amendments Nos. 44 to 46, inclusive, deal this issue. I agree with the intent which is set out in those three amendments.
They relate to the Minister.
I am happy for the broadcasting authority to appear before the committee.
I am talking about having these issues out there.
If the broadcasting authority comes in, the issues will be "out there".
If there is to be transparency, this should be done properly. A statement should be made which is accessible to the public and it should not be dependent on an Oireachtas committee. To what extent are people aware of the work of this committee? We need a more rigorous approach so that people can see what the levy is for and why it is being introduced. At the end of three years, we will then be able to measure its effectiveness. Bringing it before a committee is not the way to do it.
I reassure the Deputy that such a presentation will be available on the broadcasting authority's website.
Is that written into the Bill?
Where? All I see is a reference to the fact that it will be submitted to the Minister.
It is in section 37(7) on page 41. It takes on board amendment No. 46.
Line 22. It reads: "The Authority shall publish, with the consent of the Minister and the Minister for Finance, on a website maintained by the Authority," and the section has been further amended by my amendment No. 46, which will ensure that the relevant Estimates are also published.
The Minister's amendment No. 44 is seeking to achieve the same thing as my amendment No. 42, but I do not know if it is a coincidence. I am trying to avoid empire-building in the shape of the broadcasting authority deciding on a levy system and bringing in more money than it needs so that, like a goldfish which has been put into a bigger goldfish bowl, it just gets bigger. It will then continue to spend money because it has the capacity to raise it.
I have serious reservations about the levy system because there are broadcasters of all shapes and sizes, from the biggest in the country to community television and radio broadcasters, who will not be able to pay a substantial levy. Any levy needs to be justifiable and there needs to be an Estimate in advance of it being proceeded with. We all need to know what the amount will be and arguments will need to be made in its favour. That will lead to a lean, efficient system that does not cost any more than necessary.
It is a burden on the industry, on RTE, TV3 and radio stations across the country. Persuasive arguments were made to me in favour of fundamentally changing how the broadcasting authority is funded and not requiring the industry to fund its own regulation. We may look at the issue again on Report Stage but if there is a levy on the industry we need it to be as tight as possible. No money should be expended by the authority that is not absolutely necessary because every euro that is spent has to be raised by broadcasters through commercial revenue.
We are trying to do the same thing, though I concede that the Minister has more advice available to him. I reserve the right to come back to the issue on Report Stage. My proposal is probably covered by the Minister's amendment, with the exception that Deputy McManus referred to, namely, the need for the Oireachtas committee, as well as the Minister, to examine an Estimate. We would then be able to question the authority on any increases in its Estimate for particular services in the following year, such as travel expenses, and in so doing keep its members under pressure to be efficient.
I agree with the Deputy, which is why I am happy to accept the principle. We will try to formulate an appropriate wording on Report Stage but should not hand over approval and consent.
I do not want the power of approval but an opportunity to question and expose fat where it exists.
That is a very healthy check to have.
Regulation, though much-maligned, works and my Department deals with more regulators than any other Department, whether in the area of energy, communications or broadcasting. While the relationship between the market and a regulator is often fraught and difficult the system has generally been successful. A regulator can bring efficiency and certainty to a market, particularly in such an area as this where complex and difficult commercial contracting decisions have to be made. Although a cost is involved, the correct legal manner in which the BCI has operated has been vital to the broadcasting industry. Regulatory and legal certainty generates savings and I hope the new authority will continue in that vein.
The lesson from other jurisdictions is that levies funded by industry, rather than the Exchequer, may be more stable and better for the industry in the long run than being dependent on the budgetary cycle for resources. The levy system works well in other, related, industries and the industry receives a fair system and a level playing field in return, ensuring operators do not always have to look over their shoulder at Government decisions.
On the question of how the levy will apply, section 33 sets out the relevant provisions. It provides for the authority to consider a variety of levy orders relating to public service, commercial and community broadcasters. The authority will need to apply its own good sense and take cognisance of public policy in how it makes any such orders.
I agree with the Minister that a self-financing arrangement can work well but it needs to be transparent. People should feel they can trust the system and that they will not be taken advantage of. We are discussing this in the abstract but has the Minister carried out any analysis of the likely cost? The levies could be penal or they could be relatively manageable. Before setting up an authority such as this, some financial assessment should have been carried out and some assessment made of whether it would be sustainable into the future. For example, what staffing levels are required?
The cost estimates for the current Broadcasting Commission of Ireland are €5 million, though additional functions will be taken on by the new authority. The current economic and budgetary conditions also provide a check and the Department of Finance is involved in any staff increases across all the authorities, regardless of their funding mechanism. With that level of oversight, and in the current environment, there will not be runaway growth in staff numbers and that will present a challenge to any new authority in how it takes on the additional functions. They can do this and we must work with them to see how we can assist. We must ensure that, while the regulatory service is provided, a large regulatory structure that imposes an unnecessary cost on industry does not develop. We can strike this balance once we approve the Bill and set up the authority.
Is paragraph (c) of amendment No. 42 covered? This sets out that the detail of a levy order should require the approval of either the Minister for Finance or the Minister for Communications, Energy and Natural Resources. My concern is that there should be a political input in deciding who is targeted by the levy and for how much. There is a provision for the authority to make a decision relating to public service broadcasters, community broadcasters and a particular class of broadcasting contractor. In terms of policy, it would be interesting to have the authority come before this committee to discuss how it would share the burden of financing its regulation system. I am not suggesting the committee should have the final say but we should have an understanding of the concerns of individual broadcasters which believe they might be asked to pay too much for their share of the burden. We are over the idea of an estimate; the authority will justify why it is imposing the levy. However, there is nothing in the legislation that gives guidance on the matter of how the authority will apply the levy and to whom. The Bill merely states the authority will make separate levy orders for public service, commercial and community broadcasters and a particular class of broadcasting contractor. The suggestion is we will leave it up to the authority to decide who it will target and for how much. Who is targeted is a matter of policy. It is a question of how the burden will be shared between, say, RTE and independent broadcasters.
I refer the Deputy to section 5(7)(b) which provides that a resolution of the Oireachtas will be required in this regard. This is a strong provision that makes a strong statement and allows for a resolution annulling the order if the Oireachtas is not happy with the nature of the development.
I propose the deletion of section 7.
How stands amendment No. 40 in the name of Deputy Liz McManus?
I may resubmit it on Report Stage.
I move amendment No. 41:
In page 39, subsection (5), lines 1 and 2, to delete paragraph (a).
Subsection 33(5) states:
Any surplus of levy income over the expenses incurred by the authority in the discharge of its functions relevant to that levy in a particular financial year shall either——
(a) be retained by the Authority to be offset against levy obligations for the subsequent year, or
(b) be refunded proportionately to the providers of broadcasting services on whom the levy is imposed.
I propose that we delete the first of the two options. If a broadcaster which was going out of business had overpaid its levy contribution that year, it might not exist the following year to benefit from the money carried over. If there is a surplus, it should be given back rather than carried over in the authority's bank account. How does the Minister view this matter?
It is an unlikely circumstance that involves a very short timeframe. At the end of the year the levy will be retained. It is unlikely that in such a short period a broadcaster will go out of business in the manner outlined by the Deputy. The money should be retained, as reducing the following year's levy is the same as returning the money. I do not believe we should provide for an alternative process with money going back and forth in an unnecessarily complicated way. This provision should stand.
I move amendment No. 42:
In page 39, lines 8 to 18, to delete subsection (7) and substitute the following:
"(7) (a) The Authority shall be required to bring an estimate before each House of the Oireachtas and get approval from the Minister for Finance for such an estimate before the beginning of each financial year.
(b) Approval of the Minister of Finance and the Houses of Oireachtas will be required for the estimate of expenditure for the financial year, before any levy orders are constructed or made.
(c) The detail of a levy order shall require the approval of the Minister for Finance.
(d) A request shall be made available to the Joint Oireachtas Committee at least once every two years on the Levy order mechanism being adopted by the authority and the multi-annual budgeting in place for the Authority.”.
I may return to this amendment on Report Stage. It is similar to amendment No. 44 in the name of the Minister.
Amendment No. 43 is a drafting amendment in the name of the Minister. It has been discussed with amendment No. 2.
I move amendment No. 43:
In page 39, subsection (1), line 27, to delete "its functions" and substitute "their functions".
Amendment No. 44 is in the name of the Minister. It has been discussed with amendment No. 40.
I move amendment No. 44:
In page 40, lines 25 to 33, to delete subsection (1) and substitute the following:
"37.--(1) The chief executive, following the agreement of the Authority, shall not later than 30 September in each year, submit estimates of income and expenditure to the Minister in respect of the subsequent three financial years, in such form as may be required by the Minister, and shall furnish to the Minister any information which the Minister may require in relation to such estimates, including proposals and future plans relating to the performance by the Authority, the Contract Awards Committee and the Compliance Committee of their functions, as required.".
I move amendment No. 45:
In page 40, subsection (3)(a), lines 48 to 50, to delete all words from and including “,” in line 48 down to and including “Minister” in line 50.
I move amendment No. 46:
In page 41, subsection (7), lines 24 and 25, to delete all words from and including "part" in line 24 down to and including "(1)" in line 25 and substitute the following:
"such estimates of income and expenditure as are required to be prepared under subsection (1) or a summary of them".
I move amendment No. 47:
In page 41, subsection (4), line 39, after "broadcasting" to insert "services".
Amendments Nos. 48 to 50, inclusive, 55 and 77 are related and will be discussed together.
I move amendment No. 48:
In page 42, subsection (1)(d), lines 30 and 31, to delete “offending against good taste or decency” and substitute “causing harm or offence”.
These amendments aim to replace throughout the Bill the conceptual phrase "taste and decency" with the phrase "harm and offence" on the grounds that the latter is a more objective test that, in essence, will achieve the same ends. I also argue that a duty on broadcasters not to cause harm will encompass the important matters raised in amendment No. 49 tabled by Deputy McManus. As such, I do not propose to accept that amendment.
In respect of amendment No. 50, also proposed by Deputy McManus, I have provided for a requirement in section 42 that the Broadcasting Authority of Ireland prepare codes governing the standards and practices to be observed by broadcasters regarding children. Section 42 also provides for the continuation of the existing Broadcasting Commission of Ireland codes, namely, the code of programme standards, the children's advertising code and the advertising code set up in April 2007. These provisions provide a level of protection for children, while recognising the needs of broadcasters to finance their operations. Overall, I consider that the provisions of the children's advertising code provide a balanced response to concerns raised by the Deputy. Therefore, I cannot accept amendment No. 50.
I welcome the fact that the term "good taste or decency" is being removed. The term "good taste" is old-fashioned and has no meaning now, although I do not believe decency is old-fashioned. The term "harm or offence" is more appropriate. I am sorry Deputy Kelly is not present because we could have continued our discussion on Podge and Rodge; I am sure the aim of these characters is to be offensive.
I think it was Senator Walsh who referred to Podge and Rodge.
It was Senator Walsh; my apologies to Deputy Kelly.
I suspect Deputy Kelly might find Podge and Rodge very humorous.
The Deputy is right and I hope the record is corrected.
On amendment No. 49 in my name, I would have thought it would have been acceptable for the Minister to include it. Children are very vulnerable to influence and spend a lot of time watching television; more than many adults. The section is rather vague. I would have thought it is fairly obvious there should be no incitement to crime and it should be about a little more than that.
I did not expect the Minister to accept amendment No. 50. The idea of having a provision for the period of the day dedicated to children and without advertising may seem remote but to repeat what I said earlier, it is possible without having undue impact on the budget of a broadcaster. It should be encouraged and I imagine if it was done, it would have very broad support, particularly from parents of children across the country. Others would also like to see this benign progressive approach being taken by our national broadcaster. It is the national broadcaster we are talking about because it concentrates on providing children's programmes and does it very well. I am not critical of what is happening in terms of the content but the stuff which goes with it bothers me, and there is an opportunity to address it in this Bill.
We addressed several of these issues in our discussion of a previous amendment. The code, as it evolves, allows for different treatment of children of different age, recognising there is a quantum difference. A definition of a child, as I understand it, is any person under 18, and there is a quantum difference between the 15 to 18 year olds and three to seven year olds. The review of children's advertising code which is taking place acknowledges the issue of age differentiation and the recognition of different considerations for a 16 year old looking at advertising at 6.30 p.m. and a six year old or five year old looking at television at 12 p.m. As I understand it, in the review of the code there is increasing sophistication in the ability of the code to take into account those policy objectives.
We may have to protect the youngest children but it is better to develop that in the code. The reason for the code is that it can evolve, taking in some of the very subtle differences which exist in this area between what might want to be achieved for a five year old or six year old and a 16 year old. Those mechanisms exist in the code and there are ways for us to continue to adapt it to achieve the objectives as set out here.
It may be worth looking at that closely. I can think of an example — I will not deal with it in detail — where one of the smaller broadcasters showed material around 6 p.m. which was very inappropriate for young children. We can have codes and people will say it is great we do, but whether they work or not depends on somebody making a complaint. Not everybody makes a complaint. It would be very useful to do a very close audit of what is happening in terms of content and advertising up to the very early evening stage. I have one or two examples and although they may not be very common, they would not comply with the code.
One of the developments in this new legislation with regard to a continuing breach by any broadcaster of some of the codes we have set is the ability for the new authority to set fines. The authority is not just a monitoring body but rather an enforcing body. It has real powers where such breaches of the code, which would cause harm or offence, can be rectified within the codes system as it is set out.
With regard to children's programming, one of the other constraints is that much children's programming may be broadcast into Ireland via satellite from another jurisdiction where we do not have the ability to enforce our own codes. There is a difficulty in that regard in terms of creating a two-tier approach, where our own broadcasters would be restricted in a way some programming broadcast into the State is not.
We have been working on the international front via the audiovisual media services directive to try to get regulatory powers over the broadcasting brought into the State. To date, we have the ability to refer to other broadcasting authorities with problems but we have limited regulatory powers. It is another constraint but it is not an excuse for us in enforcing our own code.
I accept it is very limited because of that. Is it dependent on a complaint made or does the authority have a proactive role?
The broadcasting authority will monitor issues as a matter of course on a continuous basis.
Amendment No. 52 is a technical alternative to amendment No. 51 and the amendments will be discussed together.
I move amendment No. 51:
In page 43, subsection (2), lines 33 to 37, to delete subsection (2), and substitute the following:
(2) The total daily times for broadcasting advertisements in a television broadcasting service must not exceed a maximum of 20 per cent of the total daily broadcasting time and the maximum time to be given to advertisements in any hour shall not exceed a maximum of 12 minutes, as set out in the Council Directive.
Amendment No. 52 is not an alternative to this amendment but I agree with it in its essence. I will not make the mistake again of proposing one of Deputy McManus's amendments. I had that amendment until I changed it but I do not know why my amendment, which is exactly the same as Deputy McManus's, is not there.
With amendment No. 51 I propose that we allow the authority to make a determination in terms of advertising time of the overall percentage of time allocated to advertising, as well as the hourly average time, as Deputy McManus proposes. I propose we increase the period from ten minutes to 12 minutes per hour and that the maximum percentage would go from 15% to 20%.
There is pretty solid reasoning behind this. Across the European Union, most advertising time ceilings are at 12 minutes rather than nine or ten minutes. I am not saying the authority should allow advertisers to have 12 minutes of advertising in the hour but rather that this is the maximum it can allow at any time. It can set the limit at the appropriate level. For example, next year will be a very tough year for broadcasters with regard to advertising income. The broadcasting authority may decide that for 12 months it should allow 12 minutes in the hour for advertising because of the financial constraints on broadcasters as a result of the reduction in the price of advertising they can demand. The year after it may decide, for policy reasons, that it wants to return to nine or ten minutes per hour.
We have broadcasters in Ireland competing with stations that are beaming into Ireland from abroad and which have 12 minutes of advertising in the hour. They compete in the same market for advertising in Ireland but our Irish-based broadcasters are only allowed ten minutes per hour. To be crude about it, that is unfair. I do not suggest that it should for ever be the case that 12 minutes in the hour or a full 20% of total daily broadcasting time should be devoted to advertising. However, as has been pointed out, because this legislation will be in place for the next 20 to 30 years or whatever, let us at least give the authority the wriggle room to be able to expand, if it deems it appropriate, to the European norm. If the Minister is not disposed to accepting the amendment and wants to have a belt-and-braces approach to the regulation, perhaps provision could be made to allow the authority to obtain the consent of the Minister of the day to do this.
I appeal to the Minister to consider the amendment as a pragmatic measure that will allow the authority, if it deems it appropriate, to sanction an increase in the number of advertising minutes per hour. We are only asking him to expand the limit to match that which is already in place in respect of most other broadcasters across the European Union, with the exception of those which do not carry any advertising. My proposal relates only to television but perhaps it should also apply in respect of radio. However, it is more relevant to television, particularly at a time when there has been a dramatically negative impact in the context of what broadcasters can demand in respect of the number of minutes of advertising they carry.
I am interested in the Minister's views on this matter. I will speak to amendment No. 52 when Deputy McManus has done so.
Amendment No. 51 is worthy of consideration. I was not aware that the kind of difference to which Deputy Coveney refers existed. While I am not necessarily enamoured by the idea of more advertising, if it were accepted, the amendment could offer an opportunity to reduce the level of advertising aimed at children without adversely affecting the ability of broadcasters to attract the income required. The amendment has merit and deserves to be considered.
Amendment No. 52 proposes a fairly straightforward change. I urge the Minister to give it serious consideration and accept it. The Bill states that "the maximum time to be given to advertisements in any hour shall not exceed a maximum of 10 minutes". My amendment proposes that the phrase "averaged over two consecutive hours" will not lead to an increase in the amount of advertising but it will permit a certain level of flexibility. I cannot count the number of occasions on which a discussion taking place on radio or television in respect of an important matter has been rushed or brought to a swift conclusion as a result of the requirement to remain within the 60-minute time frame. This does not make for good broadcasting. There is a feeling that matters come to a somewhat artificial end. The provision in this regard is unnecessarily restrictive.
If a mechanism were adopted whereby advertising would be averaged over two consecutive hours, this would ensure that such advertising would remain in place. The overall limit would remain unchanged but there would be a level of flexibility. As a result, a person saying something significant would not merely be pushed aside because of a commercial imperative. I do not know how many times I have heard interviewers say "Well, we have to pay the bills. Goodbye". That mechanism is quite crude in the context of good quality broadcasting. I hope the Minister will accept my amendment, which does not change anything but it will create the kind of flexibility that will facilitate the creation of better quality in terms of content.
Amendment No. 52 represents a pragmatic response to the difficulties of running a radio station. If the Taoiseach visits Cork and happens to give an interview on 96FM at 20 minutes to midday, the station will want to use the full 20 minutes available. If there are three or four advertising minutes left in the hour, those at the station should be able to finish the interview uninterrupted, broadcast the news at noon and then make up the deficit in respect of those advertising minutes in the following hour. I do not see this being abused to any great extent by broadcasters. If it was, they would suffer in terms of listenership.
We should compare the Irish market to the British market. I understand that, in the context of time, commercial radio stations in Britain do not have any restrictions on advertising. They let the market decide. If a radio station has too many advertisements, people will not listen to it. Advertising is perceived as an irritant in the context of listening to radio programmes. British commercial radio stations allow listeners to decide what is the acceptable number of advertising minutes per hour. I do not suggest that we should follow suit. However, we should at least give to broadcasters the flexibility to allow them to average out their advertising minutes per hour over two consecutive hours. As a result, and particularly if there is a valid reason for doing so, nine minutes of advertising might be broadcast in the first hour and 11 minutes could be broadcast in the next. I do not see any ideological difficulty or matter of principle arising in this regard.
When one begins to consider some of these matters, one can understand the need for a regulator. Difficult decisions must be made in the context of supporting and assisting broadcasters while catering for the public interest.
Deputy Coveney's amendment is significant in that it relates to television broadcasters. One of the most attractive aspects of the television service here has always been that it does not carry that much advertising. When I travelled to America, the volume of advertising carried by television stations there made me recoil to some degree because it did not relate to the standard to which I was used.
I like watching television advertisements, particularly because they are as entertaining and as well-made and are sometimes better than some of the programmes. I am not, therefore, opposed to advertising on television. However, there is a certain point where the quality of broadcasting begins to be undermined. In that regard, I am somewhat reluctant to change the traditional custom that applies in respect of Irish television stations and increase the level of advertising.
The days when we could watch only own television stations are gone. There is now a multitude of channels available. This could be a reason for providing greater flexibility or increasing the amount of time dedicated to advertising to support broadcasters. However, it could also lead to their being undermined. If we create a form of broadcasting in Ireland that is less attractive to viewers as a result of high advertising content, this could have the effect of reducing the distinction between our broadcasters and those from outside whose channels are transmitted here by means of cable, digital or satellite platforms.
One must ask how we are to respond to the current recession. Broadcasters are in a difficult position because the advertising market on which they rely is contracting. Matters will be extremely difficult for them next year. I am concerned that while a response which would increase the number of advertising minutes available to them might provide a solution in the short term, in the medium to long term it could prove to be incorrect. Such a response could change public perception of our broadcasters and create an environment wherein they are not seen as being distinctive, special or better than others, in terms of the programming available. I am not suggesting there is an absolute mathematical formula that can be applied in this area. It is often easier for me to deal with issues on the energy side of my portfolio because the laws of physics apply and one can be fairly precise, whereas when dealing with matters relating to broadcasting one must make judgment calls. While I can understand the reason for the amendments, I am reluctant to agree to them as I believe what they set out to achieve could undermine the quality of broadcasting and, as such, broadcasters.
On the second amendment, when one examines audience statistics one notes that the audience at 6 p.m. differs greatly from the audience at 4 p.m. and that advertising minutes at 6 p.m. are worth multiples of those at 4 p.m. While I respect Deputy Coveney's points, his sense that this would be applied only on the odd occasion, such as when the Taoiseach is on local radio, shows huge faith in human nature. My instinct is that if we legislate to provide for such greater advertising flexibility, the regulator and companies will see this as a sign to stack advertising for periods of high listenership. Again, one must consider whether an Irish person tuning into a local radio station at 5.45 p.m. to hear the latest news wants to listen to ten minutes of advertising. I wonder, in the short-term economic circumstances in which we find ourselves, if we would be doing more damage than good to the Irish broadcasting industry if these amendments are accepted.
While I can understand the reason behind the amendments, I am reluctant to accept them.
The door seems to be slightly ajar and perhaps I can prise it open a little further. On amendment No. 52, let us take the example of commercial radio stations in the UK where there is no regulation in terms of advertising minutes — I am open to correction if I am wrong but that is my understanding in this regard. A person who turns on the radio at 5.15 p.m. when driving home, at a time when listenership figures are high, will change stations rather than listen to ten minutes of advertising. If there is one thing we have managed to do in Ireland it is that we have created good competition in the radio marketplace between the stations provided by RTE and commercial radio stations which are privately-owned and operated.
I believe sound broadcasters would be cautious about stacking hours. If the Minister wants to tighten up the amendment to allow for averaging out of minutes over two hours and include an extra restriction to the extent that there cannot be any less than eight minutes advertising in an hour, that is fair enough. It is a pretty poor system that does not allow for some flexibility in terms of facilitating broadcasters in this regard. I do not believe that every radio station in the country, because the 4 p.m. to 5 p.m. slot is not as busy as the 5 p.m. to 6 p.m. slot, will air only five minutes of advertising between 4 p.m. and 5 p.m. in order to air 15 minutes of advertising between 5 p.m. and 6 p.m. People will switch off from stations if they do so. There is a great deal of competition among national and local radio stations for listeners during the 5 p.m. to 6 p.m. slot and as such they would suffer as a result of doing so.
On amendment No. 51, the Minister is correct in saying that what is required in this regard is a judgment call. We do not want to turn our television broadcasts into the kind of commercial television stations available in the US which break for advertisements every five minutes and between every sporting move in a game of American football. A question arises, however, as to who should make this judgment. The question I am posing is whether the Minister is in a better position than the regulator to make that judgment.
While it is our job to put in place the parameters in this regard, it is surely the job of the regulator to decide, within those parameters, what is the most appropriate restriction on advertising, in terms of minutes, that we will apply for the next 12 months. If as the Minister states we should be putting some faith in the regulator, because good regulation is good for the marketplace in terms of taste, quality of broadcast and allowing commercial operators to survive, then surely we should allow the regulator to make that decision.
I am proposing that we expand slightly the parameters in which that decision can be made to provide for what is the norm in most European countries and what is the norm in Ireland in many television stations that are not Irish broadcasters. The advertising minutes on many television stations, excluding TV3, TG4 or RTE, is 12 minutes in any hour. I accept we are obtaining quality in respect of Irish broadcast television.
I hope that the regulator will make the judgment call each year in regard to the number of minutes of advertising required in an hour. This could be re-assessed after 12 months and, if the regulator believes 12 minutes is too long, it can be reduced. Currently, broadcasters are restricted to such an extent that the ceiling becomes the norm. I do not believe there is enough flexibility to allow the regulator to make a judgment call that allows them to go above that which pertains now. While provision is made for a reduction in the amount of time allowed for advertising, no one is suggesting that current advertising limits be reduced from that which pertains now. I am proposing that we at least provide the regulator with the option of increasing it slightly, if needed and, if necessary, that approval be sought from the Minister before doing so. Let us not put the regulator in a strait jacket because a particular Minister believes that as Irish television is reasonably good in terms of its balance and advertising minutes, we should leave it as it is.
We are setting up a new authority and this is the legislation that will apply in this regard. Let us put some faith in the regulator and set the parameters that ensure it can make sensible decisions on an annual basis in regard to the amount of advertising minutes for which broadcasters must provide.
I appreciate the Minister's point that this provision could be abused. The amendment could be amended — Deputy Coveney made a reasonable suggestion in this regard — to ensure it is not abused and to provide for a certain spontaneity that currently does not exist, particularly in respect of interviews or stories being developed on radio. I find it odd that broadcasters are constantly under pressure to ensure they do not go one minute over the 60 minutes within which they must air advertisements. It is a huge investment in man hours to ensure a quite rigid arrangement is adhered to. Perhaps the Minister would give further consideration to the amendment. I will resubmit an amended form of the amendment on Report Stage, if necessary. It is a pity because I am sure the Minister agrees there are times when it is inappropriate to have such a restrictive arrangement in place and that it is possible to provide for it in a commonsense way.
We can come back to the issue on Report Stage but I am not accepting the amendments. Deputy Coveney is correct, there is not a similar regulation in the United Kingdom. My experience of London was getting into a mini-cab in which one invariably heard a variety of radio stations. The Deputy may call me old-fashioned but when I get home or on the way there I like to listen to Mary Wilson, Matt Cooper or George Hook, my local and national radio presenters. I like to be able to tune in and in the short time available to me hear the news.
Ireland has one of the highest radio listenerships in Europe. Some 87% of Irish people listen to the radio at some time during the day. It is hugely successful because there is a relationship with the listener. One can get right into somebody's head by giving him or her time to go through a match or an economic issue. Radio, local and national, works because we have got the balance right. I am reluctant to change the arrangements because it would lose its quality. That is my primary concern, apart from being concerned about the commercial viability of broadcasters.
On the application of codes and regulations, nobody is sitting with a stopwatch every minute of every day. It is only when there are instances of persistent or systematic breaches that the code is enforced in terms of a fine or, ultimately, revocation of a licence. There are specific one-off instances when an interview will over-run or when something will happen similar to the events of 11 September 2001 that will throw the schedule completely awry, but that does not mean the code is applied every minute of every day with a specific check to ensure no one has gone 30 seconds over time. Amendment No. 92 provides that the fine imposed is for repeated failure, not a one-off incident. There are checks and balances to recognise that in broadcasting sometimes there is an over-run or, on a very rare occasion, one has a story that will run into the advertisement break. I listened to what the Deputy had to say and will come back to the issue on Report Stage. My concern is to ensure we do not undermine broadcasting. At the same time I understand the intent of trying to support broadcasters.
Amendments Nos. 54, 58 and 62 are related to amendment No. 53 and may be discussed together.
I move amendment No. 53:
In page 43, lines 41 to 44, to delete subsection (4).
This amendment relates to religious advertising. I recognise this is a sensitive issue. I also recognise there are people in opposition and government who do not split on the issue, based on party. I am satisfied there are a number of people in Fine Gael who are happy with thestatus quo and that there are plenty in Fianna Fáil who would like to see a change. I have introduced a number of amendments to allow a limited form of religious advertising which would not be unreasonable but which would also supply the safeguard for the authority to prohibit all forms of religious advertising if it deemed this appropriate after a period. In other words, if we introduce the provision now and it does not work, we can get rid of it. Amendments Nos. 53 and 54 seek to delete subsections (4) and (6) which refer to the current prohibition on religious advertising. Amendment No. 58, also in my name, seeks to introduce a new paragraph (k)which reads:
That any advertising, teleshopping material, sponsorship and other forms of commercial promotion employed in any broadcasting service which relates to religious faith, or the promotion of religious organisation, publication or teaching is in no way divisive or discriminatory in relation to any community, section of community or person and that a positive tolerance towards diversity and multiculturalism is shown at all times.
That is a long-winded way of saying we need to show tolerance, given that Ireland is now a multicultural society. Amendment No. 62 reads:
(5) a broadcasting code prepared by the Authority undersubsection (2)(k) may prohibit advertising in a broadcasting service of religious advertising considered by the Authority to be intolerant of diversity or divisive in its content or message indeed the Authority shall reserve the right to prohibit all forms of religious advertising, as was the case prior to the Broadcasting Act 2008 should the Authority deem it necessary to introduce a new code to do so.
That is the safeguard mechanism. I would like to think we live in a tolerant and mature society that allows the advertising of a crib on radio before Christmas or a book with religious content, whether it be Catholic, Protestant, Islamic or Hindu. Will the Minister consider including a wording that would show a level of tolerance and maturity as regards the approach I am trying to bring forward, while at the same time recognising that we cannot, under any circumstances, allow religious advertising to get out of hand with negative consequences? Therefore, we need the safeguard that would allow the authority to revert to thestatus quo, a complete prohibition on all forms of advertising.
We were all lobbied when RTE was forced into making a decision on withdrawing the advertisement placed by Trócaire before Christmas or Easter last year on the basis that it had religious connotations. For me, it was a case of political correctness gone mad. There is nothing wrong with somebody having faith and an advertisement for a product that is in some way related to a religious organisation as long as tolerance is shown. If we are setting up a new authority, it should have the capacity to make a judgment call on the issue. It is up to us to give it the necessary powers should it need to do so.
A later amendment in my name seeks to require the authority to appear before the Oireachtas committee once every year to discuss the effectiveness of the codes being adopted and any new amendments it may wish to see adopted. This applies to so-called junk food advertising, alcohol advertising, religious advertising and all the other codes dealt with in the section. I await hearing what the Minister has to say before going into any more detail on the matter.
We are out of the frying pan and into the fire because, as I said, when the power of the media meets the power of politics, there is a three-way convergence between religion, politics and the media. That is what makes this such interesting and difficult legislation. It is much easier to debate a gas (amendment) Bill and legislate happily, safe in the knowledge that no one will get into trouble.
I was taken by the comments of Senator Mullen during the Second Stage debate in the Seanad when he made the not unreasonable point that we were allowing the advertising of fortune tellers who used tarot cards, but not allowing religious advertising. It made me believe there might be some validity in what he was saying.
We listen to the Angelus before the "Six One News".
Do not mess with the Angelus.
We are not allowed to have an advertisement that is mildly related to a religious activity.
I am very taken by the argument. No one is looking to restrict the practice of religious services or hinder people practising or developing their faith and encouraging others to move towards a position of faith. However, we need to be very careful because it is a sensitive issue and can be divisive. It could be used in a way we did not intend. Earlier today I spoke to someone who made the point that we should go back to the good old days of the 1960 provision of a ban on religious advertising — full stop. That would be easier for all sides in that it would not bring us into any grey areas or subtle distinctions between what was and was not religious advertising.
There has been a progression in the nature of legislation which is further progressed in the provisions of section 41(4) which states: "A broadcaster shall not broadcast an advertisement which addresses the issue of the merits or otherwise of adhering to any religious faith or belief or of becoming a member of any religion or religious organisation". This is qualified in section 41(6) which states:
Nothing insubsection (4) is to be read as preventing the broadcasting of a notice of the fact—
(a) that a particular religious newspaper, magazine or periodical is available for sale or supply, or
(b) that any event or ceremony associated with any particular religion will take place.
It explicitly allows such advertising and does not necessarily preclude other advertising, provided it is not in breach of section 41(4).
I have said this is a difficult and sensitive issue. I have received correspondence from a range of parties, all of good religious intent, some urging me to open legislation and others with equally strong, valid and well thought out convictions of religious authority urging me not to do so. There is a recognition in the religious community that we could open ourselves to difficult developments if there was unrestricted access to religious advertising. We need to take account of the Murphy case in the High Court and Supreme Court. As I understand it, Mr. Justice Barrington gave the judgment. I will try to summarise him and hope I am accurate. The main concerns were that in opening up religious advertising it could allow for a very divisive development. I do not envisage organisations such as Trócaire working in that regard. However, it has the potential to open up divisive views or statements. Second, we need to be careful not to have a provision that would allow someone with access to wealth to use religious communications in a way that was supported by their wealth. Again, this would lead to a slight divisiveness.
I wanted the matter to be debated on Committee Stage because it is absolutely right for us to consider what we could and should do. It is one of the most difficult legislative tasks because we are dealing with conflicting interests. I have a very strong liberal interest in allowing religious advertising. As it is part of our lives, why preclude it? At the same time I have a conflicting alarm bell going off in my head that this could be applied in a way that we did not intend. Sometimes the best of intentions lead to unforeseen consequences. In particular, with the use of advertising which is such a powerful medium, we need to be careful.
Without specifically accepting or rejecting Deputy Coveney's points, I will agree to consider them and the points made in this debate and come back to him on Report Stage. I have one personal thought, having given consideration to the statistics for the numbers of minutes of programming carried by broadcasters. Given the role that religion still plays in society — I am sure this will continue to be the case — the number of minutes of programming in different categories was remarkable. Educational programmes were represented by a tiny blip. There was a massive column indicating the amount of sports coverage. There was another massive line for news and current affairs. For religious programming the figure was minute. I reflected that it was unusual, given that religion plays such a strong role in society, that the amount of programming dedicated to discussion of religion or people's faith was so small. The debate should not be just in the context of advertising. We need to ask whether broadcasters reflect something that is of interest to society. I am not sure it does. However, I am loath to make a rash call and open up advertising to religious activities, given the concerns expressed in the High Court and Supreme Court and by some religious authorities.
I agree with the Minister that we should exercise caution. I understand the reasons for the amendment. RTE's religious programming has generally been very good and innovative. It is an important part of reflecting society's values. Advertising is not about programming but selling a product. That is where the difficulty lies. It is not possible to strike a balance in advertising to ensure there is not dominance by a very wealthy source of religious advertising because the purpose of advertising is financial and commercial.
There are great difficulties because of the nature of advertising. How can we ensure we would not discriminate by, for example, one church being able to dominate the airwaves because it had money and another being completely sidelined because it did not? How should religion be defined? One person's religion is another's sect. There are many difficulties in that regard. It is not possible to decide that a group has sufficient members and is, therefore, a religious group. While I may be wrong, I do not believe there is a definition of religion in the Bill. In making provision for such advertising we would need a very robust definition of what we were talking about.
There is a cultural hangover which results in the Angelus being shown every day. It is part of a tradition that is very important in our history and lives. At this stage it has become a moment for meditation. I would hate to see it go on the grounds that it was not adhering to some code. In a way it transcends any sectarian view of it.
In talking about advertising a regulator who is given the job of going into what is a minefield should have some role to play in determining whether it would be wise to go into the minefield at all. Enabling the regulator to investigate the matter and come back to us with recommendations on how it should be done would perhaps be a much more prudent and fruitful way to deal with the matter. I am not comfortable with the idea of simply slotting it in by way of an amendment. We have examples of this having been done in the US, and this approach is not admirable nor is it the way to go. That said, as a good politician always summarises his or her point, when one considers the material relating to the advertising of tarot cards, it is difficult to see how we could justify it. It is not an easy issue, but the way to deal with it is not to insert an amendment, as there are major implications we should be seriously considering.
I want to add one comment to the thinking on this issue. In January 2004 the ban on religious advertising on radio and television was retained following lengthy consultation in the Department. Approximately 150 submissions were received from the public. A strong argument was made that religious authorities should not be able to buy airtime for religious advertising to deliver an unchallenged message, which other interests, due to a lack of resources, might not be able to match or counter points such as those made by Deputy McManus. That is not an attack on any religious order, group or faith, but a recognition of the fact that this is a much more sensitive subject than the advertising of a food or another material item.
We are talking about issues that are much more powerful and stronger in their effect. The fact that, similarly, there is a ban on the advertising of politics is something we can understand, namely, that it would steer us in a direction similar to that in America. Some might argue that the American system is not a bad one. I went to mass in Long Island in my cousin's parish and was surprised to note that the mass leaflet was full of advertisements for the local butcher, undertaker and so on. I was bemused by the fact that it was full of advertisements, but in every other way the experience was similar to attending mass in my own church at home. Culturally it was not that different and the church authorities there were able to accommodate such advertising. It is not that there are no possibilities here, but my instinct is that the system we have has served us reasonably well and I would be reluctant to change it for that good reason.
I remember speaking to somebody who is not religious about this issue and he said to me that I should be careful what I wish or pray for in these terms because it can quickly get out of hand if a wealthy individual, with a strong religious faith or belief, wants to spread a message and is willing to spend a great deal of money doing so. That is true.
In tabling these amendments, I was trying to get the Minister to consider an approach rather than accepting the exact wording I proposed. I would be comfortable with allowing for responsible religious advertising, whether it be that of a message, a faith, or a product that is linked with any one religion, but we would need to assess such advertising on a regular basis to monitor how it is working. We would need to invite the authority concerned to appear before the committee to assess how all the advertising codes are working and propose changes, improvements, restrictions or prohibitions, if necessary, in areas where they are not working. In allowing a more open approach to the promotion of any faith or religious product through advertising, we could send out a strong message that if the provision is abused, it would be withdrawn. The heavy-handed potential response would be there in reserve if the effort to open up some form of religious advertising is abused. That is what I was trying to achieve in these four linked amendments.
On the issue of defining religion, a religious organisation or a religious faith or belief, the Bill contains those words. That is a problem whether we maintain thestatus quo or change it. Section 41(4) on page 43 states that a broadcaster shall not broadcast an advertisement which addresses the issue of the merits or otherwise of adhering to any religious faith or belief. It is further addressed in subsection (6) which the Minister quoted, which allows for the advertising of a particular religious newspaper, magazine or periodical. That raises the question as to what constitutes a religious newspaper or magazine.
However we address this issue, if we allow for any form of religious advertising, we need to define religion or faith, unless we opt to prohibit any form of religious advertising. However, I hope Ireland has moved beyond that.
I would be cautious in how we deal with this area. This is not a simple debate and there is not a simple solution. Mine is an initial effort to get the Department thinking about a form of wording and an approach to this issue that people could live with and that would not expose the public to the actions of a crazy individual from whatever faith with a considerable amount of money at his or her disposal who wants to make a big impression in an irresponsible way.
If the Minister will agree to give this some thought and get his officials to do the same, I will withdraw these amendments with a view to perhaps returning to this discussion on Report Stage.
I am not thinking of the person with deep pockets who wants to dominate completely. That is one aspect of this issue, but there is also the aspect of equality of esteem. If we opened up the system to allow for political advertising, what would that mean? It would mean Fine Gael and Fianna Fáil would have a dominance because they are big parties, while the Green Party would have a tiny part of such advertising because it is much smaller. If we had such an arrangement, it would ghettoise different denominations in perpetuity. The parallel in religious terms is that of Catholic, Protestant and dissenter. The dissenter will always be treated because her or she does not have the capacity to complete with the big players or he or she will be kept in a small part of the spectrum that would be provided by advertising.
There are many issues around this subject. Is our relationship with Northern Ireland not something we should be considering with regard to changing the rules? Is that an aspect of it that we should be considering? I believe it probably is one we should be considering.
I have one final comment and do not want to take up much more of the committee's time on this matter. We have focused on the negatives and the threats but not on the potential positive influence that may come from slightly loosening the reins in this area. It may be the case that the Catholic Church wants to spread a very positive message in the build up to Christmas to get people reflecting on what Christmas is about, their faith and family rather than the materialism with which the church has to compete at Christmas time. I would not be pushing this amendment if I did not consider there were positives to it. It is not merely about an ideological liberal view that all faiths should be allowed express themselves through advertising. There is that aspect, but many people in Ireland get emotional support through their faith. Church leaders of whatever religion can have a positive influence, particularly at certain times of the year, in terms of encouragement, support and the expression of positive messages over the airwaves. I recognise that that can be abused also. There is a judgment call at play. Let us not pretend that it is all potentially negative. Religion should be a positive thing but, unfortunately, it is not at times in terms of the division and separation it causes within communities. Primarily the beliefs of all religious communities in Ireland are positive messages of support, understanding, tolerance and all of the other things religion should be about. That is not the same as selling a box of Coco Pops. Religion is not a product necessarily but it may be ifThe Irish Catholic is advertising its publications. It may also be the case that a message is being sold or that it constitutes an expression of support.
Politicians do not talk about those things too often but there is a large section of Irish society that still gets a lot of support and reassurance from the church and their faith. In some cases they are small minority groups that do so. Local community radio may target those groups. We should allow some form of flexibility through advertising. I will leave it at that. I do not want the debate to end on a threatening or negative message because, predominantly, the message between religious leaders and members of their community should be a supportive and positive one. Advertising has a potential role in that supportive relationship, as long as we can keep the kind of negative, bigoted view of which we are all nervous off the airwaves.
I agree with everything Deputy Coveney has said. The issue is whether in order to support that we have to allow advertising and what the nature of that advertising would be.
What Deputy McManus said is correct, if we allow politics we would have a different ball park in terms of advertising. There is a grainy picture from the 1970s of Oliver J. Flanagan in Portlaoise. He used to cycle around with a sandwich board saying, "Here comes Oliver J." on the front and "There goes Flanagan" on the back. I always thought it was a very attractive bit of political advertising.
And not even a helmet.
Not a helmet in sight. As I understand it we do not have to define something that is commonly understood, such as religion, in legislation. We would then be in a difficult situation if we try to define it in that we would also have to define politics and we would be into very tricky territory. We can return to the matter on Report Stage.
One quote from Mr. Justice Barrington who gave the judgment in the case of the proceedings brought by Roy Murphy was that, "Moreover, the Oireachtas may well have thought that in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals." That is a well crafted sentence.
It is good for us to have this debate because it is a sensitive issue and there are ongoing cases that have to be considered by the broadcasting commission currently. It is right for us to examine the provisions and to consider what we should do. It would be unfair if we did not give the new authority clear direction on the issue. I do not think we can hand over responsibility purely to the regulator to decide where are the limits. It is preferable for us to be as precise as we can on the matter because it is better considered in the Parliament.
I am sorry for cutting across the Minister but if this is to be progressed my concern is that we would be overly prudent rather than going too far. I accept fully what Deputy Coveney said. Programming is where this kind of work can be done. The regulator could advise the Minister on the matter. There is nothing in the legislation that would prevent him advising the Minister with regard to the matter.
My instinct is that that would be the worst of all worlds because it would be mixing politics and religion on an ongoing basis where one would have to make an assessment of the regulator's advice. Is Deputy McManus talking about advice on particular judgments or the wording?
No, the whole idea.
The regulator has made submissions on the Bill. In the 2004 consideration I am certain the regulator would also have been involved. Obviously, we take the regulator's view into account.
Does the Minister remember what the regulator's view was in that consultation?
No, I do not have it but I might dig it up for Report Stage.
It might be advisable to have a look at it.
Ultimately, it is for us to make the call. The debate is useful in framing our own consideration and coming to a conclusion on Report Stage.
I presume the Minister will make his conclusion before Report Stage because that will result in an amendment.
I can see the intent of the Deputy's amendments and the good intention behind them but I will not accept them. I would welcome any discussion in the meantime on the wording of our own provision, whether it should give greater precision or clarity. The area is difficult and deserves consideration. I am happy to accept the thoughts of any Member in that regard.
I would have thought it is pretty clear cut in the Bill.
If it is then perhaps that is the way we will deal with it.
Is Deputy Coveney withdrawing the amendment?
We were going really well until about ten seconds ago. I was about to withdraw the amendments but now I am being told that the Minister is only seeking to tighten up what is already in the Bill. In other words, he is not inclined to even move in the direction of my amendments and he is asking us to tighten up what is already in the Bill, as if to say that is too liberal an approach.
I am not saying in which direction we should amend the provisions in the Bill but, for example, in amendment No. 62 advertising is allowed as long as it is not intolerant of diversity or divisive in its content. That presents an almost impossible task to the regulator because the definition would be so difficult to construe on a case-by-case basis.
Is it not the nature of religion to be divided in the good sense that people form part of a group to adhere to a particular faith? It would be very difficult to monitor.
For me this is about applying common sense but I accept the problem is that there is always someone who tests these things. Either way we will return to the matter on Report Stage so I will withdraw the amendments.
I propose we adjourn.
Will we finish with a prayer?
We were going well.